THE FW DE KLERK FOUNDATION
Upholding South Africa’s National Accord

11 January 2012 

Ms Tyhileka Madubela
Secretary
Parliamentary Portfolio Committee 
On  Water and Environmental Affairs 
tmadubela@parliament.gov.za 

Dear  Madam
 Re: Submission to the Portfolio Committee on Water and Environmental Affairs with regard to   the Weather Service Amendment Bill

I. INTRODUCTION
1.	The FW De Klerk Foundation is a non-profit organization dedicated to upholding the Constitution.
2.	To this end, the Foundation seeks to promote the values, rights and principles in the Constitution, monitor developments, including draft legislation that might affect the Constitution, inform people and organizations of their constitutional rights and assist people and organizations to claim their constitutional rights as well as monitor inter-community relations and developments in the cultural, religious and linguistic fields which might affect such.
3.	The Foundation welcomes the opportunity to comment on the proposed Weather Service Amendment Bill. 
II. COMMENTS
1.	The Foundation is, in general, in agreement with most of the provisions of the Weather Service Amendment Bill, which appear to be unexceptional and necessary to ensure the effective provision of weather services. 

2.	However, the Foundation has serious concerns regarding the proposed clause 30A relating to offences and penalties.  The clause reads as follows:
“ 30A. 
(1) No person may—
(a) issue a severe weather or air pollution-related warning without 
the necessary written permission from the Weather Service;
(b) supply false or misleading information about the Weather Service;
(c) unlawfully, intentionally or negligently commit any act or omission
     which detrimentally affects or is likely to detrimentally affect the
    Weather Service.
3.	The Clause is irreconcilable with Section 16 of the Constitution which gives everyone the right to freedom of expression, which includes 
a.	Freedom of the press and other media;
b.	Freedom to receive and impart information and ideas;
c.	Freedom of artistic creativity; and 
d.	Academic freedom and freedom of scientific research.
  
4.	The only limitations placed on freedom of expression are 
a.	Propaganda for war;
b.	Incitement to imminent violence; or
c.	Advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

5.	Quite clearly, communication regarding weather or pollution-related conditions does not fall under any of the areas of expression prohibited by the Constitution.   
a.	The proposed clause would directly limit freedom of expression in terms of Section 16 (1) (a) of the Constitution by preventing print, electronic and social media from expressing their legitimate views on severe weather and/or air-pollution conditions;
b.	It would limit the freedom of people and organisations to receive and impart information and ideas on a topic of general and legitimate interest.  One can imagine many circumstances - such as the approach of a tornado - when ordinary citizens would have an over-riding need to warn others of an impending risk without the written permission of the Weather Service.
c.	The proposed clause would also give the Weather Service a monopoly of communication on issues of general importance to the public and would thereby limit academic freedom and freedom to conduct research by other organisations or individuals.  

6.	Proposed clause 30A (1) (b) is equally unacceptable and unconstitutional in as far as it limits the right of people and media to communicate freely with regard to a public institution.  Information is often “false or misleading” in the eye of the beholder - and there can be legitimate differences of opinion on virtually any question.  It is unacceptable to limit legitimate comment and debate - particularly on organs of state - even if such comment proves to be erroneous, false or misleading -  by interfering in any way with expression that complies with section 16 of the Constitution. 

7.	Proposed clause 30A (1) (c) is also unacceptable and unconstitutional.  Citizens in constitutional democracies are free to take action within the law that might well detrimentally affect organs of state - for example, by exposing incompetence and corruption; or criticising management or the activities of such an organ of state; or by exercising their right to strike in terms of Section 23 (2) (c); or by exercising their right to demonstrate against the Weather Service in terms of section 17 of the Constitution.

8.	Quite apart from the unconstitutionality of Clause 30A, the suggested penalties of fines between R 5 million and  R 10 million, or maximum imprisonment of between five and ten years are out of all proportion to the supposed offences.

9.	Clause 30A is also irreconcilable with Section 32 of the Constitution which gives everyone the right to access “any information that is held by another person and that is required  for the exercise or protection of any rights”.
   
10.	The Foundation accordingly recommends that the proposed Clause 30A should be withdrawn in its entirety - and that if there is, indeed, any necessity at all for a penalty provision, that it should be replaced with a new clause that is compliant in all respects with our constitutional democracy.

Yours sincerely

D W Steward
EXECUTIVE DIRECTOR
F W DE KLERK FOUNDATION