Protection of State Information Bill: deliberations on Department State Security responses

Meeting report

Protection of State Information Bill: Deliberations: Committee’s response to Department of State Security briefing
Mr S Mazosiwe (ANC, Eastern Cape) said he would go through the Department of State Security responses, delivered on 31 October.

Definitions
He noted that the ANC had agreed to revise the definition of “espionage” again, and read out the new definition, which used the term “includes the acts constituting the offences referred to in section 36”.

Mr A Lees (DA, Kwazulu Natal) said that the DA had no problem with that.

Mr Mazosiwe then referred to the definitions of “organ of state” and said this had been debated many times, and the issue raised by the Department of State Security (DSS) was that there was a definition of this in the Constitution. The Committee had originally proposed the deletion of this provision, linked to the concept that municipalities should not have the power to classify. However, the ANC, on reconsideration, now felt that the exclusion of municipalities was sufficiently addressed by the proposals made in clause 3(b). The ANC therefore proposed that the original definition of “organ of state” be retained, as it appeared in the Constitution.

Mr Lees thought that there was no reason why a definition in one piece of legislation should not be re-stated, with exclusion of certain parts, in another piece of legislation. However, the DA did not think that there was a problem with what the ANC was proposing.

Mr D Bloem (COPE, Free State) commented that in the last meeting, he had indicated that COPE disagreed with all the amendments proposed by the DSS. He retained and wished to reiterate that view, so it was not necessary for him to object to each of the definitions separately.

Mr Mazosiwe referred to another aspect of the definition of “head of the organ of state” under 3(a). The ANC noted the insertion of a reference to the Intelligence Services Oversight Act, section 1.

Clause 1
Mr Mazosiwe said there had also been substantial discussion around clause 1(4). The Minister had made a proposal that used wording similar to that in the Labour Relations Act.

He reminded the Committee that at one stage, clause 1(4) had been deleted altogether. However, the ANC now wished to propose another amendment, so that clause 1(4) would now read: “In respect of classified state information, this Act prevails if there is a conflict between a provision of this Act, and a provision of another Act, save the Constitution, or any act expressly amending this Act”. This was slightly different from what the Minister of State Security (the Minister) had proposed.

Mr Lees said that the DA had agreed to the deletion of clause 1(4), and would not support the new wording.

Clause 3
Mr Mazosiwe noted that the DSS had proposed that the deeming provision under clause 3(2) be deleted, because it would limit the power of Parliament. The ANC agreed with the Minister.

Mr Lees noted that he was not sure what the DSS had meant. He asked if the DSS had suggested the scrapping of 3(2)(a) and (b), replacing them with a new clause 3(2).

Mr Mazosiwe said that the deeming provision appeared after the words “apply to it”. It was that portion that was being referred to.

The Acting Chairperson noted that a full stop would now appear after “approve such application”.

Mr Lees said that he was not sure how this would link in.

Mr Mazosiwe understood that Mr Lees had difficulty because he was trying to compare all the versions of the Bill, but, wherever it appeared, the ANC was essentially suggesting that the deeming provision must fall away.

The Acting Chairperson pointed out to him where this wording appeared.

Mr Lees apologised for the confusion, and said he had found the right document. The question of the deeming provision was probably problematic and he agreed that the DSS suggestion was acceptable.

Mr Mazosiwe indicated that clause 3(4) (original version, now renumbered as clause 3(3)), had included the word “disclosure”. The word “disclosure” would be deleted, leaving the wording as “unlawful alteration, destruction, or loss.

The Acting Chairperson noted that the DSS had pointed out that “disclosure” was not applicable to valuable information. This was in line with the principles agreed upon.

Mr Lees reminded the Members that the DA believed that valuable information should not be included in the Bill at all, and any amendment that tried to take it into account was therefore not relevant. However, if it was acceptable that valuable information would stay in the Bill, then the DA had no objection to that amendment.

Clause 10(3)
Mr Mazosiwe noted that the DSS had suggested that the words “among others” should be inserted after “must include” to allow for greater flexibility in the application of this clause. It was argued that “must” was too restrictive and limiting.

The ANC felt that clause 10(3)(a) to (f) should be retained as they were, and anything that needed to be reworked could be done later. It did not agree with the inclusion of “among others”.

The DA agreed with these suggestions.

Clause 14(6)
Mr Mazosiwe said there had been a concern amongst Members that if everybody in the police, defence and others could be allowed to process classified information, this would be untenable. It was desirable that only those at a high level should be allowed to classify. However, the DSS had argued that this would make the day-to-day running of intelligence and security departments very difficult. The ANC took note of these concerns. The original clause had referred to those who “by the nature of their work” would have to deal with these matters. The ANC understood the concerns of the DSS but thought that this would not create any conflict. If there was difficulty in implementing that provision, it could be dealt with at some other time. It would prefer not to revert to the original proposals, but to use the wording that the ANC had proposed earlier.

Mr Bloem said that the Public Protector had commented on this clause, saying that this would make it very difficult for her to execute her work. COSATU had said that the country was moving to a police state. Those objections, made during the public hearings, should be taken into consideration.

The Acting Chairperson thought that Mr Bloem might be confused about the clauses.

Mr Lees pointed out that there was some confusion about the numbering. The Bill had been substantially re-worked, but the DSS had referred to the clause as clause 14. The DA, however, had a problem with anyone being able to classify, and felt that only the head of the organ of state could classify, or delegate this task to a staff member at a sufficiently senior level. There was no guarantee that these operatives in the field would be persons of a sufficiently senior level. It therefore did not agree with the proposal by the Minister to revert to the original wording.

Clause 43
Mr Mazosiwe said that the ANC wanted to make a couple of proposals. Firstly, in relation to the sentencing, he commented that clause 43 should include the words “for a period not exceeding five years”, as proposed by the DSS.

Mr T Mofokeng (ANC, Free State) indicated that the clause had, in subclause (b) read “is authorised in terms of any law”. The ANC wanted to propose that it should instead read “is authorised in terms of this Act”. The reference to section 10 would be deleted from subclause (c), so that it only referred to criminal activity “listed in section 47 of this Act”.

Mr Lees said that this was a bold move forward, but there were some limitations contained in clause 47 which made it still not sufficient. The DA would not accept this amendment. The DA would be proposing new additions to clause 47, to make it into a significant exemption clause, in place of a fully-fledged public interest defence clause. Should this not be acceptable, then the DA reserved its right to revert to the public interest defence proposals.

Furthermore, the DA wanted to retain the wording “is authorised by any law” and saw no reason to exclude clause 10 from clause 43(c). Overall, there were concerns with the content of clause 47.

Clause 54(l)
Mr Mazosiwe said that the ANC now had a new proposal. It wanted to propose the deletion of the former clause 54(l). This would be substituted with: ”the procedure to be followed, and the manner in which employees, officials staff members or any other person who in any manner assists or who has in the past assisted in carrying out or conducted the business of an organ of state may disclose breaches of the law or unlawful acts, or omissions, incompetence, inefficiency or administrative error”

The Acting Chairperson noted that this was essentially a technical change of the wording, that did not alter the factual position.

Mr Lees asked if this was a clause on which the Minister had commented.

Mr Mazosiwe said it had been briefly mentioned at the end of the submission. The original clause 43 referred to clause 54(l), but now the ANC was changing (l). It would give protection to those who formerly had worked with information regarded as classified.

Mr Bloem asked why there was a necessity to change the language.

The Acting Chairperson said that he understood it was to strengthen the language.

Mr Lees said that the DA had no strong feelings about it.

Clauses 36, 37 ad 38
Mr Mazosiwe reminded the Committee that there had been a long discussion as to whether the phrase “ought reasonably to have known” should be dropped, except in relation to espionage-related matters, where the Committee had always thought it should be retained. The DSS had submitted that the exclusion of this phrase would make it very difficult for the National Prosecuting Authority (NPA) to secure convictions, and had suggested that the phrase should be retained. The ANC did not agree with the DSS, and wanted this phrase only to appear in espionage-related matters.

Mr Lees asked where the espionage exceptions would be found.

The Acting Chairperson said that each of the offences would be affected by this proposal, except for the offence of espionage. The ANC did not agree with the DSS that it should be retained for all offences.

Mr Lees said that this wording would then remain for clause 36. The DA thought there was a difficulty in that this clause could be used by an enterprising prosecutor to prosecute someone for disclosing classified information that may be protected under clause 43, but not under the espionage clause. The clause did not refer to an operative of the State Security Agency but to an individual. It was not just a question of “ought reasonably to have known”, as the Committee had felt that before being prosecuted, a person must have actually known.

The Acting Chairperson said he would return to this point. However, he asked for the views on clauses 37 and 38.

Mr Lees said that the DA agreed with the ANC on the removal of that phrase.

The Acting Chairperson said that this concluded the issues that the DSS had raised in the meeting of 31 October. He asked if any other party wanted to raise any other matter, and confirmed that they did not.

He noted that the Committee Secretary had prepared a document setting out the areas agreed upon, and those where there was still disagreement. He suggested that the Committee should proceed to discuss the issues that had been “parked” where no agreement had been reached. If agreement could not, in this round of discussions, be reached, the parties would have to vote.

Mr Bloem noted that whilst this document set out matters up to 16 October, it did not mention the issues now raised by Mr Mazosiwe, nor did it set out the proposals that the Minister had raised. He proposed that, for the sake of quicker discussion and processing of all clauses that this document should be re-drafted to include every amendment that had been proposed.

Ms N Ntwanambi (ANC, Western Cape) said that there was nothing new in this document. In fact, this was merely a summary of what had been said in the past.

Mr Lees agreed with Mr Bloem that there were some new amendments that had now been proposed, from the ANC, at this meeting. He too wanted to work from a fully comprehensive document.

Mr Bloem said that he was essentially requesting that all the new proposals must be included in this document.

Ms Ntwanambi said that the DSS had made certain proposals. The ANC had considered those, as agreed in that meeting. She thought that it would not make sense to go back again and set these out. What the ANC had tabled today was the response to the proposals tabled by the DSS.

Mr D Worth (DA, Free State) agreed that there was not a great deal that was new, but Members were battling to move from one document to another. Every change should be incorporated into a consolidated new document.

The Acting Chairperson noted these difficulties. He said that the DSS had in fact not brought any new issues, but had reflected on this Committee’s amendments. The Members today had reflected on the DSS comments and had agreed to some, but disagreed on others. There were also very few issues on which the parties present today could not agree. He took the point that although all parties’ proposals made prior to 31 October were included in the document dated 16 October, those proposed today (some of which had been agreed upon by all) were not reflected, but this could easily be done. He added that some other consequential amendments would be necessary – for instance “unlawful disclosure” would have to be removed in respect of every reference to “valuable information”.

He also noted that there was a new proposal, indicated very briefly by Mr Mazosiwe, that the heading of a clause be changed, to “Espionage-related offences”.  Mr Lees had said that he had some proposals under clause 47, and these would have to be debated.

Mr L Nzimande (ANC, KwaZulu Natal) said that essentially a C-list must be prepared, to note what was agreed upon and what disagreed upon. The State Law Advisors, working with the DSS, should be providing that.

The Acting Chairperson noted that request. However, if the meeting was adjourned now, to allow the C-list to be prepared, it might make the meeting run very late into the night. He suggested that it would be preferable to convene another meeting, on the following day, to consider this.

Mr A Matila (ANC, Gauteng) agreed that the C-list would assist, as it would be the penultimate version of the Bill. The parties knew where they differed, and could vote on areas of disagreement. Even if Members were to go that process now, they would still need a C-list to finalise the issues. He agreed that the new proposals made today had to be included. Members would have to consider the Bill word by word, as one word could change the whole meaning.

Ms Ntwanambi thought that this was what the Committee was intending to do. She questioned how many more times this would be done. She did not understand the delay, saying that the parties were unlikely now to reach agreement on areas where they had consistently disagreed.

Mr Bloem agreed with Ms Ntwanambi’s comments in relation to the original discussions. Had it not been for the DSS input, the Committee could probably have finished the Bill. COPE was ready to vote on the Bill.

Ms Ntwanambi said she would agree with an adjournment, provided that the meeting continued to its conclusion on the following day.

Ms M Boroto (ANC, Mpumalanga) asked that one document be placed before the Committee on the following day. This would be a C-version, on which the Committee would be voting.

Mr Bloem noted that he was not sure of his commitments, although he was not, in principle, opposed to calling a meeting on the next day.

Mr Lees indicated that a meeting on the following day would not suit him.

The Acting Chairperson said that, this being the case, there was no option but to proceed.

Ms Ntwanambi asked what the problem was with the other parties. She did not want the ANC to be accused of steam-rollering the process.

Ms Boroto noted that no meetings were scheduled on the programme for this Committee, except for today.

Ms Ntwanambi suggested that there would probably be time on the following day to meet after the plenary session, which was likely to be quite short.

Mr J Gunda (ID, Northern Cape) said that had had other business commitments. He proposed that the Committee meet on the following Tuesday.

Ms Boroto proposed that the Committee meet on Friday morning.

The Acting Chairperson indicated that this would clash with other meetings.

Ms D Rantho (ANC, Eastern Cape) proposed that the meeting should continue later, after a break to compile documentation.

Mr Matila said that normally, Members would have sat until 17:00 on the following day, in the House, so they would surely be available if the plenary ended early. He reiterated that the C-version of the Bill had to be before Members. The NCOP did not want to repeat the kinds of mistakes made by the NA, as grammatical problems still appeared in Bills referred to the NCOP.

Mr Lees said that the DA would not be in a position to vote until putting all amendments to its caucus. The earliest it would be able to do that would be on Thursday morning, and if meetings could not be held after Thursday morning, then the meeting must be in the following week. Deliberation was one matter, but all parties required final caucus before voting. He was not mandated to take up a final decision at this stage. He would be able to meet on the following day, provided the meeting ended by 17:00, as there was a long-standing party engagement that he could not cancel.

Ms Boroto agreed that the DA would have to caucus, and this would be on the clean document.

Mr Gunda and Mr Worth indicated that they could be present. Mr Bloem indicated that he would have to confirm his availability later. All ANC members indicated that they would be present.

The meeting was adjourned, with a further meeting scheduled for 15:00 on the following day.