Madam, allow me to have my annual conversation with the hon President on the Chief Justiceship of the Republic of South Africa. In June 2009, after his election, I said that the hon President's choice of the Chief Justice would be the single most important act of his Presidency and that there was a natural successor. He assured me most courteously in reply that he would make a good choice. In May 2010, I acknowledged that he had made a great choice and that we look forward to an institutionally independent judicial branch under the leadership of Chief Justice Ngcobo. This year, I would like to say that I have actively supported the extension of the term of the Chief Justice because he is the leader we need, but that it should have been done by an Act of Parliament, as indeed I asked, and not under an Act. The situation that has now arisen as a result of a challenge by certain legal nongovernmental organisations, NGOs, is undesirable. It places our judges in a position where they effectively have to rule on the fate of their chief and places the Chief Justice himself in contention. If the hon President had consulted the hon Trollip and the other party leaders in Parliament before the fact, he would have received better advice on the best way to extend the term. We accept that he acted in good faith and so too did the NGOs, but the position of the Chief Justice is now in contention.
In order to secure that position, this morning the opposition MPs in the Justice committee tabled a proposal that the Justice committee should put before this House a one-line Bill extending the term of office of Judge Ngcobo. We regret that it did not find the necessary support and that we so lose the opportunity to bring this unbearable situation to a quick and elegant end by passing the Act of Parliament which the Constitutional section 176(1) requires.
While I believe that the hon President has shown proof of a genuine commitment to the Constitutional separation of powers here at home, I am less impressed by government's stance on the Southern African Development Community Tribunal. How is it possible that South Africa could support the suspension and effective closing down of that court while its design and jurisdiction are purportedly reconsidered? The exact equivalent would be that we suspend the Constitutional Court while we deliberate on the 17th Constitutional Amendment, which precisely redesigns our court architecture and expands the Constitutional Court's jurisdiction! It is clear that the SADC Tribunal is in limbo because Zimbabwe does not like its judgements. SA is acting contrary to its own constitutional principles in supporting this travesty. We would welcome an explanation from the hon President on his government's actions on that tribunal during his reply.
There is another question on which I need to ask the hon President to reflect. We will be petitioning him on the Protection of Information Bill under section 79 later this year, asking him to send that Bill back here before assent if its unconstitutionalities are not cured. I raise some of these today.
The first is the criminalisation of the possession and disclosure of classified information, which is of such concern to journalists and has been declared unconstitutional by a Canadian court, and on which I wonder if the hon President does not in fact find himself on the media's side. Let me explain.
Is it the case that the hon President was in possession of, and then disclosed, classified police intelligence intercepts which precipitated the collapse of his own prosecution on charges of alleged corruption, or knew that his legal team was and did? Did he not feel that his assertions had been proven and his rights vindicated when he received and used the intercepted conversations? I am not addressing now the question of political spying, tainted prosecution or the merits of the abandonment thereof. I ask simply if he does not in fact find himself on the media's side on the subject of possession and disclosure. What has been good for the hon President must of course be good for everyone. He will not want to hold himself above the law. He ignored the 1982 Information Act and the 2002 Intelligence Services Act. Why now support the same thing in what is after all a Mbeki Bill?
I raise a second concern about one of his ministries and departments, which connects to a third and a fourth. The DA has been arguing since the first sitting of the first ad hoc in 2008, that the classification law cannot apply to all organs of state. We say that it should apply only to departments that deal with national security and to international relations, and maybe a few others, at their request. Today I want to give an example of what happens when secrecy applies indiscriminately. A month ago every official of the Department of Basic Education was informed that he or she should sign, on pain of dismissal and in perpetuity, even after retirement, as if they are spooks, an agreement to maintain secrecy. I have it here. What is it that the officials have to keep secret? It is the following: Classified material or any information or intelligence with regard to the sources, agents - who would have guessed Basic Education has agents? - operational methods, technology, financial personnel and administrative policies of the Department of Basic Education. Yet, that Ministry - by the way - told us in reply to a Parliamentary question that it is a new department and therefore has no classified information.
Sir, Basic Education is not exactly one of the glories of your administration. There is doubt and suspicion about matric results and about the veil of secrecy drawn over adjustments made. Parents and learners are entitled to full information. It is theirs by Constitutional right. This is a denial of delivery information.
Hon President, there is a fourth problem which may blow this Bill out of the water unless we can persuade our ANC colleagues to abandon the application clause. That clause includes not only the 1 001 organisations that Idasa counted, but also all the spheres of government. How does the secrecy agreement affect provincial education departments? We are finding out, but we raise the question.
Lastly, the Bill's provisions on public record-keeping duplicate the National Archives and Records Services Act. The provinces have exclusive legislative competence on archives and some have their own Acts. Hon President, unless the application clause is amended and chapters thrown out, this Bill will be blown out of the water. [Time expired.] [Applause.]