Protection of (State) Information Bill: Working Document 11: definitions; clauses 33 - 49 changes; erroneous classification effects; clause 46 suggested amendments; Public Domain defence: IFP proposals

Meeting report

Introduction
The Chairperson accepted an apology from Dr M Oriani-Ambrosini (IFP) for his unfortunate, unintended innuendo in a previous meeting. As Dr Oriani-Ambrosini explained, that Mr L Landers (ANC) had used a prepared text was not to be taken as a poor reflection of Mr Landers' abilities. The Chairperson thanked Dr Oriani-Ambrosini for being so precise.

The restricted application clause
The Chairperson said that this matter was still outstanding: he expected the African National Congress (ANC)'s response over the weekend. He was confident that all Members understood what that clause was supposed to say, but he wanted to see it properly worded.

The definition of national security
This was second outstanding matter of considerable importance. He wondered if Members had discussed this definition informally outside the Committee' s meetings. Opposition Members had suggested that two aspects be added to the clause after there had been a broad agreement on the definition of national security. There was a question as to 'how come and why?' and on the significance of those additions.

The Chairperson did not wish to encourage comment on the above two clauses, but he was just saying that these two important issues needed to be resolved. He wanted discussions around those two issues circulated so that Members did not spend unnecessary time in the Committee's meetings in arguing about them. The arguments had already been heard. Informal discussions 'behind the scenes', at lunch, for example, might be more helpful.

Public interest
Members would recall that in the meeting held on 29 July 2011 he had given Members an opportunity to express their views on the public interest. He himself would have something to say on the matter when the Committee reached this particular clause in its deliberations, when Members would have to decide how to proceed on that matter. He appealed to Members to make an effort to achieve agreement 'behind the scenes'. This might be easier than reaching agreement within the Committee's formal proceedings. The matter was unlikely to be on the agenda this week. He felt that Members had already exhausted most of what they had to say about the public interest.

Classified information in the public domain
The Chairperson agreed that Dr Oriani-Ambrosini be heard on classified information in the public domain. However, the present moment was not the time.

Mr D Maynier (DA) said that the Democratic Alliance (DA) Members had discussed the public interest defence on 29 July 2011 and had circulated a proposal.

National security
Mr Maynier said that the DA had further discussed national security and had a new proposal to be circulated today.

The Chairperson hoped that Members would discuss the DA proposals in an informal environment - think about them at home and do their research on them in order to prepare for formal deliberations.

Programme for next week
The Chairperson would take up this matter later in the meeting. Next Tuesday was a public holiday and on Friday, 12 August the Judicial Service Commission would deal with the appointment of the Chief Justice. The Chairperson was required to attend. Therefore the Committee would not sit that Friday, unless Members agreed to appoint an acting chairperson.

Work for the day
The State Law Advisors had been assigned to update the working document and incorporate those items that Members had agreed upon. The State Law Advisors had also been given other work.

Members would expect the State Law Advisors to present the updated working document.

Protection of (State) Information Bill: Continuation of deliberations on 1 (1) – Definitions
Working Document 11, 04 August 2011: State Law Advisor's summary of changes effected

Agency
Ms Carin Booyse, Deputy Chief State Law Advisor, Office of the Chief State Law Advisor, referred to page 7 of the latest Working Document. The definition of agency had been inserted. She read the definition.

Archive
The definition of agency had been inserted. She read the definition. The State Law Advisors had examined the Defence Act and other legislation. The Defence Act, Section 83 (3) included a provision for the Defence Archives Repository. Other examples of repositories kept in accordance with other legislation had been found, for example, the Disaster Management Information System, kept in accordance with the Disaster Management Act 2002.

Ms Booyse referred to page 8 of the latest Working Document.

Classified information
The word 'the' had been deleted before 'state information'. After the words 'MISS Guidelines or any other law' the words 'to be information that may be accorded heightened protection against unlawful disclosure' had been deleted.

Ms Booyse referred to page 9 of the latest Working Document.

Downgrading of information
Ms Booyse read the amended definition.

Dr Oriani-Ambrosini interrupted. The above amended definition of classified information did not reflect Members' agreement on the matter.

The Chairperson ruled that Dr Oriani-Ambrosini's objection should be dealt with later.

Ms Booyse referred to page 10 of the latest Working Document.

Hostile activity
Ms Booyse explained that the definition had been inserted here, and read the definition.

Ms Booyse referred to page 11 of the latest Working Document.

Information
Ms Booyse read the definition.

Ms Booyse referred to page 14 of the latest Working Document.

Intelligence
Ms Booyse read the definition.

Ms Booyse referred to page 15 of the latest Working Document.

Non-state actor
The words 'involved with' had been replaced with 'engaged in'.

Ms Booyse referred to page 16 of the latest Working Document.

Protected information
This definition had been deleted.

Public interest
This definition had been deleted.

Ms Booyse referred to page 17 of the latest Working Document.

Request
A definition had been inserted. Ms Booyse read the definition.

Requester
Ms Booyse read the definition and noted that 'requester' occurred only once in the Bill, in Clause 27(3).

Relevant Minister
A definition had been inserted. Ms Booyse read the definition.

Secret information
This definition had been deleted.

Security clearance
This definition had been amended. Ms Booyse explained why. 'Subject to the need to know' had been deleted since 'need to know' had been taken out of the definitions clause.

Ms Booyse referred to pages 18-19 of the latest Working Document.

The state
This definition had been inserted. Ms Booyse read the definition.

Valuable information
This definition had been taken out and substituted with alternative definitions – Option A and Option B.
Ms Booyse read the alternative definitions.

Ms Booyse referred to pages 19-20 of the latest Working Document.

Ms Booyse asked if she should explain the separate documents that the State Law Advisors had prepared.

The Chairperson asked her to confine herself to the definitions for the time being.

Discussion
Classified information
Dr Oriani-Ambrosini had six problems all related to the definitions. Firstly, regarding classified information, he understood this to mean state information that had been determined under the Act or any previous law to be information that might afford heightened protection to unlawful disclosure. It meant any information that had been determined under this Act. Determined as what - to be classified? There had been a problem in making reference to the Minimum Information Security Standards (MISS) guidelines – an internal, administrative document. He understood that the matter was going to be dealt with in the transitional provisions.

Mr S Swart (ACDP) said that 'determined' needed to be made clear. 'Determined as what?' He suggested that words be reinserted to make this clear. There had been a lengthy discussion on the meaning of classified information. It was an historical fact that information protected under the Protection of Information Act 1982 was classified information. Dr Oriani-Ambrosini had had a problem with that. There had then been discussion on the provisional arrangements and whether such words should be inserted. So long as the words that were excluded in the brackets were inserted, there was no problem with the present formulation. The key point that Dr Oriani-Ambrosini had made was that by including it here one was elevating information under MISS to be classified information, but indeed such information had historically been classified information that must be looked at again.

Ms Smuts said that this was a correct reflection. There had been a long discussion on whether the MISS had any statutory basis and it had been concluded that it had not. Members had decided that it was necessary to recognise the fact that material was in fact classified under it and accept that such material enjoyed some ex post facto recognition. 'Hopefully it will not be long before this law kicks in.'

Dr Oriani-Ambrosini said that the definition of classified information referred to words that occurred throughout the Bill. By dealing with it in the transitional provisions, he understood that the agreement here was that one dealt only with classified information 'in terms of this Act'.

The Chairperson noted that, in this context, Members had agreed that the word 'the' should be removed. Also Members agreed that there should be a full-stop after the word 'law', and the words following that must be deleted. This was the instruction given to the State Law Advisors, and this was what in fact had been done. This followed a long discussion on the status of MISS. Did Members want to change the definition yet again?

Dr Oriani-Ambrosini pointed out that there was an additional instruction to deal with everything concerning the transitional arrangements within the transitional arrangements and remove from the definitions anything concerning transitional arrangements. The problem with having it here was that one was dealing with classified information which was mentioned throughout 'the Act'. By so doing, every time one read classified information, one dealt with everything that was presently purported to be classified, even in compliance with the 'old act'.

Mr Swart saw no problem with the present formulation. He also saw no problem with Dr Oriani-Ambrosini's formulation. To take the process forward, he suggested putting it in the transitional provisions. Perhaps there had been a misunderstanding. Therefore he suggested including a reference to the Protection of Information Act 1982 and the MISS Guidelines in the transitional arrangements. This was not a major issue that Members should spend much time upon. 'Let's insert the words that were deleted in brackets.'

Mr Landers said that the transitional provisions already existed. They were in Clause 49, on pages 84-86 of the Working Document. They referred to the MISS Guidelines and to the Protection of Information Act 1982 or any other law. A procedure, however, was needed that clearly dealt with that information. There had been a long debate on whether the Committee was legitimising the MISS Guidelines. Members had agreed that it was not something that they could fix. It was something that they would have to live with, as Ms M Smuts (DA) had alluded to. Hopefully, before someone had the bright idea of testing it in a court of law, this Bill would be passed. He did not understand where the problem lay in the definition. On reflection he thought that the words at the end of the definition of classified information should remain. As to the remainder of Dr Oriani-Ambrosini's difficulty, he did not really understand the problem. Where it said 'had been determined', perhaps 'determined' could be taken out and replaced with 'classified'.

Ms M Smuts (DA) commented inaudibly.

Mr Landers said that the act of classifying had been set out elsewhere.

Dr Oriani-Ambrosini said that the state information which had been classified under this Act should be specified. Then one should deal with the transitional provisions under transitional provisions. He explained how. Any information classified under any previous law should remain classified subject to 'this Act'.

Ms Mentor commented inaudibly.

The Chairperson said that he had not wanted to wait to Clause 49 – Transitional Provisions – before dealing with this matter, since this Bill was going to repeal two Acts. So how this would affect the transition period needed to be considered.

Ms Mentor said that this was an important point.

Mr Landers agreed. This matter was normally dealt with via the Regulations. What the President could do, and the Minister's cooperation was needed in this regard, was to ensure that the Bill was not signed into law at once without ensuring that the transitional provisions remained in operation until such time as the review and an audit had been done. Thereafter the repeal process could begin. It might seem clumsy, but this was how it was normally done.

Mr Swart said that this was a very positive contribution. However, he suggested an alternative arrangement, whereby any information classified under any previous law or MISS should remain classified notwithstanding the repeal of such previous acts. The next section was already there – that an automatic review must take place.

Dr Oriani-Ambrosini asked Mr Landers for his views on an assumption that a piece of information had been classified in total violation of one of the criteria of that one was imposing 'in this Act'. For example, classifying something to keep an instance of corruption secret. Such information would remain classified until declassified. It would get declassified if picked up through the processes of review if it was more than 10 years or by the Head of State going through the entire process. There would not be anything in law which would prompt a recognition that there had been a violation of law. If the same thing was done 'under this Act' this piece of information would not be reclassified. There was thus this disparaging difference where the old piece of information which violated 'this Act' survived awaiting actions that might or might not be taken by the administration to correct them. The same piece of information purported to be classified 'under this Act' would be illegally classified. This highlighted the problem and the difficulty. Whatever was allowed to survive must be subject 'to this Act'. Otherwise that which was illegal in terms of 'this Act' would be protected.

Ms Mentor asked if one was writing a law for the future or for the past. What happened to the apartheid laws?

Mr Landers asked that Members think the matter through logically. Any information classified under the Protection of Information Act 1982, the MISS Guidelines or any other law would remain classified subject to 'this Act'. 'This Act' said that the organ of state that classified information would be responsible for its declassification and downgrading. It also said that where an organ of state was defunct, in that situation the agency took responsibility as if it was the head of the organ of state and was therefore responsible for its declassification and downgrading. One needed to apply one's mind to Clause 20, on the maximum protection period. Declassification was not automatic. Provided one followed the transitional provisions, he did not think that there would be a problem.

Mr Swart read the wording that he suggested: 'Subject to this Act, any information classified under the Protection of Information Act 1982, the MISS, or any other law, shall remain classified notwithstanding the repeal of such previous laws.' Subject to 'this Act' there would be an automatic review. One could examine the legal implications.

The Chairperson understood that Members wanted this added in Clause 49 on the transitional provisions. There was currently a clause dealing with something similar there. Were Members happy that this could be added as an additional clause. He would urge that the existing clause remain. This would result in Clause 49 having three sub-clauses instead of the present two. However, he detected no support for his proposal that it be inserted as 49(3).

Ms Booyse said that it should be inserted as Clause 49(2) as the numbering for Clause 49(3) was already reserved for an additional page that she would give out.

The Chairperson asked if she had the wording.

Ms Booyse confirmed that she had.

The Chairperson pointed out that this wording was 'sealed'. He asked for a return to discussion of the definition of classified information.

Mr Landers said that under the original Bill, page 25, it was Clause 50 that dealt with the repeal of laws. Why was the Defence Act, Section 83 (3) ( c) to be repealed?

Ms Booyse said that this Section was referred to at the bottom of page 7 of the Working Document. This related to the repository created in the Defence Act.

The Chairperson confirmed that it was quoted in the Working Document.

Ms Booyse said that in Section 83 (3) (b) no record might be transferred to the National Archives.

The Chairperson asked if the Committee could 'cross that bridge when we get there'. He asked Members to return to the discussion of the definition of classified information. He said that the problem was that the definition of classified information applied just to 'this Act'. He asked Mr Maynier if he would agree to such a drastic change in this definition.

Mr Landers suggested a direct reference so that one could not simply ignore that body of information and how it must be treated.

The Chairperson thought that the State Law Advisors thought that there was something unsound about that in law.

Ms Booyse said that 'this Act' was already defined as well and it meant 'this Act'.

The Chairperson asked if Members agreed that 'determined' should be deleted and replaced by 'that has been classified under this Act' with a full-stop after 'Act'; and that the State Law Advisors should delete those other 'clauses' on which they had spend half a day in drafting; and that the Chairperson should see that these 'clauses' be deleted permanently.

By their silence, Members indicated agreement.

The Chairperson asked if Members could move on.

Hostile activities
Dr Oriani-Ambrosini inferred that Members wanted to make the point that the state was an entity which was not equal to the Republic, since the Republic was the entire country, which was organised in a republic. It included the people, it included the territory, and included the three notions of power. The power of the republic so organised was exercised through the state. These were the concepts that Members were trying to capture to avoid the identity that the republic was the state, which was reminiscent of the days when the President was the State President, whereas today there was a President of the Republic. He wanted it to be clear that the definition of aggression meant sabotage and terrorism aimed at the people of the republic not of the state. 'I am not a person of the state. I am a person of the Republic.' He noted that his house was not in the state, thanks be to God, but in the Republic.

Ms Smuts agreed with every word that Dr Oriani-Ambrosini had said. She referred to the definition of the state, a few pages later. According to this definition, the state meant the Republic of South Africa.

The Chairperson observed that the terminology should not be strange to Members, since it came from the Promotion of Access to Information Act (PAIA) and PAIA referred to the Republic. PAIA had been based largely on the Canadian version of legislation on access to information dating from 1980. PAIA had learned much from that legislation. The Canadian Act had exactly the same terminology. In the Canadian definitions, hostile or subversive activity meant espionage against Canada or any state aligned or associated with Canada. The Committee had replaced 'state' with 'republic', which was consistent with PAIA.
 
Ms Mentor had no problem with the word 'republic'; it was the right thing to do. She fully agreed.

Ms Mentor asked why, under hostile activity (b) sabotage was listed but espionage had been omitted. Espionage was an act of hostility. The Canadian Act included espionage under hostility. She proposed that espionage be included.

The Chairperson replied that Members were considering Clause 1(1) on definitions, so obviously the definitions must apply to something in the text. In the text of the Bill one would find offences that related to subversive and hostile activities, and hence that particular term had been captured in the definition clause. Espionage was a special offence and had been captured as a separate offence. Hence it did not appear in the definition Clause.

Ms Mentor asked if the Chairperson wanted to tell her that sabotage and terrorism were not mentioned anywhere else in the Bill. She wanted espionage specifically to be defined as an act of hostility against the Republic.

Mr Maynier agreed with the Chairperson. Espionage and hostile activity were two separate definitions since they were related to two separate offences. If we were to 'collapse them', we might incur difficulties when dealing with the offences. Perhaps a suggestion to move forward would be to return to this when Members dealt with the whole question of amendments to the part of the Bill dealing with offences.

The Chairperson encouraged Ms Mentor to review the offence of espionage in the Bill, also the offences of hostile activities. There was very little difference in the wording. What Members had tried to do was to join the two offences but make the punishment different. What Ms Mentor was asking the State Law Advisors to do, the Committee had already done. It sought to have under espionage one extended offence including hostile activities. There had been a great deal of argument and confusion. He understood that there had been agreement on the offence of espionage but the offence of hostile activity had not been agreed upon. However, at present, the Committee was merely looking at the definitions. When the Committee reached the relevant text, it would have to deal with the offence of hostile activity. The DA had proposed, with some support from some others, that offences under ‘hostile activity’ should be deleted and the he had asked that this issue be flagged. He understood that what was proposed now was to leave the matter as it was and to deal with the definition again once Members reached the relevant portion in the Bill's text.

Mr Landers said that opposition party Members had demanded to know where to find this. They had asserted that there was no such thing as hostile activity until it was pointed out to them that hostile activity was referred to in the Promotion of Access to Information Act (PAIA).

Ms Smuts asserted that it was she herself who had pointed out to Mr Landers the reference in the PAIA.

Mr Landers acknowledged Ms Smuts correction. In PAIA it went further to explain what was meant by hostile activity.

The Chairperson said that the decision that would have to be taken if there was no agreement was whether those offences should be deleted or should be retained.

Mr Landers said that the distinct difference between the offence of espionage as opposed to the offence of hostile activities was that the offence of espionage sought to benefit a state or a non-state actor like Al-Qaeda, whereas the offence of hostile activity was an offence which prejudiced the Republic or a South African.

Dr Oriani-Ambrosini said that it was valuable to have the discussion here while Members were all focused rather than resume it anew when Members reached it later. He was happy: 'I think we have cracked this nut.' The issue was that prejudice did not mean anything and there was always greater risk in disclosing classified information because such information could only have been classified if its disclosure was prejudicial to the state. Here Members had created the higher threshold that they wanted. The physical aspect was there, and he was happy with it. However, it remained to deal with the intentional aspect. Both in respect of espionage and hostile activity Members had felt that they had dealt with intentional aspect by inserting the word 'intentionally'. In the United States, the word used was 'wilfully'. He explained the difference between 'intentionally' and 'wilfully', which was significant and relevant when talking about this kind of conduct. On this basis, he argued that 'wilfully' should replace 'intentionally'.

 The Chairperson observed that in South African criminal law that, irrespective of whether an offence was committed 'wilfully', 'intentionally' or 'knowingly', mens rea must exist. The only other issue was negligence. This was specific to crimes such as culpable homicide and negligence in driving in which there was a specific offence requiring the mens rea to be that of negligence. The courts would not distinguish between 'wilfully', 'intentionally' or 'knowingly'. In other words, one could not commit the offence of espionage by negligence. If Members wanted that to be an offence, that was another matter. Then one must say 'intentionally and negligently'. If you say 'wilfully' you are referring only to committing the act with the necessary intention. He noted that Dr Oriani-Ambrosini had acknowledged that he was not an expert on criminal law.

Ms Booyse confirmed that the Chairperson was correct. The mens rea was captured in the intention to commit a crime. There was no difference between 'intentionally' and 'wilfully'.

Mr Swart agreed that the Chairperson was correct in that 'wilfully', 'intentionally' and 'knowingly' were the same. They were purely interchangeable. There was no need to spend much time on this issue.

Dr Oriani-Ambrosini would take legal advice.

Mr Swart pleaded that Members move on. 'We are all tired.'

Dr Oriani-Ambrosini responded that being tired was no excuse for being grumpy. If the legal opinion supported his position, he would raise the matter again. If the legal opinion was to the contrary, he would not mention the matter again.

The Chairperson wanted to move on. One of the Committee's 'registered spies' had been sent to find out if tea was available. Until such time, deliberations would continue.

Mr Maynier wanted to confirm that Members had agreed to amend the definition of 'hostile activity' to align it with PAIA by deleting 'state' and inserting 'Republic'.

The Chairperson said 'So we're back to where we are.' Already there had been a long discourse from Dr Oriani-Ambrosini on 'state' and 'Republic'. Inserting 'Republic' would be consistent with the Canadians.

Mr Landers supported Mr Maynier that 'state' should be removed and 'Republic' be reinstated. He apologised to the drafters for the Committee's going back and forth.

The Chairperson warned that this might affect the definitions. Ms Booyse should keep this in mind. He also pointed out the need to distinguish 'state' and 'State'. He assumed that 'State' meant the 'Republic'.

The Chairperson noted that Members had agreed to everything else in the definitions thus far.

Confidential information
Mr Maynier drew attention to the definition of 'confidential information', which he thought was to be deleted because superfluous. Perhaps this was an omission.

The Chairperson noted this as a new proposal.

Ms Booyse said that the issue had been flagged for later discussion under the definition of 'top secret information'.

The Chairperson sensed that the proposal now was to delete all definitions relating to 'top secret', 'secret' and 'confidential'. He thought that 'confidential information' was quite a neat and simple thing. 'It does not tell you anything.' Why could not all the terms be defined the same way – by referring the reader to the relevant clause. Many laws referred one to the text when it came to definitions.

There was laughter.

Mr Maynier agreed, 'in the interests of stopping the torture', to include all classification levels in the definition with the provision that all three needed to remain.

The Chairperson said that it was his proposal. It made a bill incomplete when the terms and concepts that were so vital to the bill were not included in the definitions. He asked Ms Booyse to give 'secret' and 'top secret' the same treatment as 'confidential information'.

The Chairperson asked Members please to move on.

Demonstrable harm
Mr Swart noted that Members had agreed previously to delete the definition of 'demonstrable harm'.

Dr Oriani-Ambrosini said that the Bill, when enacted, would guide not only the courts but the officials. So including 'demonstrable harm' was important for the purpose of guiding the officials on implementing the legislation.

The Chairperson noted a lack of support for Dr Oriani-Ambrosini's proposal.

The Chairperson noted that the definition of 'demonstrable harm' was to be deleted.

Requester
Mr Landers asked why a definition of 'requester' was needed in the presence of a definition of 'request'. It was self-evident.

The Chairperson noted that Members had agreed to delete the separate definition of 'requester'.

Ms Smuts thought that there was no attempt to limit the number of people who could apply.

Dr Oriani-Ambrosini wanted clarity on who could make the request. 'Let me finish', he pleaded with somebody who tried to interrupt him. He believed that Members were in agreement that anyone could request information. The words 'any person who makes a request in terms of the provision of this Act' needed to be put under the definition of 'request', at which point the definition of requester could be deleted.

The Chairperson noted that Members had agreed to Dr Oriani-Ambrosini's suggestion. 'Any person' would be added with the meaning that Members knew it had.

Mr Landers asked what would happen if Osama bin Laden's successor requested information.

The Chairperson said that Bin Laden's successor could request information.

Dr Oriani-Ambrosini said that, under the Constitution, information was a human right attached to the quality of being human. One could not discriminate on the basis of whom we liked or disliked. Even the devil incarnate had exactly the same rights as Members of the Committee to access information.

Ms Smuts pointed out that Section 32 of the Constitution applied to non-citizens and citizens.

Ms Mentor said that rights could be limited. There were only two rights that could be limited under the Constitution – the right to life and the right to human dignity.

Dr Oriani-Ambrosini said that the limitation on rights related to space, manner and place. One could not limit rights by excluding a category of people. Section 32 applied to everyone.

The Chairperson did not know why Members were pursuing this matter. The Constitutional Court had already ruled that these rights applied to foreigners too.

Ms Booyse said that the reasons for the application for information would be stated in the application. It was in the provisions of PAIA that any person was entitled to information.

The Chairperson sought to reclaim Members' attention. The discussion into which they were entering was unauthorised'.

Members laughed.

The Chairperson continued. If Members wanted to argue about fundamental human rights they could do so over tea, lunch or dinner. The topic was not relevant to the Committee's deliberations.

The Chairperson noted that if any strange person requested information, the authorities would deal with it and see if it was in the national interest or if other laws might apply.

Relevant minister
The Chairperson noted that the Committee had agreed on the definition of 'the relevant minister'.

The Chairperson adjourned the meeting for a tea break.

Security clearance
When the meeting reconvened, the Chairperson noted that Members were satisfied with the definition of 'security clearance'.

The state
The Chairperson referred to page 18 of the Working Document, 11. He noted that Members had agreed that the words 'the state' should be deleted from the definition '”the state” means the state of the Republic of South Africa'.

Valuable information
Mr Landers believed that Option B made sense (Working Document, 11, page 19) and urged the Committee to adopt it.

Ms Smuts expressed the Democratic Alliance's view that it did not want to include the definition of 'valuable information', but, with that proviso, Option B was acceptable.

The Chairperson noted agreement on Option B as a better definition of valuable information.

Dr Oriani-Ambrosini observed that in discussions, Members had identified value in information, not merely because it was necessary to ensure people's access to services or benefits, but for academic, research or historical purposes, for example, the proceedings of today's meeting. This was valuable information that the Republic should maintain.

The Chairperson suggested that the words 'subject to this Act' should be added.

Ms Booyse replied that if the words 'subject to this Act' were added, it would no longer be a definition. She suggested 'contemplated by this Act' or 'in terms of this Act'.

The Chairperson said that the meaning applied only to this Act. He noted that Members had finished their deliberations on the definitions. However, the subject of 'peddlars' would be discussed later.

Clauses 1(2) and (3): State Law Advisors' proposals on the interpretation of the Act
Ms Booyse referred to a separate two-page document – Interpretation of Act Proposals. The State Law Advisors had been asked to review other relevant legislation, such as the Promotion of Access to Information Act (PAIA) 2000 (Act No. 2 of 2000), Section 2, the Promotion of Equality and Prevention of Unfair Discrimination Act 2000 (Act No. 4 of 2000), and the Mineral and Petroleum Resources Development Act 2002 (Act No. 28 of 2002) with regard to interpretation and conflict.

Ms Booyse pointed out that as a later piece of legislation, the Bill was more specific than the preceding PAIA.

The State Law Advisors proposed that in the event of any conflict between a Section of this Act and other national legislation in force immediately prior to the date of commencement of this Act, the Section of this Act prevailed if the conflict specifically concerned the classification and protection of state information.

Discussion
Ms Smuts believed that this formulation was unnecessary as Mr Swart as well as DA Members had reminded the Chairperson. Section 5 of PAIA said that PAIA prevailed. This was correct. Secondly the new law must fit like a puzzle piece next to PAIA. It did so in Ms Smuts view. The relevant Section of PAIA was Section 41. There was nothing in PAIA to prevent one from classifying, provided one did not impermissibly weight the chances of not getting information. What had been done in the new redraft so far was to ensure that one could apply for classified information in the same way as one could apply for unclassified information, which was already the case under PAIA. This meant that in the redraft this balance had been left undisturbed. A pending definition of national security sat perfectly well next to PAIA. The new proposal just circulated was quite unnecessary and 'looking for a whole load of constitutional trouble'.

Mr Swart agreed with Ms Smuts. He affirmed that nothing should be taken away from PAIA. The proposed conflict provisions would take away from PAIA.

Dr Oriani-Ambrosini said that conflict in legislation arose when legislators thought that there was no danger of conflict. It was unintentional. He thought that the new proposal was required to limit potential conflict. So he supported State Law Advisors' proposal.

The Chairperson said that a full understanding of Section 5 of PAIA was required to decide whether the new proposal was required or not. Dr Oriani-Ambrosini was correct when it came to interpretations in general. The Chairperson did not want to enter a discussion now. He preferred to move on.

Mr Swart would fall back on the original wording of the Bill, which contained a general clause, not a 'trumping clause'.

Ms Smuts asked if the law that Members were now drafting materially inconsistent with PAIA. If it was not materially inconsistent then there was no problem. There was no need for a conflict of laws clause.

The Chairperson referred to page 19 of the Working Document and proposed flagging the unresolved Clauses 1(2) and (3), because the conflict argument and interpretation argument were interlinked.

Clauses 1(4), (5) and (6)
Ms Booyse said that Clauses 1(4) and (5) would be deleted. Clause 1(6) would be moved in a modified form to the penalties.

The Chairperson noted Members' agreement.

Clause 32: espionage offences
Ms Booyse referred to page 60-62 of the Working Document 11. The State Law Advisors had been asked to reinsert the espionage offence as a separate clause. So espionage was now reflected as Clause 32. She detailed changes to wording in the various paragraphs. There was a new sub-clause – Clause 32(4) which had been removed from the definitions. It had formerly been Clause 1(6). She read the Clause.

Discussion
Mr Swart thought that minimum penalties would be deleted, except in Clause 32(1) but noticed that they had been retained.

Ms Booyse recollected that Members would still debate the espionage activity offence in respect of minimum sentences. This was why it was still reflected as it stood.

Mr Landers thought that there was unanimous agreement that Clause 32(1) should provide for the minimum sentences. His memory failed him regarding Clauses 32(2) and 32(3). He was unsure whether Members had reached an agreement or had actually flagged these matters.

The Chairperson said that Mr Landers had been clear that espionage was a serious offence, and only in respect of that offence the minimum penalty should be retained. However, for all other offences it should be removed. Mr Swart was saying something new.

Mr Swart said that minimum penalties should not apply with low-level offences. He did raise the matter before, but it had not been finalised.

The Chairperson noted agreement that the top secret offence in the espionage section would retain the minimum sentence. There was some confusion as to whether a minimum sentence should apply in the case of secret and confidential offences.

The Chairperson noted agreement on Clause 32(4). It was correctly captured.

Mr Swart said that an argument could be made for the application of minimum penalties for offences related to secret documents, possibly, and for removing it for confidential documents, which were at a low level of classification.

The Chairperson noted this counter-proposal.

Ms Mentor asked if theft of several confidential documents constituted one or several offences.

The Chairperson defined the offence as passing the document on to a foreign state. The person passing on a secret document was committing a much more serous offence.

Mr Landers said that the key element in these clauses was benefiting directly or indirectly another state. It had been handed back to the court to decide whether substantial and compelling circumstances existed whereby it could impose a lesser sentence. On that basis the contents of Clauses 32(2) and 32(3) should remain.

Ms Swart agreed to accept that basis and that Members should move on.

Dr Oriani-Ambrosini pointed out that 'other states' should be designated 'foreign states'.

Mr Maynier said that the DA could not agree on the formulation of the amalgamated offence of espionage and hostile activity. However, this was something that Members would presumably discuss later.

The Chairperson noted that Members had agreed to replace 'other state' with 'foreign state'. The end of the matter.

Dr Oriani-Ambrosini did not think that it made much difference whether the offence of espionage was amalgamated with hostile activity or not. The issue was the definition. He did not think that the definition of hostile activity, with which Members were comfortable, had been reflected in the Working Document 11.

Mr N Fihla (ANC) believed that espionage was a far more serious offence and could not be equated with hostile activities. Espionage, moreover, was conducted by governments against governments and benefitted another state. So the penalties could not be equated.

Ms Booyse said that the proposal on page 62 reflected the penalty for the offence of receiving a document.

Ms Mentor thought that Mr Fihla's question had not been answered.

The Chairperson thought that Mr Fihla's was making a point and asserting that the two offences should not be amalgamated.

Ms Swart thought that Dr Oriani-Ambrosini's point was very valid. He asked if mere disclosure of information was a hostile act. Also the receiver must have the intention to benefit another state to satisfy the offence of espionage.

Dr Oriani-Ambrosini agreed with Mr Swart. He referred to the document on Espionage as defined in the United States, which he, Dr Oriani-Ambrosini, had circulated.

Mr Maynier said that the original argument for deleting the hostile activity clause was concern that the use of the term 'prejudice the state' was too broad, so that the disclosure of information to a media group could constitute a hostile activity. Secondly, there was concern on behalf of the Department that there might be disclosure of classified information to al-Qaeda. This was, in Mr Maynier's view, a legitimate concern. If hostile activity was left in the Bill as it was, it was too broad and not aligned with mischief. The matter should be thought through.

Mr Landers noted that there was a tendency to 'cherry pick' foreign practice. Secondly, he noted that hostile activities had been raised as a red flag by Members of the DA. If the offences of hostile activities and espionage were to be amalgamated, there would be need for a minimum penalty.

Ms Mentor pointed out the illegal disclosure of classified information both as a hostile activity and as espionage, whether one collapsed them or separated them, related to disclosing to an unauthorised person who might be a South African citizen or a resident.

Mr Landers said that it was alarming to hear a proposal that these offences should be restricted to members of the security and intelligence services. Was this what happened in America? It did not, so why should it be imposed on South Africa?

The Chairperson said that the State Law Advisors had been asked to draft a clause to cover the possible oversight that the person who received classified information might go unpunished. The proposal on page 62 was precisely to cover this matter that Members had asked for.

The Chairperson inferred that Members had agreed to this proposal.

Mr Fihla said that the United States and the Union of Soviet Socialist Republics (USSR) had exchanged spies, but, more importantly, both countries had punished the one who supplied and the one who received classified information equally.

Mr Maynier said that the DA wished to take some time to consider the proposal. The DA's assumption was that the receiver of information in the espionage context was a foreign agent. However, the draft proposal did not actually say that. He asked what would happen if the receiver was a South African citizen and disclosure would be in the public interest.

Mr Landers replied that the Bill said that such a case would be dealt with as provided for. Malfeasance was covered in the Bill.

Ms Mentor said that a citizen of the Republic could also be an agent of a foreign state.

Mr Swart was now satisfied as to the meaning of 'intent'. He was concerned about the implications for an innocent receiver of classified documents.

Mr Maynier did not object to criminalising the unlawful receiving of classified information that might benefit another state. The person who received such information might be a foreign citizen or a South African citizen. However, he was concerned that this might cause some mischief in the drafting, so he would like some time to look at it.

Mr Landers was grateful to Dr Oriani-Ambrosini for his note. Perhaps Members could borrow from it in this instance. Mr Maynier had correctly pointed out that agents of foreign states came in different guises. Mr Landers referred to the United States definition of foreign government. If words to that effect were to be included in the Bill's definition of foreign state, this would satisfy Mr Maynier's concern.

Afternoon session

Protection of State Information Bill (the Bill): Working Document 11, prepared by State Law Advisors
Continuation of deliberations on espionage and hostile activities: clauses 32 and 33
The Chairperson summarised that Members were starting on page 62 of Working Document 11, and the number of years’ imprisonment was under discussion. Members had suggested that if the recipient of classified information was also to be sanctioned, both the receiver and the informant must each serve the same sentence.

Mr L Landers (ANC) thought that the new Working Document reflected what had been asked. It was inconceivable that a person who unlawfully communicated, delivered, or made available State information marked Top Secret should be punished, whilst the receiver of that information went unpunished.

Ms M Smuts (DA) noted that the DA was opposed to this provision, which was wide open to abuse, as already outlined by Mr Maynier. She asked Members to consider the wording of section 4(3)of the Canadian Security of Information Act. This stated that a person who received certain information would be guilty of an offence, unless he proved that the communication of the information was “contrary to his desire”. If the ANC persisted in its view that the hostile activity offence must be introduced, then defences and safeguards must be introduced. She stressed that the Canadian legislation was written for security and intelligence personnel, who should at least show that the receipt of information was unintentional, which would cover those on whom information was “planted”.

Mr D Maynier (DA) said that the Committee must look at the mischief, as this offence was intended to cover a foreign agent or person acting for a foreign agent. If that principle was agreed, then this only should be specified in the Bill. The current draft said something quite different, since, as presently worded, it would also penalise a person who received a document that may benefit another State, even if that person had no intention of actually giving that to the foreign state. There had to be a way of tightening up the provision.

Dr M Oriani-Ambrosini (IFP) said that, no matter what wording was finally adopted, the Bill must carry the notion that the receipt of the information should be done with the intention of bringing about the results provided for in the offence. In the case of espionage, this would be the intention to benefit a foreign state, and in the case of hostile activities, the intention to commit, aid or abet hostile activity. During the lunch-break, Members of the Committee had discussed who could conceivably receive such information, and it was clear that Parliamentarians could also be hit by this provision, as currently worded. He also asked what would happen if a document purported to reveal malfeasance, but actually did not. There should be specific intent mentioned here, since the receiving of documents without specific intent was already covered in the provisions dealing with disclosure.

Mr Landers said that clause 18 of the Bill provided that a person coming into possession of classified information should return it to the relevant authorities. This was clear. The receiver would have the privilege of being able to read it, but it should be returned. In response Ms Smuts’ comment on the Canadian example, he pointed out that the person receiving the information had to prove the points to the Court. The example provided by Dr Oriani-Ambrosini was a strange one, but here too, a person receiving such a document would have to convince the Court of his intent.

The Chairperson asked Members to consider the principles. The offence of espionage, as currently drafted, reflected that a person would be guilty of espionage if s/he gathered information and passed it on to a foreign person. The intention to do so was clearly present at the time of gathering the information, even before that person actually handed the documents over to the receiver. The question was whether the receiver was also guilty of the offence. That did not seem to be covered in the current wording of the Bill. The proposal was to criminalise the action of the receiver in these same circumstances. A similar crime was being committed by giver and receiver of information. If there was general agreement that both should be punished, then Members must look at whether the Bill properly captured their intentions. If the offence was substantially similar for both giver and recipient, then the penalties should, logically, be the same. He suggested that there was then only a need to adjust the wording relating to the carrier of information, to include also the receiver of that same information.

Dr Oriani-Ambrosini said that the Chairperson had outlined a different set of considerations. He stressed that this was not limited to documents, but “information”, which may not be contained in a document. Clause 18 applied to documents. If the Committee wanted to make receipt a crime, then it must be construed with the same physical and psychological elements, and not cover mere receipt.

Mr Landers reminded Dr Oriani-Ambrosini that clause 18 did recognise that information need not be in a documentary form, because it referred to a duty to “report”.

Mr Maynier agreed with Dr Oriani-Ambrosini’s comment on intent. A person would be found guilty of espionage if he, unlawfully, and with intent to benefit a foreign state, made available classified information. On the other hand, as presently worded, the receiver could be found guilty even if s/he did not have the intention to benefit a foreign state.

Mr S Swart (ACDP) clarified that the Committee wanted to criminalise a financial reward being offered to elicit classified information, in order to benefit a foreign state. He agreed that a recipient seeking to benefit another country had to be punished. The wording had to be tightened to reflect the fact that the receipt benefited a foreign state. The words “ought reasonably to have known” introduced an objective test by the Court. This clause was attempting to create an offence separate from the offence of possession, since mere receipt was an offence, even if the person receiving it returned the information to the South African Police Service (SAPS). It was necessary to tighten that provision around intent, so that the clause did refer specifically to people who received classified information, with the intention to benefit a foreign state.

Mr B Fihla (ANC) took the point, but said that many people who received a Top Secret document, but realised that this was incorrect, would simply return it. He agreed that a person receiving a classified document intentionally, because he had paid to do so, should be sentenced in the same way as the provider of that document. He also agreed that there was a need to tighten the wording to ensure that there was no abuse. However, he also stressed that a person should not be able to plead ignorance of the law as an excuse.

Ms Smuts said that the 2008 version of the Bill did in fact reflect what Members wanted. It had criminalised the circumstances set out by Members, and referred also to the intention to give “an advantage” to another State. In the 2010 version of the Bill, the wording around “intent” was removed, and instead the expression “information that the person knows or ought reasonably to have known or suspected” was inserted. She agreed with Mr Swart that the phrase relating to “ought to have known” should be removed.

Mr Landers said that the ANC would look at that suggestion. Mr Fihla had correctly made the point that Members needed to look at where the intent should lie.

The Chairperson summarised that Members agreed that a receiver of classified information must be sanctioned in the same way as a provider of classified information. He asked the State Law Advisors to ensure that the wording captured that intention. Members further had agreed on the sentencing. He pointed out that the 2008 version of the Bill would need to be amended, to capture the three categories of classified information separately. The mens rea (intention) wording should be moved so it captured the benefit to a “foreign state”. He noted that Members had made a decision earlier in the day to use the words “foreign state” instead of “another state”.

Ms Smuts confirmed that the 2008 version of the Bill had been correct in its wording on intent, but the tiers now agreed upon were not captured, as it had referred merely to “state information”.

Clause 33
The Chairperson asked the State Law Advisors to deal with the other aspects of the hostile activity offence in clause 33, as reflected on pages 63 to 65. He noted that “hostile activity” was not an unknown concept.

Mr Maynier reiterated the DA’s position that “hostile activity” was too broadly framed, although the Members had agreed that it would be extended to activities that benefited non-state actors. He suggested that it was possible to capture this in two ways. Firstly, the offence dealing with hostile activity (clause 33) could be deleted, and the principles could be captured under espionage (clause 32). Alternatively, it was possible to retain a separate hostile activity offence, but this needed to be tightly and narrowly drafted. He suggested that the words “directly or indirectly prejudicing the State” should be deleted, and that “a non-state actor engaged in hostile activities” should be inserted. Both non-state actors and hostile activity were defined already in clause 1. The elements of that offence would then be unlawful disclosure of classified information, with the intention to benefit a non-state actor engaged in hostile activity.

Dr Oriani-Ambrosini felt that there was a need to maintain a tighter focus. Building on Mr Maynier’s comments, he noted that hostile activity should not be defined as conduct that “prejudiced the State” but as conduct “aimed at committing, aiding or abetting a hostile activity”. This definition would raise the crime to a threshold higher than the mere disclosure. He repeated his observation that mere disclosure of classified activity would always prejudice the state.

Mr Maynier said he would still argue for adoption of the DA’s position, which focused on who would receive a benefit, and said this should be reflected as “a non-state actor engaged in hostile activity”. There was a weakness in the IFP formulation, since, although it was unlikely that, for instance, News 24 could properly be construed as a non state actor engaged in hostile activity, it might be possible for a prosecutor to argue that a journalist from News 24 was engaged in that activity. He submitted that his option was safer.

Mr Swart said that both suggestions covered the problem that hostile activity was not properly defined in that clause. All parties seemed to agree on the need for the offence. Earlier in the meeting, he had argued for insertion of phrases such as “aimed at” or “promoting” hostile activity, because it was not disclosure itself that amounted to the hostile activity. He asked that both the DA and IFP should put their submissions in writing. It was not merely the disclosure of the document, but something more, which needed to be captured.

Mr Maynier thought that once the Committee was clear on the mischief (which was the concern that classified information may be disclosed to non state actors engaged in hostile activity, such as Al Qaeda) then there was a need to legislate for that. The concerns of the security services would be covered if the Bill criminalised disclosure of classified information to a non-State actor engaged in hostile activity.

Mr Landers cautioned that the Committee should not ignore direct or indirect prejudice to the republic. The loophole should not be allowed that the disclosure may be regarded as legal if the non-state actor was not engaged in hostile activity.

Dr Oriani-Ambrosini raised two points. The definition of non-state actors included everyone but the foreign state. For purposes of this crime, it did not matter who did or received the information. The intention was far more important and that was why the words “in order to commit a hostile activity” were needed. On reconsideration, he thought that a reference to “aiding and abetting” might be too wide. However, wording such as “a disclosure which is tantamount to hostile activity” would cover the mischief to be sanctioned. Even if the disclosure did not amount to a hostile offence, it would still be an unlawful disclosure, which would be punished under other clauses. By definition, a hostile activity must be one that would directly prejudice the Republic.

The Chairperson summarised that Members were clearly agreed on the need for the offence. He asked, and received confirmation from Members, that the offence should be structured in a similar way to the espionage offence, so that it reflected the three categories of Top Secret, Secret and Confidential information. He asked Members to discuss appropriate sentences.

Mr Landers said that the minimum sentence should not apply. Members seemed to agree that this was a slightly less serious offence than espionage. He suggested that a maximum sentence only should be stated for each of the three categories, and, although he had originally been inclined to a higher sanction, he noted the suggestions of his colleagues that a 20-year penalty should apply to disclosure of Top Secret information. This was an offence that spoke of “prejudice to the State”.

Mr Maynier was reluctant to discuss the sentence before the definition of the crime had been settled.

Mr Landers said that the ANC had already conceded that a twenty year sentence would be appropriate.

Mr Maynier said that if the offence was speaking to criminalisation of classified information with intention to benefit a non-state actor engaged in hostile activities, then he would agree that this was a serious action deserving of severe penalties. However, if it was to be regarded as a “hostile activity” for the Mail & Guardian to publish a story that “prejudiced” the government by embarrassing it, then that was another matter.

Dr Oriani-Ambrosini asked Mr Landers to respond to his point that every unlawful disclosure of classified information already amounted to “prejudice to the state”. Information could only be properly classified in order to prevent demonstrable harm that would result from its publication. The mere disclosure would therefore result in prejudice. If that was all that was covered, then the hostile activity and disclosure offences would be identical. If a separate offence of hostile activity was to be created, it had to be linked to other activities of sabotage, terrorism and similar acts. All those crimes would be punished separately, so effectively the sanction in this clause must be one that was appropriate to an accessory to the crimes, and should not attempt to sanction the crimes themselves.

Mr Swart suggested that, for the moment, a maximum penalty of twenty years should be inserted, but that Members should revisit this once they had finalised the wording for the offence itself. Dr Oriani-Ambrosini had made a very important point. He had originally assumed that the hostile activity offence was equated to sabotage, but Dr Oriani-Ambrosini made a valid point that it was in fact the unlawful communication that was harming the state. Once this had been properly defined, Members could, if they agreed that the offence should carry the same penalties as espionage, look at the sanction again.

Ms Smuts said that criminalisation of terrorism was dealt with in other statutes, whereas this Bill dealt with communication of information. The important aspect was the intentional contribution to hostile activity by a non–state actor. She agreed that the final penalty when the formulation of the offence was concluded. Intention to contribute to hostile activity must be reflected. She thought that the idea of prejudicing the state had no place in such a provision.

Mr Maynier said that the definition of “non-state actor” was quite broad, but hostile activity would apply only to those “engaged in hostile activity” (which was separately defined, including references to aggression, sabotage and terrorism). If the DA’s suggestions were followed, this would possibly satisfy both the concerns of the Department of State Security, and the criticisms from civil society, who was concerned about the overly-broad definition of hostile activity.

The Chairperson summarised that the State Law Advisors would need to capture the three categories of information in the offence. The DA and IFP were asked to provide their written proposals to the State Law Advisors. He noted that the reference to minimum sentences must be removed, that the reference to “twenty five years” should be replaced with “twenty years”, in respect of Top Secret information. He also asked that the other “proposals” currently reflected in the Working Document should be left out. This meant that page 62 of the Working Document, which currently set out the proposal for clause 32(5) of the espionage offence, should be included, without the heading “proposal”. The hostile activity offence was set out from page 63, but everything from the heading “Proposal” on page 64, to the top of page 70 should be deleted.

Ms Carin Booyse, Deputy Chief State Law Advisor, Office of the Chief State Law Advisor, noted that the offence for the receiver of information was set out on page 64.

Clause 41: Comparison of National Archives and Records Services Act (Archives Act)
Ms Booyse noted that she had been asked to compare clause 41 of the Bill with the comparative provision in the National Archives and Records Services of South Africa Act (the Archives Act). She circulated a short document, entitled “Clause 41” that set out the provisions in each piece of legislation. The Bill provided for a fine or to imprisonment not exceeding three years, where “valuable information” was “destroyed or altered”, except where this was done for a purpose for and in a manner authorised by law”. Section 16(1) of the Archives Act, on the other hand, referred to a person who either “wilfully damages any public or non-public record in the control of a governmental body”, or “removes, destroys or erases such record”, and the exception was worded as “otherwise in accordance with this Act or any other law”. This Act provided for a sanction of two years, or a fine, or both. There were definitions of a “public record” and a “non-public” record. She noted that this Bill dealt with “valuable information” as opposed to a “record”. She also pointed out that the Archives Act was promulgated in 1996, when sanctions might have been lower.

Dr Oriani-Ambrosini thought that the language used in clause 41 needed to be amended, as it referred both to “unlawful” and to “except by law”, which conveyed the concept of unlawfulness. He preferred the use of the word “wilful” in the Archives Act. This meant the intentional commission of the offence, plus the intention to bring the consequences.

Mr Landers suggested that more appropriate wording could be: “Any person who intentionally and unlawfully damages, destroys or erases valuable information, otherwise that in accordance with this Act, is guilty of an offence and liable on conviction…” He also suggested that the words “or to both such fine and imprisonment” could be added at the end of the clause.

The Chairperson agreed that there was a need to include the concept of “intentionally”, for the sake of consistency.

Dr Oriani-Ambrosini said that Senior Counsel had provided an opinion that “wilfully” and “intentionally” carried different meanings.

The Chairperson reminded him that this point had been debated fully earlier on in the day. Both words referred to the mens rea behind the offence, and Mr Swart had confirmed that the courts currently did not see that there was a difference between them. Members had decided that the word “intentionally” would be used.

Mr Maynier wondered if this penalty should not merely be aligned to the two years provided for in the Archives Act.

Mr Landers said that this penalty was fixed fifteen years ago, and this was only increasing the penalty by one year.

Mr Maynier did not accept the argument of the time period.

Mr Landers reminded him that this was not disclosure, but damage, destruction or erasure. In any event, the discretion on the appropriate sanction remained with the Court.

Dr Oriani-Ambrosini said that whilst this was so, the Court would always take into account the maximum period stated when assessing how serious a sanction must be imposed. He had often expressed his view that South African correctional centres were “a disaster”, with many inmates being held in circumstances that were contrary to their constitutional rights. Members should be mindful of that fact before passing legislation that provided for the sanction of imprisonment. There was no reason for this offence to be sanctioned more harshly than other.

The Chairperson said that Members would have to consider whether the offences created by this Bill, and the Archives Act, were the same. If so, then proportionate and comparable considerations must apply.

Dr Oriani-Ambrosini said that a person could not be convicted for the same conduct under two different statutes, so two different provisions should therefore not apply. If there was no substantial difference in the two crimes, then he suggested that the Bill should read, “liable on conviction to be punished in terms of the National Archives and Records Services of South Africa Act”.

The Chairperson said that he saw no problem if both laws subsisted, as the prosecutor could choose to prosecute a person under either the Bill, or the Archives Act, as appropriate.

Ms Booyse summarised that the main difference in the two pieces of legislation lay in the fact that the Bill dealt with “valuable information”, while the Archives Act dealt with “records” A public record was defined as one created by or received by a government body, whilst a non-public record was one created by a non-governmental body, in pursuance of activities either under the Archives Act or a provincial law. “Valuable information” had been defined in this Bill as “information whose unlawful alteration, destruction or loss is likely to deny the public or individuals a benefit or service to which they are entitled.” The documents could be different, and the charge sheet would determine which piece of legislation was appropriate.

Ms Smuts suggested that it was also necessary to look back at clause 35, which related to modification of computer contents and similar matters. Although the heading referred to “classified information” it was in fact only subclauses (1) and (2) that dealt with classified information. Those clauses carried maximum penalties. Clause 35(1) dealt with intentional interception of classified information, with a ten year period of imprisonment, and clause 35(2) dealt with intentional interference with classified information, also carrying a ten-year term of imprisonment. Clauses 35(3) and (4) dealt with “state information” (which could mean anything), and ten year penalties were provided for. Clause 35(5) carried a similar penalty, for denial of “service classified or state information” whilst clause 35(6) provided for a two-year period of imprisonment for a person getting unauthorised access to information, and 35(6)(d) set out a five-year term. Essentially, clause 35 was similar to the offences set out in clause 41, relating to electronic information. To the extent that these subclauses also may deal with alteration and destruction, they should also be brought in alignment with clause 41.

Mr Landers read out another proposal for the clause as follows: “Any person who intentionally destroys, removes, alters, or erases valuable information, otherwise than in terms of this Act, is guilty of an offence and liable, on conviction, to a fine or imprisonment not exceeding (term to be inserted) or to both such fine and imprisonment”.

Mr Maynier said that he proposed a term of imprisonment of two years.

Mr Landers stressed that this was dealing with valuable information.

The Chairperson was of the view that the higher penalty, of three years, was acceptable, stating that it was discretionary. Putting in a higher sanction would give more emphasis to the legislature’s aim to create a more honest, focused and better public service, and to sanction divergence from this aim more seriously.

Ms Booyse noted that there seemed to be a contradiction, since the Bill was providing for protection of valuable information from alteration, and suggested that the words “otherwise than in accordance with this Act” should be removed.

The Chairperson asked the State Law Advisors, in a separate document, to comment on and compare the offences and penalties set out in clause 35 that related to non-classified information, with the offences set out in clause 41.

Ms Smuts asked that the State Law Advisors should also check the Electronic Communications and Transactions Act, since if comparable offences were listed there, then the Bill did not need to repeat this, and would need only to reflect the offences that related to classified information.

Dr Oriani-Ambrosini wished to formally record his view that it was not possible to provide two different statutory provisions, in clause 41 of the Bill and section 16(1) of the Archives Act, for what appeared to be substantially the same offence.

Clause 40
Dr Oriani-Ambrosini said that, although the State Law Advisors had not dealt with this clause, he had noted an inconsistency. He said that this clause, currently reading “any person who provides information”, should be amended to read “any person who provides intelligence information”. As it read currently, a person providing any type of incorrect information to a police officer would be sanctioned, and this was clearly not the intention of the Bill.

The Chairperson asked the State Law Advisors to look into that aspect. He commented that he was not sure that “intelligence” and “information” should appear next to each other. It would be necessary to look at the definitions of each.

Clause 42
The State Law Advisors then asked Members to turn to pages 76 and 77 of Working Document 11.

Mr Sisa Makabeni, State Law Advisor, Office of the Chief State Law Advisor, noted that the State Law Advisors, had, as requested, looked into penalties provided under the Prevention of Corruption Act (POCA). Here, penalties were graded, depending on the forum in which the matter was tried. The maximum sentences ranged from life imprisonment (in a High Court matter) to eighteen years (Regional Court matter) to five years (Magistrate’s Court matter). However, the offences there were not exactly comparable to those set out in clause 42 of this Bill.

Mr Makabeni added that the Criminal Law Amendment Act of 1997 also set out penalties for fraud. Section 51 set out minimum sentences. Similar to POCA, there was a range of sanctions, which related to fraud involving R500 000 or more, R100 000 or more, and R10 000 or more. The sentences were also graded according to whether the offender was a first offender (not less than 15 years imprisonment), a second offender (not less than twenty years imprisonment) or a third offender (not less than 25 years imprisonment). He stressed that in relation to this Act, it was also not possible to draw a direct comparison. The Committee would therefore need to make its own decision on appropriate penalties.

Mr Makabeni then said, reading from a document handed out on the previous Friday, that the State Law Advisors proposed the redrafting of clause 42. The word “knowingly” should be replaced with “intentionally”. The clause would then read along the lines of “42 (1) A person who intentionally classified information as:
(a) Top Secret
(b)Secret, or
(c) confidential
in order to achieve a purpose ulterior to this Act, including the classification of information in order to…” followed by the current (a) to (d) in the Bill. A new subclause should then also be added, to reflect that in the event of intentional improper classification of Top Secret information, a person who was convicted would be liable to a fine, or to imprisonment for a period not exceeding (relevant period to be inserted), and similar separate penalties should be provided for Secret, or Confidential improper classifications.

Mr Swart noted that it would be necessary to increase the current penalty of “not exceeding three years”, so that this was a sliding scale, according to the category of improper classification. This would be in line with the aim of ensuring that the Bill should not be used to conceal fraudulent classification. He agreed that the hierarchy should be reflected by separately listing Top Secret, Secret and Confidential categories. He suggested that a maximum period of 15 years imprisonment for improper classification as Top Secret, 10 years for improper classification as Secret, and 5 years for improper classification as Confidential. He reminded Members that the penalties for the hostile activities offence in these three categories was suggested as 20 years maximum, while espionage carried a top penalty of 25 years. This was a less severe, but still serious offence.

Mr Landers said that on the basis of the earlier input, he agreed with Mr Swart’s suggestions for categories set out in the proposed new subclause 42(2).

The Chairperson asked the State Law Advisors to effect that amendment.

Clause 48
Ms Booyse alerted Members to the changes effected to clauses 48(3), (4) and (5) and the alternatives. She summarised that the first proposal for clause 48(3) required the Minister to consult the Minister of Arts and Culture, before making regulations in terms of clause 48(1), and to publish the regulations for comment. The alternative wording empowered the Minister, after consultation with the Minister for Arts and Culture, to make regulations regarding the protection, transfer, destruction or alteration of valuable information and to publish the draft regulations for public comment.

Members agreed that the second alternative was preferable.

Ms Booyse then summarised that the first option for clause 48(4) required that any regulation made under this section must be tabled in Parliament for approval before publication in the Gazette. The second option was that any draft regulation must be tabled in Parliament for approval, at least 30 days before the regulations were promulgated.

Members agreed with the formulation of the second option.

Ms Booyse summarised that clause 48(5) said that any regulations made may prescribe penalties of a fine, or imprisonment, for a period not exceeding three years for contraventions or failure to comply.

Ms Smuts said that this correctly reflected that the regulations had to be approved by Parliament.

The State Law Advisors were asked to effect the necessary changes.

Clause 49
Ms Booyse directed Members to clause 49, on pages 84 to 85, clause 49, and handed out another document, headed “Clause 49”. She pointed out that the word “reasonable” was to be inserted in clause 49, to bring it in line with the reference to “reasonable” time for the making of regulations in clause 48.

In relation to Members’ requests to formulate a proposal in respect of the savings, the State Law Advisors had, as set out in this document, originally suggested that “any information classified under previous classification legislation, or any other law, remains in force until the commencement of this Act”. However, following discussions earlier in the morning session, this wording would now be revised.

Ms Booyse also reminded Members of the concerns expressed by Mr Landers, to the effect that the Bill should reflect, in terms, what should happen to classified information once it had been reviewed and reported upon. She read out the revised proposals for clauses 49(3) and (4), as follows:

”(3) In conducting a review in terms of section 49(2), the relevant head of the organ of state concerned or the Agency as the case may be, must apply the conditions for classification and declassification in section 17 to -
(a) declassify the classified information; or
(b) reclassify the classified information”

(4)The head of the organ of state concerned, or the Agency, as the case may be, must in accordance with section 26 transfer the declassified information contemplated in subsection (3)(b) to the relevant archive”.

This wording would cater in terms for what must happen to information that was classified under the Minimum Information Security Standards (MISS) and set out the specific obligations of the Agency.

Mr Landers was satisfied that this new clause answered his concerns and reflected Members’ intentions.

Dr Oriani-Ambrosini wondered if it was not necessary to add another subclause 49(3)(c) stating “or to confirm the classification of the classified information”.

Mr Landers said that he thought that this would be covered under “reclassify”.

Ms Smuts suggested that “reclassify” suggested downgrading.

Mr Swart raised another concern, stating that although he agreed that clause 49(1) now correctly reflected the intention of Members, the use of “whichever occurs first” was usually used only when specific time periods and not “a reasonable period” were set out. He also asked Members to check whether the new subclause (2) was consistent in language with other transitional provisions.

Ms Booyse reminded Mr Swart that what was listed under “A” in the document just handed out would be changed, in line with discussions earlier in the day.

The Chairperson said that the reference to “a reasonable time” had been inserted, following Dr Oriani-Ambrosini’s request to bring clauses 48 and 49 in line with each other.

Mr Swart said that this was different from the formulation used in other legislation, but not much turned on it.

Members asked the State Law Advisors to incorporate the changes now agreed into the new consolidated version of the Bill.

Additional points raised by Members in relation to the Working Draft
Effect of Erroneous classification
Dr Oriani-Ambrosini wanted to raise a point about the effects of erroneous classification, although he was not sure where it would correctly fall in the Bill.

He made a submission that nobody should be convicted of an offence relating to unlawful dealing with classified information, if that classification was in itself erroneous. He therefore proposed that wording as to an exculpatory offence of erroneous classification must be inserted somewhere in the Bill, along the lines of “no person may be convicted of an offence if the relevant information was erroneously classified”.

Mr Makabeni asked Dr Oriani-Ambrosini if the consistent use of “intentional”, in relation to all offences, would not cover this concern.

Dr Oriani-Ambrosini responded that this was not quite the same. A person who was accused of disclosing classified information should be able to raise, as a defence, the fact that the information was erroneously classified. Whether or not there was any intention to disclose, or good faith, the defence should be available.

The Chairperson thought that if a person was charged, this could be raised as a defence already.

Mr Landers added that a person could approach the classifying authority in order to raise the very point about erroneous classification, and request the authority to have that information declassified. He also did not think that this needed to be provided for specifically in the Bill.

Dr Oriani-Ambrosini agreed that a person could ask for reclassification of information, but said that if that request had not been made, and the person was charged with disclosure, the defence should apply. He cited the example of a document that might have been classified (wrongfully) to ensure that its contents disclosing corrupt activities remained hidden. A person could be charged with possession of that “classified” document, although in fact it should never have been classified. He did not think that this was the intention of Members. He reiterated that an exculpatory defence should be able to be raised, to the effect that the document was improperly classified.

The Chairperson said that a person charged could ask for particulars of the charge, and it was likely that the issues would be sorted out before the matter reached the court. However, he asked Members to think about this, and said that the proposal would be discussed at a later stage.

Clause 46: insertion of additional wording: Proposal by Dr Oriani-Ambrosini
Dr Oriani-Ambrosini wanted to raise another point in relation to clause 46(6). This provided that a classification authority, in consultation with the Minister, must declassify information required in legal proceedings, either in whole or in part, unless “it is strictly necessary to maintain the classification in terms of this Act”. He said that this test amounted to a consideration of whether the State was more important than the individual. Firstly, he thought that the words “legal proceedings” should be clarified as “criminal proceedings”. Secondly, he thought that the proviso “unless it is strictly necessary to maintain the classification in terms of this Act” should be deleted. He asked Members to give this proposal the consideration that it deserved. He had thought that the State Law Advisors had been asked to look into that, but they had not reported back.

The Chairperson did not recall giving a specific instruction to the State Law Advisors on that point, although there had been some discussion as to whether they could look into the matter.

Ms Smuts stated that she did not have any particular recollection of such a request. However, she wished to raise another point, in relation to clause 46. She said that she had made the point that Dr Dario Milo’s proposed wording for this clause had been presented to the Committee, and she wondered if Members could consider whether this was a possible alternative to what was reflected in the present Working Draft. She thanked the Chairperson for providing Members with copies of sections 154 of the Criminal Procedure Act and confirmed that this section did not appear to conflict with what was set out in clause 46(7) of the Bill. Section 153 of the Criminal Procedure Act seemed to draw its wording almost directly from considerations about the “security of the state”.

The Chairperson asked Members to consider the wording put forward by Dr Milo and formulate a specific proposal for consideration by the Committee.

IFP Proposal for a Public domain defence:
Dr Oriani-Ambrosini was invited to address the Committee on his proposal for inclusion, in the Bill of a Public Domain defence. He asked Members to give their full and unbiased consideration to his proposal.

Dr Oriani-Ambrosini stressed that the public domain defence was different from the public interest defence. A public interest defence would provide a defence to a person who would, under normal circumstances, be found guilty of an offence of disclosure, if it was in the public interest to disclose the information. A public domain defence implied that information that had already come into the public domain should be able to be divulged further, without attracting any criminal sanctions. He cited a hypothetical example that Denel might classify information that unfavourably compared South African missiles and Brazilian missiles. Brazil could then obtain, and publish this information on the internet. A person coming into possession of (or reading) that published internet information should not be charged with possession of the information, because it had already come into the public domain. Initially, when commercial secrets were still covered by the original Bill, there had been provision for a public domain defence. He submitted that it should be reinserted, in respect of any information. He noted that once something had “fallen outside” its “secret” status, it should not be regarded as a secret any longer. Possession of information about such “secrets” should not be sanctioned. He was speaking not of documents, but information in people’s minds, and once something was known to anyone else, it must be regarded as in the public domain.

Dr Oriani-Ambrosini stressed that there was generally a whole chain of events when information reached the public domain. Everyone would agree that a person reading information in the newspaper could not be charged with an offence. However, the question then arose whether the printers, editors, journalists, typists or anyone involved in the process of that information should be guilty of an offence up to the time the newspapers reached the public, and it was not logical, in his view, to state that they were. Once something was accessible and accessed by people who had no obligation to keep that information secret, no further disclosure of that information should constitute any basis for criminal sanctions.

Dr Oriani-Ambrosini said that it was necessary to insert a provision in the Bill, to avoid a range of unintended consequences. He stressed again that this was different from the public interest defence. He proposed that the following wording be used: “Any information which falls within the public domain or is disclosed in a manner which can make such information accessible by persons other than those authorised to access it, shall be deemed no longer classified, save in respect of the person who first causes such information to be disclosed”.

He added that once something was in the public domain, it must be regarded as accessible and could not be classified again. If the information, in his earlier hypothetical example, was published in Brazil, then it must also be able to be published in South Africa, even if Denel wanted to keep it secret.

He submitted that his proposal would bring the legislative text closer to the legislative intention.

The Chairperson said that this was a double-edged sword and there were counter-arguments that could be raised, but it did pose several issues for discussion. He asked all Members to look at this proposal over the weekend and be prepared to comment on it. He asked Dr Oriani-Ambrosini if it was possible to “own” the information.

Dr Oriani-Ambrosini said that it was not ownership, but accessibility, that was important. If the information was accessible by those who were not entitled to access it lawfully, then it should be regarded as beyond classification and out in the public domain. He stressed that this provision had been included initially, in relation to commercial information, and by the same rationale it should be able to apply to other information, although commercial information was now removed from the Bill. He stressed that this would not relate to documents, but information, accessed from any source. In answer to the Chairperson’s direct question, he thought that information, like anything else, could be owned, but the owner was not necessarily the only entity that could access that information, as this would be determined by the regulations.

Ms Smuts said that this point was too important to dispose of at this meeting. She asked Dr Oriani-Ambrosini whether the points he had made differed from the legal position currently, and for comment on Judge Moseneke’s statements in the Masetla trial.

Dr Oriani-Ambrosini said that the present legal position was not quite clear. If the Bill were passed without the clause he had suggested, people would be able to be prosecuted for knowledge about things that were in the public domain. In regard to the constitutionality of what had been said by the Court, he would not like to comment, because different conclusions would be reached in different cases. However, in adherence to his oath of office as a Member of Parliament, he wanted to ensure that the Bill finally passed was not unconstitutional, and would like to think that any mistakes would be fixed by the Constitutional Court. Beyond questions of constitutionality, there was also consideration of what was right and wrong. He would not like to see anyone convicted on a formalistic basis of possession of “secret” information, once the secret was already out. The intention must be clear.

Mr Swart supported the arguments raised by Dr Oriani-Ambrosini. The public domain issues were already addressed in the Protection of Information Act (PAIA) – in sections 34, 36 and 37 and it was possible that the commercial information had been excluded now from the Bill because it was catered for under PAIA. In the circumstances set out in these clauses, an information officer must refuse access, except where the information was already publicly available. It was important to bear this in mind.

Ms Smuts commented that she did not agree with Judge Moseneke’s comment that a classified document should not lose its classification, just because it had been released into the public domain.

Mr Landers commented that this was probably binding.

Ms Smuts suggested that it should be established to what extent this statement was in fact binding. She agreed that a public domain defence should be included.

The Chairperson reminded Members that Mr Dlomo, Advisor to the Ministry of State Security, had been asked to look into issues of public domain, and different jurisdictions deal with this in different ways. Some did allow for a public domain defence but others did not, saying that the fact that something might be in the public domain did not, ipso facto, result in declassification. This Bill said that information could not be declassified until the relevant person had attended to that specifically, or where other circumstances applied. However, he agreed that this was a discussion that would be held over until another day.

Future meetings
Mr B Fihla asked if Members would agree to not having meetings on Monday and Tuesday, to allow those who lived some distance from Cape Town to have a full long weekend.

All other Members supported the request, after discussion.

Mr Landers made the point that he had asked the drafters to put together a “clean” version of the Bill. This would illustrate to Members that the Committee had gone quite far in its substantive and important work on the Bill. Perhaps the extent of the Committee’s work and achievements had not always been communicated adequately to colleagues, and to the public. He asked that the Committee should consider continuing to hold evening sessions, and possibly also full-day sessions on a Friday.

Ms Smuts agreed with the comments on the progress made, and said it would also be useful for the Committee to stress, where it had not concluded its discussions on clauses, that the matters were in fact still under consideration and that there was ongoing progress. She agreed also that the State Law Advisors needed adequate time to produce the “clean” document. Members also needed a chance to consult with their colleagues.

The Chairperson ruled that the meeting scheduled for the following day would be postponed, as it would in any event have had to start late to accommodate some Members, and finish early, to accommodate the travelling needs of others. The meeting would resume on the following Wednesday afternoon, 10 August, after the Justice Portfolio Committee had met, and would continue on 11 August, although he would not be able to attend on 12 August.

The meeting was adjourned.