Protection of Information Bill: Briefing

Intelligence Legislation

11 June 2008
Chairperson: Mr C Burgess (ANC)
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Meeting Summary

Adv Howard Varney, a member of the drafting team of the Protection of Information Bill, briefed the Committee on the scope and purpose of the Bill. He set out that this Bill had sought to re-categorise the classes of information requiring protection. The Bill was trying to limit unnecessary secrecy, while at the same time trying to achieve proper protection, where appropriate, and provide appropriate remedies for those breaching secrecy. The team had included representatives from a number of departments, South African Police Services and the Defence Force, and the final Bill resulted from substantial input from them, and responses to public submissions.

Adv Varney took the Committee through the Bill, clause by clause. During this process he also pointed out that some changes had been made by the State Law Advisers, which he suggested should be detailed by that Office in a subsequent meeting, and he furthermore suggested areas in which he believed that there were deficiencies. All of these were flagged by Members for further discussion. Salient points were raised. The Bill included all organs of State and all persons obliged to carry out duties and obligations. The Minister of Intelligence Services had been granted powers to exempt an organ of State from certain obligations. The new State information architecture noted that information not in the hands of the State would not be protected under this Bill. Only certain information in the hands of the State would be protected, under the two categories of valuable information, which must be protected from destruction, alteration or loss, and classified information, which must be protected from being disclosed or disseminated. Records were classified as confidential, secret, or top secret. The new approach demanded a reasonable and rationed approach to determinations and required a balancing of the different interests of the public and the State. The Minister must lay down national standards within one year. Departments and organs of State would be entitled to lay down their own policies, within 18 months of commencement of the Act, but these must be consistent with national standards. He explained the concept of the National Interest, and the criticisms levied against it, in some detail, and explained the commercial and personal information categories.
The methods of classification, and the problems of classifying ‘en bloc’ were also outlined. Declassification was also explained. The Bill attempted to close the previous loopholes around possession of classified information by unauthorised persons. The penalties were set out and it was noted that the drafters had attempted to deal with the concerns raised by the media that investigative journalism could fall foul of the Bill. The concerns around the appeal procedures and implementation and monitoring were also explained and it was noted that both had been criticised for perceived lack of independence. The offences and penalties, and in particular the use of the wording for these categories, were explained.

Members raised questions around the scope of the Bill, with some expressing reservations that every Organ of State should be permitted to classify, and that too wide a power to classify had the risk of corruption. Others agreed with the wide powers, since the problem with the previous legislation had lain in the exclusions. The Committee asked for international and African country comparisons, and requested a clear indication of the changes made by the State Law Advisers. They further questioned the financial implications of the Bill, and the need to consult further with all departments, including those involved in the drafting.

Meeting report

Call for public submissions
The Chairperson pointed out that there had been requests for extensions. He asked the Members for comments.

Mr L Landers (ANC) noted that he would not like this to drag on. He said that the Justice Portfolio Committee would accept submissions even after the deadline, and while they were considering bills, but this did not mean that matters could drag on endlessly.

Dr S Cwele (ANC) said that the hearing should be in the week 23 to 25 June. He believed that perhaps the initial responses on broad issues should be accepted, with detailed submissions to follow. He would not like to have perpetual postponements. He suggested that those requesting extensions be invited to send in their initial comments first. The Committee still had to decide who to call to make oral submissions.

Adv P Swart (DA) said that the Committee should look at whether to extend the advertisements more broadly. Last week the Committee had discussed whether there should not be further publicity.

Mr D Bloem (ANC) felt that there should be a cut off date and that the meeting should proceed as planned in the following week.

Mr S Abram (ANC) noted that this Bill had taken years in production. To expect the public to submit their comments in a matter of days was unfair. He was not suggesting that this should be open-ended, but he believed that there should be a reasonable time limit. He realised that Parliament was nearing the end of its term, but the interests of society must be bone in mind.

The Chairperson suggested that the programme was tight, and it was clear that the requests could not be extended beyond a reasonable time. He supported Dr Cwele's suggestion of an extension to 20 June, and agreed that the Committee should write to those who had called for extensions. Late submissions would, in principle, also be accepted.

Protection of information Bill: Briefing by Adv Howard Varney
Adv Howard Varney, Advocate at the Johannesburg Bar and a member of the drafting team, briefed the Committee on the Protection of Information Bill (the Bill). He noted that he was not a Member of the Department but a member of the drafting team, which had also included drafters from the Departments of Defence, Justice, SA Police Services (SAPS), SA National Defence Force (SANDF) and others.

Mr Bloem thought that the Minister of Intelligence would have been presenting the Bill and explaining it. He was not sure that having one of the drafters to present the Bill was procedurally correct.

The Chairperson noted that Adv Varney had been authorised by the Minister to deal with the presentation. He would take Mr Bloem's concerns forward, but he thought that it would be sufficient to hear the presentation.

Adv Varney asked if this Committee had already heard a presentation on the Bill.

The Chairperson clarified that the Bill was presented to the Joint Standing Committee on Intelligence (JSCI).. This was a separate Committee, and not everyone was aware of the Bill.

Adv Varney said that he would then be expand on the explanatory notes and would deal with the representations of civil society, while also giving a general overview of the Bill. 

Adv Varney said that the Ministry had decided about 18 months ago that the existing legislation, which was scattered across a number of Acts, needed to be overhauled. None had regulated how information was to be protected, the criteria to use, how it was to be protected, and there was also a lack of enforcement mechanisms. Government departments generally were relying on the Minimum Information Security Standards (MISS), which set out different classification levels, and spoke of the need to security clearances. However, those were merely policy and standards. This did not mean that they were not enforceable; last year there had been a Constitutional Court case in which Independent Newspapers argued that MISS did not provide an enforceable legal regime. The team from government argued successfully that it was enforceable through the provisions of the Protection of Information Act and other laws, although it was conceded that the regime was less than perfect. This decision supported the need to put together a comprehensive law to protect State information, which was defined as information in the hands of the State. Information not in the hands of the State could not be protected under this Bill.

There had been a number of different versions of the Bill and the one now presented was the version that had been certified - and to some extent altered - by the State Law Advisers.

The Preamble set out the purpose and intention, which was to provide real protection to information needing such protection. The new values of the Constitution had to be observed, although it must be accepted that there were times when secrecy was necessary, to protect the national interest or national security. The national interest was a wide concept, which included national security. The Bill was trying to limit unnecessary secrecy, while at the same time trying to achieve proper protection where appropriate and provide remedies for those breaching secrecy.

The definitions clause attempted to be exhaustive, and cover all terms used in the Bill. However, some of the submissions had pointed out some problems. Definitions needing tightening included the intrinsic value approach, and there were some other changes, which he would not deal with at present. He suggested that the different formulations should be considered in detail and he would let the Committee have them. An additional definition was now inserted to define "the national security"

Ms H Mgabadeli (ANC) noted that there was already legislation in existence, dating back to 1982, and she asked what process had been used to arrive at this Bill. The definitions in the 1982 Act were far from practicable.

Adv Varney noted that the drafting team had found the old law deficient in many respects, and chose not to use that as a model for the new law. If took its cue from the submissions of representatives from the different departments as to what was needed. This would become clearer as he spoke to the information architecture.

Ms Mgabadeli wondered how much of the old Act had been included, and what had been left out. The old pieces of legislation had been in operation until now, and she wondered what had informed such a drastic change as not even to consult the old legislation

The Chairperson suggested that the presentation should proceed, and perhaps this could be included.

Ms D Smuts (DA) noted that the 1982 law was pre-Constitutional law, and it was long overdue to re-conceptualise the law to bring it in line with the Constitution.

The Chairperson noted that this was correct, but Ms Mgabadeli had been rather more concerned with the process.

Adv Varney commented that the Ministry was motivated by the new Constitutional order, with its very different values from the past. There was not a great deal of the old legislation that had been transposed into the new. He suggested that close attention be paid to the objects, which set out in detail what the law was attempting to achieve.

Clause 3, dealing with the application of the Bill, had generated debate. It applied to all organs of State and all persons obliged to carry out duties and obligations. The Minister of Intelligence Services had been granted powers to exempt an organ of State from certain obligations. For example, certain organs of state (but none were named in the Bill) may not need classifying powers and could be exempted. Exemptions were also provided for the duty to de-classify everything that was formerly classified as "restricted". He suggested that it would be likely that the Department of Defence would get an exemption on this. The State Law Adviser had deleted clause 3(4), dealing with conflict of laws. He was not sure why that had been done. The original version had noted that a Court should come up with a reasonable interpretation.

Adv Swart suggested that perhaps this needed to be flagged for further discussion.

Mr Landers suggested that the State Law Advisers should be present at the next meeting to explain why they had dropped clause 3(4). He agreed that it be flagged for further discussion.

Dr Cwele noted that the State Law Advisers and Parliamentary Legal Advisers were present.

The Chairperson said that the Ministry had informed him that the State Law Advisers had made certain changes, and he had asked that these be pointed out. He agreed that the matters should be flagged as the presenter was going through the Bill. Adv Varney would later identify all the changes between the JSCI- presented document and this one.

Adv Varney asked the State Law Advisers to produce a document that highlighted the changes. He would detail the major adjustments.

Adv Varney noted that Laurie Nathan, who served on the Commission for Intelligence Reform, had thought that any Ministerial powers should be subject to parliamentary consideration. Another criticism was that the minister's power to act "on good cause" shown was too wide. He himself did not agree with this and he had set out his comments under paragraph 22 of his memorandum. The mere fact of discretion did not mean that this would be unqualified discretion, and the Minister must make a decision in pursuance of the objects of the Act and the broad constitutional framework.

Adv Varney said that Chapter 2 dealt with the nature and general principles of information. He tabled an overview of the new State information architecture. Information generally included any facts or detail, in a material or non-material form. State Information was information in the hands of the State. Only certain of that must be protected. Protected information would be safeguarded under the two categories of valuable information and classified information. Valuable information must be protected from destruction, alteration or loss. Classified information must be protected from being disclosed or disseminated. Records were classified as confidential, secret, or top secret. This was set out in clauses 4, 5 and 6.  The general principles included upholding of constitutional values of openness, while safeguarding key interests such as saving of lives, promotion of diplomacy and governance.

Clause 8 dealt with the intrinsic value approach. The security sector members of the drafting team said that this related to whether information should be protected or not. The new approach demanded a reasonable and rationed approach to determinations and required a balancing of the different interests of the public, who had an entitlement to access, against legitimate governmental interest.

Chapter 3 dealt with the national departmental policies and national information security standards. In terms of clause 12 the Minister would prescribe national information security standards. The Minister would have a year to make these standards, which would affect the roll out of the Bill.

Adv Varney said that he would recommend that clause 9(1) should use the word "may" and not "must".  The Bill already set out certain categories of information. If the Minister was to have further categories, it would be useful to give him a discretion in 9(1)(a) and (b). The Intelligence Committee had suggested that there be parliamentary input into the decisions flowing from Clause 9.

Clause 10 dealt with departmental policies and procedures. Departments and organs of State would be entitled to lay down their own policies, within 18 months of commencement of the Act (in other words six months after the Minister had laid down the national standards) but they must be consistent with national standards.

Chapter 4 dealt with protection of State information against alteration, destruction and loss, which was referred to as "valuable information". Clause 12 set out the process to declare information as valuable, and clause 13 outlined how the information was to be protected.

Chapter 5 dealt with the categories of information requiring protection against disclosure. These were sensitive information, commercial information and personal information. Clause 14 was originally worded as "may" although now it reflected "must". Adv Varney urged the Committee to consider returning to the original versions. Under the intrinsic value approach, officials always had a discretion whether to protection information or not. The change to "must" implied that all information must be protected if it fell into one of these categories, and that was not the intention of the drafters. They wanted to indicate that information was capable of being protected, not that it had to be protected.

Clause 15 set out the national interest of the Republic, and this had been heavily criticised by different commentators. The idea was to set out matters that would be considered as apart of the national interest, and would include the survival and security of the State and its people, as well as a range of other matters. The view of he drafting team was that in the modern State it was not possible to confine protection to information only on security matters. It might be important to protect other matters as well, even if for limited periods of time. The Mail and Guardian and other media had suggested that the concept of "the national interest" was inviting anything to be protected. He did not agree that this was so. Firstly, the "must" should be "may"; secondly, the protection may only take place through classification, and thirdly a record could only be classified if different elements at different levels were met. Chapter 5 was merely setting out the categories that may be capable of protection against disclosure.

The concept of the national interest was also interesting. Clause 1 had set out certain values. Whenever decisions were made they had to take these values into account, and weigh them up against the national interest, which would change from time to time. It would not be in the national interest to protect any document disclosing illegality. The Constitutional Court case of Independent Newspapers v Minister of Intelligence Services had contained some interesting comment, referred to on page 11 of his explanatory memorandum.

Commercial and personal information categories had also been subject to some interesting debate. Commercial information would be financial information held by an organ of State and the circumstances in which this should be protected were set out; including concepts of prejudice to the entity or organ of State. It was possible that at times strategic industries dealing with the State should have their interest protected.

Personal information referred to information held by the State, which, if disclosed, could endanger the life, physical health or welfare of an individual. Originally privacy was included, but had been removed at the request of the South African Law Reform Commission, who was currently putting together a Bill dealing with privacy. The general welfare provision was inserted by the State Law Advisers, and it could conceivably include privacy issues.

Chapter 6 dealt with classification of information, which was the only way to protect information against unauthorised disclosure.  Earlier versions of the Bill had included "designation of information". Members of the security sector felt that there might be occasions when information that was not recorded, but was known, should be protected. "Designation" was thus information not in material form. The drafters had been concerned with this concept and were not sure how it would be enforced. Adv Varney was pleased to note that the State Law Advisers had removed this concept, although he pointed out that there were still a few references to it that would need to be tidied up. Clause 18 described classified information as information falling into one of the categories, which would be classified by an official in order to protect it. Clause 18(b) should read "may" and not "must" as this was a discretionary power. Only an official examining the contents, the circumstances and the interests could be in a position to decide whether to protect the information or not.

Clause 19 dealt with the method of classifying information, which was to be done at a high level. The regulations would add more detail. A criticism had been made in relation to clause 19(2), which permitted classifying authorities to classify "en bloc" in file series or categories. This was useful from an administrative efficiency point of view. However, the question was whether the authority was applying its mind to every classification. He believed that this could be problematic and there could be constitutional implications. The safeguards being built in would not apply to individual items in the category. He suggested that the Committee might want to consider removing clause 19(2). He had asked the security representatives on the drafting team whether its removal would be a problem, but had received no response on what the practical implications would be if large departments were not to be allowed to classify en bloc. At the moment this power did not exist, and as far as he was aware there had not been any negative implications.

Clause 19(4) required that classification authorities needed to mark the document with de-classification instructions. The idea was to cut down on the amount of classified information. In the past there had been secrecy by default so that there was a vast amount of government information that was being protected for no good reason, which was consuming resources, and had constitutional implications.

Clause 20 dealt with classification levels. It was noted that the "restricted" level no longer was used. The SAPS had indicted that they were unhappy with this, as it resulted in the default classification. Even the old MISS document itself was stamped "restricted", although it should have been available for everyone. The remaining three levels would require each authority to take a reasoned and rationed approach.

Adv Varney noted that the media and other groups such as the Freedom of Expression Institute (FXI) had criticised these levels. Confidential was the lowest level. The threshold currently read "may be harmful", and this had been criticised by the Freedom of Expression Institute (FXI) and other groups. This was the level most often used in USA. It was quite a low threshold. Another threshold could be "is likely to cause harm" and the highest would be "would cause harm". In New Zealand there could be no classification unless harm would be caused. He was not recommending this approach because showing actual harm was difficult. The middle ground would be "likely to cause harm" which meant that it was a real threat, and he recommended that this should be adopted.

A document could not be lawfully classified unless the criteria set out in clause 20 were met. The threshold for all the levels should be consistent all the way through. However, there was an exception when it came to physical life or physical harm, and this was at the secret and top secret levels, as set out in clauses 20(2)(c) and 20(3)(c). He suggested that in these instances the threshold should remain at “may endanger the life” as the State should not be taking chances.

Clause 21 noted that only heads of Organs of State, and those delegated by them, may classify State information, and this should be at a senior level. This was an endeavour to cut down on classification. Whenever classifications were made, there should be written reasons, as there might later be a need to interrogate the reasons for the classification. Clause 20(6) would have to be removed if the ability to classify certain categories was to be cut out. Clause 20(7) was incorrectly placed here, as it was a repeat of clause 19(2) and that too would have to come out.

The principles of classification were important, as every classification must be consistent with them, and these were contained in Clause 22. Adv Varney suggested that subclause (a) should be deleted, as it was dealt with elsewhere. The national interest was dealt with under sensitive information. This had been amended when SAPS pointed out that individual members and organs of state  - such as operatives and sources - might need to be protected. Clause 20(b) set out what classification could not be used for, including that it could not be used to conceal illegalities, incompetence, to deflect criticism or scrutiny or protect against embarrassment. There was in fact an offence for classifying information unlawfully for an ulterior purpose. This forced those who were classifying to apply their minds properly, and to classify sparingly. Subclause (d) set out that there should be a clear and justifiable need, and if there was a challenge to a particular classification the organ of State must state what element of the national interest needed to be protected.

Clause 23 was important because there were loopholes in the old legislation as to what would happen if people found themselves in possession of classified information. It now specified that if an individual received classified information he or she was obliged to return that document to a responsible authority. Failure to do so was an offence.

Part B dealt with de-classification, which had not been dealt with in earlier laws. The authority to de-classify was similar to the authority to classify. It was set out in clause 24. Clause 24(6) had  the possibility of de-classification en bloc. If the "en bloc" provisions were to be removed, this did not necessarily mean that this provision should also be removed, as it did not have the same implications. The Department of Defence must have several blocks of information dating back to old projects and missions that were no longer sensitive, and it would be useful to allow this Department to deal with them en bloc.

Adv Varney said that he had some technical recommendations in relation to clause 26. He proposed that all information that was not to be automatically declassified through a date or event should be dealt with in terms of new wording. Anything classified before 10 May 1994 should be declassified, unless it was to be re-classified in terms of Clause 28 of the Bill. All classified information more than 20 years old should be automatically declassified, unless it fell under Clause 27(1). A further category of information that could remain classified for 30 years was dealt with in Clause 26(c).

Clause 27(1) and (2) set out the maximum protection periods, including the 20 and 30 years set out in the previous clauses. Adv Varney suggested some adjustments to clause 27(1). Instead of using the word “necessary” to safeguarding of national security, he suggested that “crucial” be used. Information needing to be protected for more than 30 years was limited in scope to information that a head of an Organ of State would certify to the satisfaction of the Minister would demonstrably threaten a life if released. A prime example would be details of an undercover agent, whose life would be in danger if information was known.

The criteria for continued classification were set out in Chapter 7. It was suggested that the criteria for original classification could be used here as well. However, the drafting team thought that a stricter threshold for re-classification was needed. An original classification would require a clear and justifiable need. Under Clause 28 there would need to be consideration of whether de-classification was "likely to cause significant and demonstrable harm" and this was a slightly higher requirement. Adv Varney suggested that there should be some changes to Clause 28(1), by referring to "the interests sought to be protected by the classification" which would cover all the categories. Clause 28(2) set out a non-exhaustive list of circumstances that would meet the significant and demonstrable harm test, and there were a few other small adjustments necessary for the sake of consistency. He suggested that a new subclause (3) be added to specify that there must be written reasons also for re-classifications.

Clause 29 dealt with regular reviews. There was some debate amongst the security representatives as to how often organs of state should be required to review their classified information, and that was eventually set at once every ten years.

Clause 30 dealt with requests to review the classified status, as distinct from a request for information, which would be done under the Promotion of Access to Information Act. (PAIA). There must be demonstration of legitimate public interest or a research interest. The procedures were set out in subclauses (3) and (4).

Clause 32, dealing with appeal procedures, had been criticised. Currently the appeal went from the head of the Organ of State to the Minister. Various organisations complained that there was no independence in the process. Originally the drafters had thought to set up an inter-departmental panel to hear the appeals, to exclude the Minister of the Department that had refused the review. However, the Ministry considered that setting up another bureaucratic structure was not a good idea. Adv Varney said that he foresaw some problems with the current formulation. Legally speaking, there might be a lack of independence. It might be possible to make it clear that the provisions of Chapter 7 would not prevent an interested party from approaching a Court. An alternative might be to employ the office of the Public Protector as the appeal body dealing with status reviews. FXI and others had suggested an independent ombudsman.

Chapter 8 was self explanatory. It said simply that Organs of State transferring records to National Archives must declassify them before doing so.

Chapter 9 dealt with the release of de-classified information to the public. It could be released in terms of departmental policies and procedures. If that failed, then the public could try to enforce rights through PAIA or any other law. The principle was recognised that a Court could order the release of such information. Although this Bill was not dealing with the actual release, it was making provision that the information could be released from the national database. Chapter 10 upheld the principles that information must be de-classified before release, and this Chapter contained the references to PAIA. The only controversy around the national declassification database was that information that may be refused in terms of PAIA should not be placed in this database. The Committee on intelligence Review thought that this was incongruous. Adv Varney cautioned against dropping this provision. Some information may be refused under PAIA - such as personal records and confidential information - but it would be unfortunate if something refused under PAIA should automatically be put back into the classification system.

Chapter 10 dealt with implementation and monitoring. It had been criticised as making no provision for independent monitoring. The National Intelligence Agency (NIA) was responsible for monitoring and onsite support and advice. Specific agency support was provided for, but the position of SAPS and South African National Defence Force (SANDF) needed to be further discussed. Originally, because of objections raised by this sector, SANDF and SAPS were excused from the oversight to be exercised by sister Organs of State under clause 37 and they had also been excused from the reach of the NIA. However, the State Law Advisers had removed this “excusal” clause.

Objections had been received that the NIA was not in a position to provide independent oversight, because it was an Organ of State advancing intelligence interests. It was suggested that a completely independent body should be created, in line with the independent oversight centre that had been included in earlier versions of the Bill, but which had been dropped because the Ministry was uncomfortable with creating more bureaucracy. It was also submitted that there was no provision for monitoring the Agency itself. Various organisations had made recommendations for independent bodies, an ombudsman or the SA Human Rights Commission to undertake the monitoring

Clause 38 set out the procedure for dispute resolution. It was suggested that the Minister of Justice, and not the Minister of Intelligence Services, should be the appropriate body.

Chapter 11 set out the offences and penalties. This was controversial because it introduced some of the stiffest penalties, including jail terms of up to 25 years. The offences and penalties clause was basically in three parts. It was intended to deter and punish acts of espionage and hostile activities against the state; then to punish unauthorised disclosure or destruction of protected information; then to punish acts of non compliance. For all offences carrying penalties of imprisonment of 5 years or more the written authority of the National Director of Public Prosecutions (NDPP) was required. Clause 50 provided for activities outside South Africa to be included.

Espionage was the communicating, delivering or making available information with the intention to give advantage to another State. A hostile activity offence was similar in nature, but had the intention to prejudice the State, rather than intention to furnish the information to another State. Both offences were divided into three parts, which dealt with the types of state information unlawfully communicated or disclosed. Where the disclosure would amount to disclosure of top secret-type information, the penalty was a maximum of 25 years. Imprisonment. Where the disclosure involved secret-type information there was a maximum period of imprisonment of 15 years. Where the disclosure involved confidential-type information the penalty would be a maximum of 5 years. This formulation had been criticised. The reason for it was however that there could be circumstances where the information was unlawfully disclosed before it could be classified. This formulation was intended to close that loophole. It was no longer possible simply to produce the document and show that it was stamped. The prosecutor would have to prove the impact of the disclosure, but given that the penalties were so steep it was considered that this would be a proper burden. Further criticisms were levied because the clause referred to disclosure that "may" (not "is likely to") cause harm. It was argued that the threshold was too low. Adv Varney suggested that if there was to be a change, it should be to the middle ground of "is likely to cause" .

Adv Varney would not go through the other offences, but they were contained in the explanatory notes.

Adv Varney moved to clause 43, which referred to intelligence agents of other countries, who were required to register with the NIA as intelligence agents. He thought that this was likely to be ignored. However, if an intelligence agent was caught doing something in South Africa, he could be charged with the offence of failing to register.

Clause 47 dealt with peddling of false information, which was punishable by five years imprisonment.

Clause 49 related to improper classification, spoken of earlier.

The media and FXI had claimed that some of the offences would have the effect of criminalising investigative journalism. There was no intention to ensnare investigative journalists, and the drafters had considered the implications of the type of investigations that journalists were likely to undertake. Any document concealing illegality or corruption could not be classified, so it was felt that the fact of improper classification should secure an acquittal. However, this was considered not to go far enough. The drafters had then conceded that perhaps the offences set out in clauses 40, 45 and 46 might end up ensnaring investigative journalists who were exposing illegality or corruption. Therefore a new formulation had been created, as set out in paragraph 111.4 of the explanatory notes. The journalist would now have to onus of showing that his actions were genuine, and truly in the public interest. There was still a fair amount that the journalist would have to prove to benefit from this formulation. This was important in relation to the lesser offences that did not require proof of intention to prejudice the State.

Adv Varney said that there was some precedent in the United Kingdom for public interest exemptions. He would provide details to the researcher.  It might be worth considering whether an explicit public interest exemption should be formulated. This would not apply to the other offences such as espionage or interception of information.

Adv Varney noted that in the Independent Newspapers case it was argued that anything before the Court was subject to the principle of open justice, without exception. The State argued that this was not an absolute concept. The State’s view was accepted by the majority judgment. Chapter 12 set out the process of information put before a Court. The information would retain its protection until the Court ruled that it should be disclosed in the interests of justice. The procedure by which the determination could be made was set out. He noted that the Court had, in the case referred to, refused the Newspapers’ interlocutory application to have sight of the documents, as this would defeat the purpose of the classification. A Court would have to protect the information, not disclose it, but could describe in general terms the characteristics of the information. Adv Varney had made some technical suggestions for clarity and these would be passed to the researcher.

Chapter 13 set out the general provisions, which were self-explanatory. Certain technical adjustments were suggested, and he would pass these on to the Committee researcher. He explained that these would ensure that apartheid order information should not be held up during the eighteen-month period while the Departments were busy with their policies and procedures, so that the business of some declassification could proceed immediately.

Ms D Smuts (DA) said that she had some difficulty with the applicability of the Bill. There were hundreds of organs of State, and she did not agree that the principles set out in this Act should necessarily apply to many of them. She suggested that perhaps this Bill should apply only to Executive organs of State, and she was not sure whether this should extend across all levels.

Ms Smuts also expressed concerns about the commercial classification. If the Minister with control over the State Owned Enterprises were to start classifying documents, for instance in relation to the Pebble Bed Modular Reactor, she was not sure if this would be necessary or desirable. She indicated that there had been difficulties with classified information around the third cellular licence, which was linked with arms transactions. There would always be the potential for corruption and she believed that too wide a power to classify would fuel this risk. The definition of “the national interest” was precisely where the problems lay.

Adv Varney responded that the drafters had been advised that it would not be possible to come up with a finite list as to which organs of State and what kinds of information should be protected. There were indeed many organs of State, such as State farms, which should not classify any information. He agreed that there would always be matters that could be hidden but the Bill sought to deter this by building in checks and balances. He was not sure how to limit this to relevant organs of State. In terms of clause 3 the Minister had powers to exempt or excuse certain organs of State and perhaps the office of the Minister should carry out investigations as to which organs should be exempted, and gazette them. Adv Varney did not think it proper to confirm the reach of the law only to security interests. However, when they chose to do so the reasons must be reasoned, justifiable and justiceable.

Dr Cwele did not agree with Ms Smuts, pointing out that part of the problem with the MISS had been the exclusion of certain organs. He thought that some of the State research institutions might have sensitive information and this must be dealt with.

Dr Cwele questioned the process. He pointed out that there were other Bills still to come, and some issues might need further consideration. He would like to have the Minister and presenters outline clearly all changes proposed. He also suggested that the State Law Advisers must produce a document showing the changes and the reasons for them. Any policy matters should be cleared by the Minister. He also suggested that it would be useful to have a summary giving international comparisons, including other African countries.
Adv Varney said that this would be made available to the Committee.

Dr Cwele questioned whether the financial implications of the Bill could really be “none” as stated. Although he did not expect detail, he would like to hear more about the broader categories of implications. He did think that there would be implications.

Adv Varney said that he was not involved in compiling the memorandum on the objects and he too had been surprised to see this as there would be substantial costs. Even the NIA would have to set up a body to take on the programme.

Ms Mgabadeli asked who had crafted the Bill and what was the procedure, and the general motivation for the Bill

Adv Varney said that there was not a great deal he could add to what had been said earlier. The drafting team included representatives from the Departments of Justice, the SANDF and SAPS, plus himself and a professor from the Wits Law School. Everything drafted by the team had been sent to the Department.

Ms Mgabadeli referred to the State Law Adviser’s comments on clause 5, asking whether there should be referral to the National House of Traditional Leaders.

Adv Varney said that this was a question to be taken up with the State Law Adviser.

Ms Mgabadeli asked whether there should be further consultations with the Department of Defence and the SAPS.

Adv Varney responded that although SANDF and SAPS had been represented on the drafting team, he thought that they must be asked for their comments on this version, which did contain some changes. He was sure that they would have something to say about the removal of the blanket exemption clause (3), if not also other clauses.

Other Committee Business
The Chairperson said that the meeting scheduled for Friday would not be held because of a sitting of Parliament. Next week the Department would be presenting two new Bills. The approval of the Minutes would stand over to the next meeting.

The meeting was adjourned.


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