Protection of State Information Bill: Minister of State Security response to proposed amendments

Meeting report

Protection of State Information Bill: Minister of State Security response to proposed amendments by the Committee
The Chairperson said that this session would be dedicated to getting responses from the Minister and Department of State Security (DSS or the Department) on issues that the Members, through their parties, had raised in the Committee discussions, as well as issues raised in public hearings.

Mr Siyabonga Cwele, Minister of State Security, thanked the Committee for the opportunity to respond to the amendments proposed by the Committee. He also thanked Members and for all their efforts to ensure that a constitutionally sound bill would result from the process. The Department remained ready to implement the laws, once they had been passed, and was hoping to learn from the errors of the past, where some laws may have been unworkable.

The DSS agreed with the thrust of most of the amendments, but did have some concerns. It had tried to consult other departments who were affected by the Bill, and their representatives were present to answer any technical questions.

In relation to the definition of espionage, which was moved to the section of the Bill that dealt with the offence itself, the DSS suggested that the heading of clause 36 should read “Espionage related offences”. He said that DSS thought there were two options. The first would be to leave out a specific definition of espionage, so that the ordinary or normal understanding of that word would apply. The second was to include a definition, and if that option was preferred, then it must refer specifically to offences described in clause 36, and use the wording “includes”, as there was no other legislation that defined it.

The Minister agreed with the Committee that because of perceived problems at local levels of government, municipalities could be excluded from the classification systems. The Committee had proposed that the reference to head of the organ of state, specifically as it related to municipalities, should be removed. However, this alone would not achieve quite what the Committee wanted. Municipalities were also referred to in other clauses, and he noted that it was important to remember that municipalities still had to deal with valuable information. The matter was covered in clause 3(1)(b). He gave the example of municipal valuations on houses, and licensing information, which would need to be protected, so further thought would have to be given to how to retain this duty, whilst excluding local government from the ability to classify information.

The Minister noted that the DSS was concerned at the proposals of the Committee to delete wording from clause 1(4), since it believed that this would render the classification, reclassification and declassification regime ineffective. It would lead to legislative confusion and divergent legal opinions. Clause 5(j) informed the interpretation and application of the Bill, and did not apply to PAIA. He pointed out that “variance clauses” (explaining what should happen in the case of possible conflict) also existed in several other pieces of legislation (see attached presentation for details). He suggested that a useful example might be wording similar to that used in the Labour Relations Act (LRA), which had been tested and had passed constitutional muster in similar circumstances, when it was considered alongside the Promotion of Administrative Justice Act, another constitutionally-mandated Act. He proposed that the new wording for clause 1(4) should read:
”If any conflict, relating to the matters dealt with in this Act, arises between this Act and the provisions of any other law, save the Constitution, or any Act expressly amending this Act, the provision of this Act will prevail”.

The Committee had recommended that, in the case of departments other than those charged with state security, who wished to opt in to the classification system, the authority to do so should lie not with the Minister, but with Parliament. Mr Cwele said that this would probably not pass constitutional muster. The 30-day period and deeming provisions as suggested by the Committee had the effect of giving Parliament a role, on the one hand, but taking it away on the other. He suggested that preferable wording could be, for clause 3(2): “Parliament may, within 30 days of receipt from the Minister of an application contemplated in subsection (1)(b), approve such application”.

Mr Cwele then responded to the Committee’s proposals around the conditions for classification (now numbered as clause 10). The word “must”, in clause 10(3) made it mandatory to consider various factors. A closed list of relevant factors would preclude classification of issues of national security that fell under all three levels of classification. The Minister proposed that the words “amongst others” should be added, so that other considerations could be taken into account. He pointed out that the Bill had to make it clear whether all, or only some, of the conditions would have to be met. The word “must” generally did not imply that every condition had to be met simultaneously.

In relation to the proposals in clause 14(6), as to what level of operatives could classify, both the South African Police Service (SAPS) and South African National Defence Force (SANDF) had raised some practical concerns. Both had noted that in the policing and intelligence environments, the information that had to be protected was often generated at quite a low level, not limited to crime intelligence. All members of the SAPS should therefore be in a position to protect sensitive information. SANDF had some reservations around referencing ordinary members, as it was in fact ordinary members deployed in hostile territories and conflict areas who had to classify their reports. He explained that the SAPS and SANDF concerns had to be addressed. The operatives could include commissioned and non-commissioned members. He pointed out that there was reduced room for abuse, since classification was already reduced to a few departments who dealt with national security. Unless this clause reverted to the wording of the Bill as referred to the NCOP Committee, the workability of the Bill would be problematic. He pointed out that there would have to be regulations to spell out how matters were dealt with within the departments, and those would have to be approved by Parliament, so that was another check.

In relation to the offences, the Committee had recommended that the words “ought reasonably to have known” should be removed, so that imputed knowledge would not be sufficient, and actual knowledge would be required. He pointed out that this would place a greater burden on the state in proving its case. In most cases, only the accused could explain his state of mind. The amendment, as proposed, would require actual proof that the person charged would know the consequences of his or her actions, and it was impossible to prove this subjective knowledge. Essentially, the removal of these words would shift the burden of proof from “beyond reasonable doubt” to “beyond any doubt”. The Minister indicated that everywhere in the world, these cases were difficult to prosecute successfully. He noted also that similar wording appeared in other pieces of legislation, which were cited, and judgments on this wording had endorsed the concept.

The Minister also commented that it was not correct to say that there was any reversal of onus, as the state would still have to lead evidence and prove its case.

The Minister then moved on to the Committee’s proposals in relation to clause 43(b), and suggested that the clause should contain the phrase “is authorized, in terms of this Act”, which would then cover authority obtained in terms of regulations to the Act.

In relation to clause 43, the Department would also support the specific five-year penalty provision.

In relation to clause 54(l), the Minister set out suggested wording, and said it was not necessary to specify who may apply for authority, as this was a matter linked to another offence in the Bill.

Discussion
Mr S Mazosiwe (ANC, Eastern Cape) welcomed the input from the Minister and Department. Members needed more time to reflect on the proposals. However, he wanted to ask some questions of clarity.

In relation to clause 1(4), Mr Mazosiwe noted the Minister’s comment that it must be very clear as to which law would prevail, and asked for further clarity on the point. He also noted the Minister’s comment that the Department had engaged with other departments on the processes.

Mr T Chaane (ANC, North West) also had some concerns around the proposals for clause 1(4). The reason why the Committee had suggested the deletion of the reference to the Promotion of Access to Information Act (PAIA) was to reconcile subclauses (2) and (3), which said that any interpretation of the Bill must give effect to the objects as captured in Chapter 2, and that in the case of any conflict with any information legislation, the Court should prefer an interpretation that reasonably avoided conflict. He wondered if these points were not sufficient to address the Department’s concern. He pointed out that the final interpretation would lie with the courts, and they would be guided by the Constitution. He was not fully persuaded of the argument of the DSS on this point.

Minister Cwele responded that this Bill was the only piece of legislation dealing directly with classified information. He did not believe it was in conflict with PAIA, and pointed out that PAIA itself did not allow disclosure of classified information. There had been some suggestions (although not from this Committee) that PAIA needed to be amended. He pointed out that if PAIA was to be amended, so that it meant something different from its current meaning, classification must still be covered under this Bill. As PAIA stood now, there was no conflict. The DSS wanted to ensure also that there would not be any conflict in the future, no matter what form PAIA may take, so that there was consistent application of legislation. He reiterated the DSS view that there was nothing unconstitutional about the wording of the original clause 1(4), and he did not agree with claims that it had somehow “demoted” PAIA. The ANC government had passed PAIA, and had no intention of trying to “trump” it.  DSS had looked again at other legislation with similar effect, and that was why it was making the suggestion to amend this clause, as set out earlier.

Mr Monwabisi Nguqu, State Law Advisor, Office of the Chief State Law Advisor, read out for the Committee the applicable section 210 of the Labour Relations Act. He noted that reference should also be made to the Constitutional Court case of Chilwas v Transnet, which had hinged on jurisdiction matters. The Court, in this case, had noted that the Labour Relations Act was passed five years prior to Promotion of Administrative Justice Act, and said that if the legislature had then wanted to erase the provisions of the Labour Relations Act, it would have done so, but had not. He again reminded the Committee that PAJA was another of the constitutionally-mandated acts.

The intention of clause 1(4) was to protect sensitive information. PAIA gave effect to the Constitutional right of access to information, but Chapter 4 of PAIA contained exclusions on the type of information that could not be released. Section 36 of the Constitution also provided for limitation of rights. He reiterated that if clause 1(4) was reformulated in the manner now suggested, the objections would be met.

The Minister stressed that the only thing that could trump the Bill would be the Constitution itself. He also reiterated that section 210 of the Labour Relations Act had already been tested. Whilst he did not think there was any fundamental conflict between this Bill and PAIA at the moment, this further clarification would make it absolutely clear that the Bill would prevail if there was any conflict that related to classified information.

Mr Chaane urged Members to consider subclauses (2) and (3), which set the standard that the Bill must be interpreted in a way that gave effect to all the principles set out in the objects clause. These referred, amongst others, to promoting transparency. He said that the Committee would give consideration to the new wording proposed by the Minister, but would have to consider how this would fit in with subclauses (2) and (3).

Minister Cwele stressed that the two principles that had guided the DSS throughout were to make the legislation workable, whilst also ensuring that it was constitutionally sound. These proposals were directed to those aims, and the Department was in no way try to delay or frustrate the finalisation. He agreed that there could be further engagement on clause 1(4). He reminded the Committee that the State Law Advisors considered the constitutionality of all laws.

Mr Chaane welcomed the presentation from the Department, and said that it was clear there was agreement on several issues, and suggestions made by the DSS could perhaps be accommodated. He agreed, in relation to the municipalities, that the intention was not to remove them from the definition of an organ of state, but to remove their ability to classify information. Their responsibility to protect valuable information indeed remained. He agreed that the definition of organ of state was in the Constitution, but that the point that needed to be clarified was the ability to classify information. Subclause (c) now contained a proposal to use wording “except municipalities and municipal entities”, but mayors were still mentioned as the heads of municipalities. He thought (b) and (c) might be contradictory, and agreed that it would be necessary to capture the fact that reference to municipalities applied only to protection of valuable information.

The Minister said that clause 3(4) contained the word “disclosure”, which suggested classification, and he would prefer that another word be found. Valuable information was open information, although it did need protection.

Mr D Bloem (COPE, Free State) said that the Committee had dealt with the matter thoroughly. His party would propose that the Committee should abide by the amendments made. He disagreed with what the Minister had presented.

The Chairperson noted that this exercise was part of the ongoing engagement, and the Committee had previously taken a decision that the best way to move would be for the parties to continue convincing each other what would be in the best interest of the country. He urged Mr Bloem to keep an open mind,

The Minister responded that the intention behind his presentation was not to attack the work done by the Committee. He had started by commending the Committee on its work. He would like to persuade Mr Bloem why the Department believed that it was reasonable to suggest different wording, and said he was open to discussing the matter further.

Mr R Lees (DA, KwaZulu Natal) also thanked the Minister for his input and agreed with his colleagues that further deliberations were necessary. There were some new elements that had been introduced. His initial reaction to the suggestions on clause 1(4) was that he disagreed, but he thought that Members needed to consult further with their legal teams.

The Chairperson asked that the information provided by the Office of the Chief State Law Advisor should be furnished to the Committee in writing.

Mr D Worth (DA, Free State) said that he agreed that more time was needed to ascertain exactly what these amendments implied.

Mr A Matila (ANC, Gauteng) agreed that Members now had to isolate areas on which further engagement was needed, and he suggested that the Committee should concentrate only on those, so that it did not address the whole Bill again.

Mr Mazosiwe noted that the Committee had applied for an extension until end November, so there were effectively two weeks to finalise the Bill.

Mr Bloem noted that all areas on which the Committee had failed to reach agreement were flagged in a 41-page document and he did not think the process would be finished in the next two weeks. The DA, COPE and ID amendments had not even been considered in depth.

Mr Mazosiwe countered that Members had been very close to meting each other, and he had a sense that the Bill could be finalised in that time. He urged that Members continue to work together in a manner that would strengthen democracy.

The Chairperson noted that the document referred to by Mr Bloem had not been formally tabled. The DSS had responded to only a few issues, and it was taken that the rest of the proposals had been responded to positively. There was one issue that COPE had raised consistently throughout, whether to have a public interest defence. It remained the right of any party to express its views. He reminded Members that right at the start of this process, it was hoped that it would not be necessary to go to a vote, as hopefully parties could reach agreement.

The Chairperson said that of course the Bill would still have to return to the National Assembly (NA), for consideration of the NCOP amendments. The NA’s last sitting was on 22 November. He suggested that the Committee could meet during the process of Taking Parliament to the People, at De Aar.

Members deliberated whether this would be desirable, but COPE and the DA indicated that they would prefer such an important Bill to be deliberated on in a venue where the parties had access to all documents, and to legal advice. The IFP did not want to discuss this during the current meeting. It was then resolved that no meeting would be held in De Aar. Instead, a meeting would be scheduled around 12 November, when Members returned.

The meeting was adjourned.