Chairperson and hon Minister, I too would like to thank all those hardworking officials and members of oversight bodies who have done an exceptional job over the past year. I thank them for being here today.
In this debate, on behalf of the ACDP, I would like to focus on the balance between national security considerations on the one hand - the need for secrecy - and the need for openness and accountability, as Mr Burgess said in opening the debate on this issue.
Clearly, open and transparent government and the free flow of information concerning the affairs of the state is the lifeblood of democracy. Let us be reminded of what the Supreme Court of Appeal said in 2010 when it confirmed that the state must justify secrecy when it seeks to rely on legislation denying access to information on the grounds of secrecy. We are not opposed to secrecy, but the state must justify it - objectively justiciable justification.
We share concerns that have been expressed about the abuse of secrecy when it comes to the Guptas and other issues. Of course, the main reason why it must be justifiable is to avoid political abuse, which has been referred to by previous speakers.
Now let us consider the issue of the Nkandla report. This raises significant constitutional and legal issues. The central issue is: To what degree does the Promotion of Access to Information Act trump the provisions of the National Key Points Act, given that Nkandla has now been declared a national key point? Is it legally correct that an application by the Mail & Guardian, under the Promotion of Access to Information Act, for all documents that show evidence of the financial implications of this project, should be refused in totality? This is despite the request for information disavowing any entitlement to secret security-sensitive information. The state's response has been a blanket refusal, and clearly this cannot be correct.
Firstly, one must ask whether national security considerations are not overridden by section 46 of the Promotion of Access to Information Act, which is a unique provision worldwide, and was included in South Africa because of our past. It provides that where disclosure reveals a substantial contravention of the law, or a failure to comply with the law, even where it relates to national security, the information must be furnished.
We know the internal task team has already investigated and found irregularities. In my view and the view of the ACDP, the trumping section 46 of the Promotion of Access to Information Act applies here and the information should be provided. It is clearly in the public interest to do so.
We also believe that section 5 of the Promotion of Access to Information Act, which is a trumping clause, is applicable. It states that it:
... applies to the exclusion of any provision of other legislation that -
(a) prohibits ... the disclosure of a record of a public body or private body ...
This clearly trumps the National Key Points Act. Once again, that information should be provided and we look forward, at the end of the day, to the court's deciding on this. Thank you very much. [Time expired.] [Applause.]