Protection of State Information Bill: Working Draft 17, outstanding issues

Meeting report

Protection of State Information Bill: Working Draft 17 and Committee Proposals on Working Draft 17
Ms M Smuts (DA) reported back to the Committee that she had formally e-mail Adv van Rooyen to try to clear up the uncertainty around his opinion, as discussed during the previous day, and would send his response to the Committee when it was received. However, she had also telephoned him, and asked him to clarify whether he had deliberately included both “security” and “national security” when he gave his proposal on the clause. He noted that both these expressions had appeared on the draft that he was using at the time. He had not expressly applied his mind to the inclusion or otherwise, but would furnish a separate indication on this.

Ms Carin Booyse, Deputy Chief State Law Advisor, Office of the Chief State Law Advisor, tabled and took Members through the new Working Document 17. She pointed out one error, noting that at the bottom of page 19, clause 1(3) was still flagged for discussion, and therefore it should have appeared on the Committee Proposals document, and not on the Working Document. The insertion of “Responsibilities of Agency” was noted on page 62.

Ms Booyse then took Members through the Committee Proposal document. She summarised the additions and changes to pages 1, noted that the IFP proposals were now included in page 3, on page 7, and on page 13, as optional proposals. The changes to the wording of the sanctions had been noted on pages 11, at the bottom of the former clause 38 (now clause 47). At the bottom of page 13, a proposal by the ACDP was now included. On pages 14 and 15, paragraphs had been excluded, as marked.

Mr S Swart (ACDP) wanted to explain the difference in the wording of his proposal to the Committee. He noted that, under the heading “Further proposal”, for the new clause 47, subclauses (c) and (d) were included, which essentially added to what was contained in PAIA. The second “OR Further Proposal” was a narrower one, that only contained wording relating to substantial contravention of the law, or an imminent and serious public safety, public health or environmental risk.

Ms Booyse continued to note the deletion of the words “or to both such fine and imprisonment” from clause 48 on page 15, and the deletion of the same phrase in clause 49, as noted on page 16.

Ms Booyse noted that Dr M Oriani-Ambrosini (IFP) had asked the State Law Advisors to insert further additional IFP proposals relating to clause 48 and these were set out on pages 17 and 18.

The Chairperson said he did not understand why Dr Oriani-Ambrosini was asking for matters to be included in this document, when they had not gone to the Committee. The IFP had distributed its own document. The idea was not to “cloud” the Committee Proposals document on a whole range of matters.

The Chairperson noted that another matter still to be discussed related to the procedure for appeals.

Members confirmed that the Committee Proposals document seemed to correctly reflect their instructions.

Opinion on interpretation of “prejudice” by the courts
The Chairperson asked the State Law Advisors to present their opinion and advice on how the Courts had, in the past, interpreted “prejudice”.

Mr Sisa Makabeni, State Law Advisor, Office of the Chief State Law Advisor, noted that the State Law Advisors (SLAs) had looked mostly at the cases dealing with fraud, since one element of that crime was “causing prejudice”. The cases dated back to the 1940s. In a (formerly named) Appellate Division decision, Schreiner JA had outlined that a statement, in order to be considered prejudicial,  must outline a risk of harm, which need not necessarily be financial harm, to a person, and that person need not also be the one to whom the statement was addressed. A further Appellate Division case said that the test for prejudice was an objective test as to whether the action was likely to cause a risk of harm. The use of the word “likely” was not intended to convey probability, but risk.

The case of R v Kruger discussed whether prejudice did actually have to be caused and decided that the risk of prejudice was sufficient. Another case, S v Heyns said that prejudice to the State amounted to the same as prejudice to the head of a department of state, as a foundation  to the charges of fraud, and prejudice to the community for whose protection certain regulations had been enacted. The same meaning was attached to this in S v Labuschagne, a Northern Cape case involving forgery. One of the elements of the crime of forgery was “causing prejudice, with intent to defraud”. Similar meanings had also been attached to prejudice in a 2003 Witwatersrand Local Division matter that discussed “prejudice” in the context of the Criminal Procedure Act.

All these cases seemed to clearly indicate that the Court had adopted consistent interpretations of “prejudice”, that they used an objective test, and that the concept of prejudice, meaning the risk of harm, was familiar to the Courts.

Discussion
Mr Swart said that he had also done some research. He agreed with the opinion of the SLAs. He stressed that this was dependent on the context of prejudice, and how the elements of the crime were framed. He pointed out that in the clause dealing with he classification levels, there was reference to both “prejudice” and “jeopardise’ and wondered if there was any difference between them.

Mr Swart summarised that the Bill as now reflected in the Working Draft had collapsed clauses together, but he was still concerned with the broadness of the concept. He wondered if there would be any objections to putting “prejudice” firmly into context, by specifically referring to “prejudice to national security”. He pointed out that if this was not done, prejudice to a state could equally mean economic harm, or some broader interpretation. He added that in generally accepted legal terminology “without prejudice” meant that there should be no harm to ongoing negotiations.

Mr D Maynier (DA) agreed that the context was important. Prejudice was clearly linked to national security and security. He suggested that it would have been very useful for the Committee to have heard about case law specifically on the subject of prejudice to the State, to put it in context. However, as a more substantive point, he had thought that the Committee had, earlier, agreed to taking a legal opinion from the Parliamentary Legal Advisors as to whether inserting a reference to “prejudice” into the hostile activity offence would result in making this offence overly broad, and therefore unconstitutional. If there was a misunderstanding on that point, then he wanted to put that proposal back on the table.

Mr L Landers (ANC) said that he recollected that there was a demand for a definition  of “prejudice” and that was where this discourse was centred. However, it was now suggested, in answer to the possibility that a definition of national security was not needed, that the concept of “prejudice” be considered in terms of hostile activities. He was satisfied with what had been presented. He did not believe any definition was needed for “prejudice” as the Courts clearly understood what it meant.

Ms Smuts said, for the record, that Mr Maynier had indeed asked for an opinion from Mr Vanara, Parliamentary Legal Advisor, on “prejudice” as phrased in the hostile activity offence, and she recalled that this had been agreed to, so she took issue with the suggestions that the DA was attempting to shift the goalposts.

Mr Maynier responded to Mr Landers that nothing had been said by the SLAs on the concept of prejudice in national security or security-related cases, so there was no evidence that the Courts did understand what it meant in that specific context. He urged the Chairperson to check what had been agreed. 

Mr Landers agreed that the SLAs had not brought forward an opinion specifically on prejudice to national security, because they had not been asked, in terms, to do so. It was the definition of “prejudice” alone that was raised. There had been lengthy argument on that point. He understood Mr Swart’s point about the context. However, Mr Maynier was raising something different.

Mr Maynier said that it was not his intention to criticise the SLAs, and that in fact his concern was the same as that of Mr Swart – namely that “prejudice”, in the context of national security, had not been discussed.

 The Chairperson clarified that the discussion on prejudice some days earlier was generated after the Committee had considered the Canadian law definition of “prejudice”, which included a range of matters. The counter-argument from Mr Landers was that the Courts knew what prejudice meant, and there was therefore no need for such a definition. The Committee wanted to know if there was any evidence that the Courts had a general understanding of “prejudice”. For that reason, the SLAs were asked to investigate and report back on this issue. He pointed out that when the instruction was given, none of the Members had raised any objections, or asked that this be put in a certain context. In regard to the opinion from the Parliamentary Legal Advisors, the Chairperson had indeed approached Mr Vanara, but he was very busy at the time, and doubted whether he would be able to provide that opinion within the short time required. He was then asked to liase with the SLAs. The Committee’s attention had been drawn, in the SLA’s presentation, to case law  in South Africa. Although it was true that o cases were mentioned that specifically related to prejudice in the national security context, it was clear that the Courts had applied their minds generally to the issue. He suggested that nothing would be served by further discussion as to who should have provided that opinion. If Members felt that the opinion was not on point, then another instruction could be given to Mr Vanara.

Mr Maynier said that he did want this to be done, and would draft the necessary instruction.

Mr B Fihla (ANC) said that the Committee should guard against the shifting of goalposts.

Mr Swart said that he wanted to make a formal proposal to insert “prejudice to national security” so that the context was more clearly understood and greater clarity was provided.

Whistleblower matters
The Chairperson noted that on the previous day an opinion had been tabled from the Open Democracy Advice Centre (ODAC), which he suggested that Members should read, although it was quite technical, to enlighten themselves on the whistleblower aspects. The Committee had already agreed upon new wording for whistleblowers in response to concerns raised at the public submissions.

Outstanding matters
The Chairperson summarised the matters still to be dealt with. The Committee was still waiting on the new drafts for the Preamble, and amendments to clause 3, the application clause. He said that the ANC expected to submit a revised and reduced version of clause 3.

Mr Landers added that Members still needed to debate whether there should be a definition of national security, and, if so, how it should be worded. The DA’s proposals on the disclosure offence had to be discussed. The Committee needed to consider whether to follow Dr Harris’ recommendations in regard to whether there should or should not be a declassification database, and, following that, also needed to consider whether there would be merit in reinstating any of the provisions around archival material that had been included in the 2008 version of the Bill. 

He added that the ANC had asked the SLAs to deal with certain aspects around the application. He agreed that the Preamble still needed to be discussed.

The Chairperson noted that the Committee must also still deal with the appeals. The SLAs had been asked, on the previous evening, to furnish an opinion on section 80 of the Promotion of Access to Information Act (PAIA). Members would also need to debate whether there was a need for the status review clause, following their discussions a couple of days ago on clauses 20 and 21.

Mr Maynier reminded Members that issues around security matters also needed to be debated.

The Chairperson said that the decisions on the hostile activity offence clause must still be taken. The conflict of laws was discussed on the previous day, but the final decision as to the wording must still be taken.

The Chairperson noted that on the previous day, the Committee had worked through the proposals on the Committee Proposals Document 16 and he hoped that Members had taken notes. He asked all Members to study this document, and be prepared to debate the issues, with a view to reaching finality, in the following week.

The meeting was adjourned, until Monday at 14:00, in G26.