Protection of State Information Bill: informal vote on Working Document 27

Meeting report

Protection of State Information Bill:
Procedure
The Chairperson noted that he had taken an opinion on the way forward with the process on the Protection of State Information Bill (the Bill). Because of the extensive amendments made to this Bill, it would not be appropriate for this Committee to proceed as most Committees did, merely working with the ‘A’ version of the Bill. He had been advised that the Committee should instead consider each clause as set out in the “Clean” Working Document 27, which was essentially the ‘B’ version of the Bill.

Mr Albert Mamabolo, Head: Committee Section, Parliament, noted that the Rules of the National Assembly allowed a Committee, when considering a Bill, either to submit, with its Report, an amended Bill, or alternatively to submit a redrafted Bill, in terms of Rule 2.5.1 of the National Assembly Rules.

He added that Rule 2.5.1(3)(b) stated that a Committee, in its Report, must state whether it recommended approval of the Bill, with or without amendments. This was the procedure followed for most Bills. A Committee would, however, present a redraft when the original Bill had been substantially amended, because then it was not necessary to provide a list of amendments. happened with most Bills). Normally, when a Committee presented a redraft, where the original Bill was amended extensively, it was not necessary to submit the list of amendments and specify whether each had been accepted or rejected by the Committee. In this latter case, the Committee would simply say in its Report that, having considered the original Bill, it now wished to present a redraft. The items, principles considered and note of which clauses were accepted or rejected, perhaps with reasons, would then be set out.

The Chairperson asked if a redrafted Bill could still be amended, if there were errors found.

Mr Mamabolo said that if the Bill was still before the Committee, the Committee could do anything it wanted with that Bill, right up to the time it had been approved by the House.

Prof G Ndabandaba (ANC) asked how far the “freedom” of the Committee extended in dealing with the Bill.

Mr Mamabolo responded that the only limitations would be those prescribed by the Constitution.

Dr M Oriani-Ambrosini said that Rule 2.4.9 required that if the Bill had changed “substantially” it might be necessary to have a second round of public hearings.

Mr Mamabolo said that this call would have to be made by the Committee itself. The Rules did not prescribe whether this was a requirement.

Mr L Landers (ANC) moved, formally, that the Committee should work from and base all its future decisions upon the redrafted Bill. He noted that the “Clean Working Document” would suffice for that purpose.

That motion was carried unanimously.

Mr S Swart (ACDP) asked at what stage the Committee would look at the Memorandum on the Objects of the Bill. Although it was not strictly part of the Bill, there had been substantial changes that warranted changes also to this portion of the Bill.

Mr D Maynier (DA) said that the Memorandum on the Objects of the original Bill indicated that the Bill would carry no financial implications for the State. Now that the Classification Review Panel had been added, there clearly would be new financial obligations. He also wanted to know at what stage these obligations would be considered.

The Chairperson suggested that the Members should first continue with their deliberations on the Bill, and should then move on to consider these matters.

New Working Document 27
Ms Carin Booyse, Deputy Chief State Law Advisor, Office of the Chief State Law Advisor, took the Committee through the amendments agreed to, and now incorporated into, the Working Document 27. She noted that this still contained the deletions and insertions, whereas the “Clean Working Document 27” set out only the text that was finalised during previous deliberations.

In the Preamble, she noted that there would have to be a minor change, and this would be incorporated into the Bill produced by the printers. It was normal drafting style to put the first word of each paragraph in bold and capital letters, and this would be done.

She noted the insertion of subclause 1(4), in the version preferred by the majority of Members at the last meeting.

The Chairperson noted that the inclusion of the reference to section 5 of the Promotion of Access to Information Act (PAIA) had not yet been agreed to, and this was to be dealt with when the Committee went through the clause by clause process.

Ms Booyse noted the substitution of the expression “30 days” for the previous 90 days that would be allowed to the Minister to make a decision, in clause 31(3). In clause 36, the words “and intentionally” were inserted into subclauses (1)(b), (2)(b) and (3)(b). A similar insertion was made in subclauses (1)(b), (2)(b) and (3(a) and (b) on page 73. Changes were also reflected to clauses 40(4) and clause 43. In clause 45, the option of a fine was inserted.

Mr Swart said that when the final draft was sent to the printers, the State Law Advisors should ensure that the phrase “unlawfully and intentionally” was reflected in a consistent way, as in some clauses the order of those words was interchanged. It made no difference to the meaning, but from a stylistic viewpoint, consistency should be maintained.

Ms Booyse agreed that the necessary adjustments would be made.

Ms Booyse continued that clause 47 now referred to “intentionally” rather than the previous word “knowingly”. In clause 47(2)(a) and (b) and (c) the words “to a fine or” had been removed. The heading of clause 48 had been amended to reflect “or official of organ of state” and the relevant wording relating to an official had also been inserted. In clause 49, the word “state” had been replaced with “classified”, with similar amendments also in subclauses (a) to (d) of that clause. The word “intentionally” had also been inserted into clause 49(a) and (b). There was finally a correction, for consistency, of a reference to “national security”.

Ms Smuts asked whether, as a final gesture, the ANC would be prepared to concede that this clause should be stated to apply only to the State Security Agency. This suggestion did not find favour with the ANC.

Ms Booyse said that what was contained on page 90 was essentially a definition within a clause, and, in line with usual drafting style, she noted that the word “a” should be removed. She finally noted that the previous clause 54(1)(l) had been deleted, and the remainder of the subclauses renumbered.

Clean Working Document 27
Ms Booyse noted that the “Clean Working Document 27” contained only the final wording of those proposals and amendments agreed to by the Committee during its previous meetings, taken across from the Working Document. No additions or deletions were shown in the “Clean Working Document”. The only exception to this was the highlighted portion of the Objects clause, on which a decision must still finally be taken.

The Chairperson asked whether the parties’ counter-proposals to this clause could be found anywhere else.

Dr Oriani-Ambrosini said that he had requested the opportunity to caucus with the remainder of his party. He thought it would be unfair to expect Members to vote on this document now. He found it difficult to move straight from the negotiating process to a voting procedure, without the opportunity for consultation.

Mr Landers had some sympathy for this position and proposed that a short break – say of ten minutes - be allowed.

Dr Oriani-Ambrosini noted that it was impossible for him to consult with his party in ten minutes. Whilst he appreciated the sentiments and the gesture, it was not sufficient.

Mr Landers said that, on the previous day, Dr Oriani-Ambrosini indicated that he needed some time to “read the document”. Now it seemed apparent that he actually had needed time to consult, although this had not specifically been indicated.

Dr Oriani-Ambrosini said that he had said this on the previous day.

Mr M Nchabaleng (ANC) said that this document was the product of lengthy hours and considerable opportunity for consultation. He pointed out that in the past Dr Oriani-Ambrosini had said that he was speaking for himself, and that he did not need an opportunity to consult.

Dr Oriani-Ambrosini raised a point of order, saying vehemently that some of these statements were untrue. He had never said nor would suggest that he could act independently of any other members of his party.

Ms M Smuts DA) suggested that Dr Oriani-Ambrosini was wasting the time of the Committee.

The Chairperson noted that even as late as the previous day, Dr Oriani-Ambrosini had indicated that he had been prepared to vote on a matter. He could also recall some intimations that he may not need to consult on certain issues. It was the obligation of all Members of the Committee to consult regularly with their parties’ study groups and the party. If that had been done then the party would have been familiar with the processes. He did not think that it was necessary to adjourn the meeting at this point, to consult on the processes.

Mr Landers summarised that the Committee had the new draft, the amended Bill, as contained in the “Clean Working Document” and the original Bill. For purposes of voting, he suggested that the Committee should use the “Clean Working Document” and refer to the clause numbers set out in that document. He thought that there were probably places where the opposition parties would wish to raise their objections to particular clauses.

Ms Smuts agree, and added that the DA would be moving amendments to some clauses.

Mr Landers said that the amendments would, when proposed, be put to the vote, and the process would follow from that.

Mr Landers put a formal proposal that the Committee should commence clause-by-clause voting on the Clean Working Document.

The Chairperson noted again that the document represented the ‘B’ version of the Bill. He asked Members to begin from the title page. He asked Members if they wished to vote on each clause.

Ms Smuts and Mr Landers agreed that each clause should be tabled, and voted upon.

Title page
Ms van Wyk noted that the words “as introduced”, in the middle of the Title page, should be changed to “as redrafted“, noting that when the Bill was tabled to the National Assembly, it would be tabled as “As redrafted by the ad hoc Committee”.

Members agreed.

Ms Smuts asked if the Motion of Desirability would be read out at this stage.

Mr Landers and the Chairperson agreed that this would be done at the end of the process.

Long Title, Preamble, Contents,
Members agreed to these clauses.

Clause 1: Definitions
Ms Smuts note that the DA would oppose clause 1, because of the addition of clause 1(4), and proposed that this subclause be deleted.

Mr S Swart (ACDP) seconded the proposal to delete, noting that his party also opposed this clause and requested that it be deleted.

Five votes were recorded in favour of the proposal, two from the DA, one from the IFP, one from the ACDP and one from COPE. Eight votes were recorded against the proposal to delete subclause 1(3).

Mr Landers asked for clarification of who was entitled to vote. Mr N Koornhof was present and was apparently representing COPE, although he had not contributed to the process previously.

Ms Smuts said that Mr Koornhof was carrying the mandate of his party, COPE

Mr N Koornhof (COPE) said that he had been asked to attend on behalf of Mr Dexter. He had understood that a party could send a delegate to any meeting.

The Chairperson agreed that the Rules did allow for the appointment of an alternate delegate, who would be permitted to vote. It was true that any MP could attend any meeting, but would only have voting powers if delegated by the House. The COPE Member appointed to this Committee had been delegated some time previously to Mr Dexter, and he was not sure that Mr Dexter could delegate these powers, but thought that the authority must be conferred directly by the official COPE representative on the Committee.

Mr Koornhof confirmed that he had been asked to attend by Mr Dexter. He was prepared to accept the ruling of the Committee.

Mr Landers said that, with respect, the Committee was not sure what the situation was with COPE. He would have no problem should Mr Koornhof be given the right to vote. However, he was concerned that this might raise a problem.

Mr Koornhof said that he was not “prepared to play politics”. As far as he had understood, Mr Dexter had been attending these meetings, and he carried a brief from Mr Dexter.

Dr Oriani-Ambrosini noted that Rule 1.33 allowed the Chairperson of a meeting to co-opt any of the National Assembly Members to act as a Member of a Committee, until the person who was absent was no longer absent. He suggested that the Chairperson could simply officially co-opt Mr Koornhof to the Committee as the representative of COPE.

Mr A Maziya (ANC) said that Mr Landers had already conceded that the ANC did not have a problem, provided that, in return, COPE would not claim at a later stage that Mr Koornhof did not have a mandate. If a party decided to send someone who had not attended meetings previously, then he thought it would be correct for that person to announce his presence at the start of the meeting.

The Chairperson saw no problem with exercising the discretion described by Dr Oriani-Ambrosini, in terms of the National Assembly Rules, and ruled that Mr Koornhof may remain, and that he could exercise voting powers.

Dr Oriani-Ambrosini wished to propose an amendment to the definition of “hostile activity”, on page 10, in paragraph (d), by substituting the word “or” with “and”.

No seconder was found for that proposal and it accordingly fell away.

Mr Landers then moved for the adoption of the whole of clause 1, including clause 1(4). .

The majority of Members voted in favour of the clause. The IFP abstained from voting.

Clause 2
Ms Smuts asked what would be done in respect of clause 2(j).

The Chairperson said that at this stage, subclause (j) did not form part of the clause, but because Ms Smuts had indicated that she wanted it still to be included in the document, so that Members were alerted to it when it was time to vote, the wording did appear in this document.

Ms Smuts then noted a formal amendment to the clause, by insertion of the former clause 2(j), as set out in the Clean Working Document.

Mr Landers said that, for reasons discussed at earlier meetings, including concerns put forward by Mr Swart, the ANC was opposed to this subclause being inserted.

The DA’s proposal to retain (j) was defeated, on a vote, with two abstentions recorded by COPE and IFP.

Members then voted on clause 2 as set out in the Clean Working Document, without inclusion of (j).

Members unanimously voted in favour of the clause, with the DA and ACDP Members recording that notwithstanding the exclusion of subclause (j), they were prepared to accept the remainder of the clause.

Clause 3
Members voted unanimously to adopt this clause.

Clause 4
Ms Smuts indicated that the DA was opposing clause 4.

Two votes from the DA were recorded against the clause. The majority of Members, including ACDP and COPE, voted to adopt the clause.

Clause 5
This clause was adopted. The DA abstained from voting.

Clause 6
Members voted unanimously in favour of the clause.

Clause 7
Dr Oriani-Ambrosini moved for the deletion of clause 7. This was not seconded and his counter-proposal accordingly fell away.

The majority of Members voted in favour of the clause. The IFP recorded a vote against the clause.

Clause 8
The majority of Members voted in favour of the clause. The DA recorded two votes against the clause.

Clause 9
The majority of Members voted in favour of clause 9, with the DA recording two votes against the clause.

Clauses 10, 11, 12, 13,
These clauses were unanimously agreed to.

Clause 14
Ms Smuts asked that she be recorded as seconding this clause, pointing out that it now referred to “conditions”, as she had requested, and was the heart of the Bill.

This clause was unanimously passed.

Clause 15
Dr Oriani-Ambrosini moved for the deletion of clause 15, but his proposal was not seconded and accordingly fell away.

Mr Maynier then moved an amendment to the clause, which he indicated was set out on page 4 of the Committee Proposal Document 24, dated 30 August (see attached document).

Dr Oriani-Ambrosini suggested that this amendment should be read out, so that it formed part of the record of the proceedings.

The Chairperson asked that the proposal be read out, and Mr Maynier did so.

Mr Maynier's motion was seconded by Ms Smuts. Five votes from the opposition parties were recorded in favour of the proposal. Eight votes were recorded against.

When Dr Oriani-Ambrosini’s vote on the proposal was questioned, Dr Oriani-Ambrosini noted that since his own proposal to delete the clause was not carried, he was now prepared to vote in favour of the amended clause.

The majority of Members then voted in favour of the clause as contained in the Clean Working Document.

Clauses 16, 17
These clauses were accepted unanimously.

Clause 18
Mr Landers moved for adoption of the clause.

Dr Oriani-Ambrosini moved a counter-proposal for the addition of a new sub item (c) to the clause, reading “failing which it shall be deemed that said classification has lapsed”.

Ms Smuts indicated that she would second this proposal.

Four votes were recorded in favour of that amendment, and eight against. The proposal to amend the clause was therefore defeated.

The majority of Members then voted to accept the clause as set out, with the IFP abstaining from that vote.

Clauses 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30
These clauses were unanimously accepted by all Members.

Clauses 31, 32
These clauses were unanimously carried.

Clause 33
The majority of Members voted in favour of this clause, with Dr Oriani-Ambrosini abstaining.

Clause 34
This clause was unanimously carried.

Clause 35
The majority of Members voted in favour of the clause, with the DA and IFP recording votes against the clause.

Clause 36
The majority of Members voted in favour of this clause. Five abstentions were recorded, from the ACDP, COPE, DA and IFP.

Clause 37
The majority of Members voted to accept this clause. The IFP recorded a vote against this clause. The DA, ACDP and COPE recorded abstentions.

Clause 38
Dr Oriani-Ambrosini moved for the amendment of this clause, by the substitution of the words “activity or prejudice” with “activity and prejudice” wherever these words occurred in the clause.

Ms Smuts seconded his proposal.

Two votes were recorded in favour of the proposal, with eight against, and there were three abstentions, from one DA member, the ACDP and COPE.

Members then voted on the clause as set out. The majority of Members voted to accept the clause. The IFP recorded a vote against the clause. The DA, ACDP and COPE recorded abstentions.

Clause 39
The IFP abstained from voting on this clause, but all other Members voted to adopt it.

Clause 40
The IFP abstained from voting on this clause, but all other Members voted to adopt it.

Clause 41
Dr Oriani-Ambrosini moved for the deletion of the words “or security service” wherever these words occurred in the clause. This proposal was not seconded, and accordingly fell away.

The majority of Members voted to adopt the clause, with the IFP recording a vote against the clause.

Clause 42
The majority of Members voted to accept the clause, but the ACDP and IFP abstained.

Clause 43
Three Members indicated that they wished to move amendments to this clause.

Mr Landers raised a point of order. He noted that these amendments had already been debated extensively during the Committee meetings and he felt that allowing the proposals to be read out again was tantamount to allowing a further debate.

Dr Oriani-Ambrosini said that it was a requirement that everything upon which the Members were voting either had to be distributed so that it was available before the Members in printed form, at the time that the vote was being taken, or that it had to be read out.

Ms A van Wyk (ANC) asked in what Rule this was contained.

The Chairperson ruled that Members should read out their proposals for amendment.

Mr A Maziya (ANC) asked if this session was one in which motivations and de-motivations would be allowed.

Ms Smuts asked him what he meant by this.

The Chairperson clarified that there was no motivation being put forward. He asked the Members again to proceed to read their proposals for amendment.

Mr Swart moved that the ACDP’s version for the public interest defence be accepted, and this was seconded by Dr Oriani-Ambrosini. Mr Swart clarified that he was asking for the “PAIA version” to be set out, and noted that it would be an amendment to clause 43(3) and was contained in the Committee Proposals Document explained that he wanted the “PAIA version” accepted. This was an amendment to clause 43(3). He read this out, as contained in the Committee Proposals Document 25, dated 30 August 2011.

Mr Maynier then proposed the DA amendment, which he read out, also indicating that this had been set out in the Committee proposal Document 25, dated 30 August 2011. His proposal was seconded by Ms Smuts.

Dr Oriani-Ambrosini also wished to move for an amendment for clause 43. He noted that after the words “five years” a new clause should be added in, and the wording of this clause commencing “It shall not be unlawful to make a disclosure..” was read out, as it appeared in the Committee Proposal Document 24, dated 30 August. Mr Swart seconded the proposal for an amendment.

Mr Landers questioned whether Mr Swart was permitted to move his own amendment, and then act as a seconder for another amendment.

Mr M Sonto (ANC) said that where one party put a proposition and another put a different position, but each supported the other as seconder, he thought that this might cause a conflict.

The Chairperson ruled that the seconding of proposals would be allowed, even by a member who might earlier or later put his own proposal. Each of the proposals for amendment would be voted upon separately.

The Chairperson firstly put the proposal of Dr Oriani-Ambrosini to the vote. Two votes were recorded in favour of the amendment, from the IFP and ACDP. All ANC Members voted against the proposal

The Chairperson then put the proposal of Mr Maynier to the vote. Four votes were recorded in favour of Mr Maynier’s proposal and eight votes were recorded against.

The Chairperson then put Mr Swart’s proposal to the vote. Four votes were recorded in favour of the proposal, and eight votes were recorded against.

The ANC proposal to adopt the clause was then put to the vote. Eight votes were recorded in favour of the clause, and four against, from DA, ACDP and COPE. The IFP recorded an abstention.

Clause 44
Mr Maynier noted that the DA opposed clause 44 and wished to move an amendment, as set out on page 9 of the Committee Proposal Document 24 dated 30 August. He read out this amendment. His proposal to amend was seconded by Ms Smuts.

Four votes were recorded in favour of the amendment, and eight were recorded against it.

The Committee then voted on the proposal by the ANC to accept the clause as set out in the Clean Working Document. The majority of Members voted to accept the clause. Four votes were recorded against it. COPE indicated its abstention.

Clause 45
The majority of Members voted in favour of the clause. The IFP recorded an abstention.

Clause 46
The majority of Members voted in favour of the clause, with the DA recording two abstentions.

Clauses 47, 48
These clauses were unanimously adopted

Clause 49
The majority of Members voted in favour of the clause. The IFP, ACDP, DA and COPE recorded five votes against the clause.

Proposal to insert addition clause
Dr Oriani-Ambrosini moved for the addition of a new clause, to appear between clauses 49 and 50.

The Chairperson noted that this proposal would have to be put at the end of the meeting.

Clause 50
The majority of Members voted to accept clause 50. Dr Oriani-Ambrosini was not in the meeting at the time.

Clause 51
The majority of Members voted to accept this clause. Dr Oriani-Ambrosini was not in the meeting at the time.

Clauses 52
This clause was unanimously adopted, although Dr Oriani-Ambrosini was not in the meeting at the time.

Clause 53,
These clauses were unanimously adopted.

Clause 54
The majority of Members voted in favour of this clause. Four votes were recorded against this clause, by the DA, IFP and ACDP. COPE recorded an abstention.

Clauses 55, 56, 57
These clauses were unanimously carried.

Proposed new clauses
Dr Oriani-Ambrosini put his proposal for the insertion of two new clauses, between clauses 49 and 50. Both had been set out set out in the Committee Proposals Document 25, dated 30 August 2011.

The first proposed new clause related to the public domain defence. This clause commenced with the words “ Any classified information which falls within the public domain…” Dr Oriani-Ambrosini read out the proposal, which was seconded by Mr Swart.

Two votes were recorded in favour of the proposal for the first new clause, by the IFP and ACDP. The DA and COPE abstained. Ms Smuts remarked that whilst she would have liked to support Dr Oriani-Ambrosini in principle, she nonetheless considered herself bound by the Constitutional Court judgments.

Dr Oriani-Ambrosini then put his proposal for the insertion of the second new clause. This, also set out in the Committee Proposals Document 25, dated 30 August 2011, commenced with the words “Anyone charged with an offence under this Act shall be entitled to raise, as an exculpatory defence…” He read out the proposals and it was seconded by Ms Smuts.

Four votes were recorded in favour of the motion, but it was defeated by the majority of Members.

Conclusion
The Chairperson noted that this Clean Working document would now be sent away for printing in a formal Bill form.

Mr Landers noted that Members had earlier raised questions on the Memorandum of Objects, and noted that the ANC agreed that it would be necessary to make amendments. He also noted that there had been amendments to the structure of the Bill. He suggested that the State Law Advisors be asked to effect the necessary amendments, and that in the following week, the whole new ‘B’ version of the Bill, with the necessary amendments, could be put for a formal vote.

Mr Maynier asked if, by the following week, it was likely that the intelligence structures would have been able to work out the financial implications.

Mr Landers answered that this would not be done. It was a more simple matter of reflecting that there would be financial implications, which would be done by the deletion of the word “none” under “financial implications”.

Mr Maynier said that this would still give no clarity on the financial implications

Mr Landers agreed, but said that this was not the job of the intelligence services, but of the National Treasury.

The meeting was adjourned, until 14h00 on Monday 5 September.