Dario Milo, Media Law associate professor at the University of the Witwatersrand, wrote about the PSIB, stating that the new draft was a significant improvement both on the first draft introduced in Parliament in 2008, and the draft introduced in 2010. The indefensibly vague notion of the “national interest”, which would have resulted in chronic over-classification, was removed. So was the original attempt to permit the classification of commercial information. Better thresholds for classifying information, based on demonstrable and not speculative harm to national security and a classification review committee, was also a step in the right direction (Times Live, 27/22/2011).
Despite these welcome developments, Milo considered the criminal sanctions the PSIB sought to impose as “very stiff”. The unjustifiably wide net of liability was rendered “constitutionally intolerable” by the fact that there was no general public interest defence to be invoked by a whistleblower to disclose information that had been classified and which the public had a genuine “right to know” (Times Live, 27/11/2011).
It was later reported that “after steadfastly refusing to include a public interest defence clause” in the PSIB, ANC delegates to the National Council of Provinces (NCOP), the second house of the South African Parliament, ad hoc committee dealing with the PSIB appeared to open the door a fraction by proposing several significant changes to the PSIB (iol, 11/5/2012). Although the proposal did not, strictly speaking, amount to a public interest defence, it was the closest the ANC had come
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to offering protection for those who revealed classified information in what could be deemed to have been in the “public interest”.
In another significant concession, the ANC proposed that minimum prison sentences be scrapped altogether (iol, 11/5/2012). ANC delegates proposed amendments to the draft that would protect anyone who disclosed information that was incorrectly classified by officials to hide “an unlawful act or omission, incompetence, inefficiency or administrative error” - or to avoid “embarrassment, scrutiny or criticism”.
The Mail & Guardian (14/6/2012) reported that as South Africa’s human rights record was scrutinised by a working group of the UN Human Rights Commission (UNHRC) in Geneva, it found itself “on the receiving end of significant international condemnation” with regard to the PSIB. The intervention – described as the biggest collective stand yet taken by foreign governments on the issue – was welcomed by activists who opposed the PSIB.
In response, South Africa’s delegation insisted the PSIB was not aimed at the media (Mail & Guardian, 14/6/2012). The primary purpose was not to regulate or interfere in any way with the media or access to information, but sought to amend statutes not consistent with the Constitution. The government had also been very open and had engaged with the media and with civil society.
The DA said views expressed at the UN would boost efforts to amend the legislation and welcomed any influence brought to bear that would result in the PSIB being amended to make it more acceptable and constitutional (Mail & Guardian, 14/6/2012). Noting the government’s remarks that the PSIB was not intended to curb the media, the DA commented that whether or not it was the purpose of the PSIB was debatable. The fact remained that the PSIB posed a significant threat to human rights and fundamental freedoms enshrined in the Constitution.
The Department of State Security rejected proposals by the ANC to give greater protection to whistleblowers, remove all minimum prison sentences from the PSIB and narrow the definition of national security (Mail & Guardian, 13/6/2012). Acting Director-General of State Security, Dennis Dlomo, dismissed a proposal by
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opposition parties to delete a provision that the new classification law trump PAIA if the two came into conflict.
The gesture of the ANC’s MPs to accommodate a call by rights groups to include a public interest defence for those charged with revealing state secrets, by proposing that people who revealed classified information to expose criminal wrongdoing be exempted from prosecution, was also rejected by the Department (Mail & Guardian, 13/6/2012). So was the ANC’s stated readiness to remove clauses that would, according to legal experts, place an unacceptably heavy onus on those charged under the legislation. The Director of ODAC, Alison Tilley, said the department’s attempt to prescribe to lawmakers was problematic, as it was an attempt from the executive to tell Parliament how to legislate. This demonstrated a clear misunderstanding of the doctrine of separation of powers.
The ANC suggested changes to the contentious PSIB again by proposing to reinsert a clause offering protection for those who revealed classified information to expose a crime (iol, 21/11/2012). The move was welcomed by the DA (iol, 21/11/2012). ANC lawmakers furthermore agreed to remove a clause which stated that the measure would trump PAIA, and to reword a preceding clause to state that in case of a clash between the new official secrets legislation and any other law, courts must prefer a reasonable interpretation that avoids a conflict “taking into consideration the need to protect and classify certain state information in terms of this act”. They also made a proposal to give explicit permission to the Public Protector, the Auditor General and all other Chapter Nine institutions to be in possession of classified information (iol, 21/11/2012).28
‘Jubilant’ ANC MPs reportedly passed the PSIB, with proposed amendments, in the NCOP in November 2012 with 34 votes in favour and 16 against (Pretoria News, 30/11/2012). State Security Minister, Siyabonga Cwele, said those opposing the Bill had not told South Africans that it was more progressive than any other act anywhere else in the world that governed the protection of classified information. He said the government would not support a bill that undermined the Constitution and
28
Chapter Nine Institutions are the state institutions supporting constitutional democracy, named after their place in the Constitution (Polity, 2012).
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did not strike a balance between secrecy and transparency (Pretoria News, 30/11/2012). Western Cape Social Development Member of the Executive Council (MEC) Albert Fritz, speaking on behalf of Premier Helen Zille, said that if he was a journalist, he would “fear for his life” (Pretoria News, 30/11/2012).
The DA vowed to continue to fight the PSIB all the way to the Constitutional Court, saying it was still inconsistent with the Constitution (Weekend Pretoria News, 1/12/2012). DA parliamentary leader Lindiwe Mazibuko said while the “tireless efforts” of opposition parties and civil society had led to some important changes to the Bill, they did not go far enough (Weekend Pretoria News, 1/12/2012). ANC parliamentary spokesperson Moloto Mothapo said it was ‘nonsense’ that the Bill would not pass constitutional muster. It was a “complete redraft” of what had been introduced to Parliament in 2008 (Weekend Pretoria News, 1/12/2012).
The PSIB was eventually adopted in the National Assembly on 25 April 2013 with 189 votes in favour, 74 against and one abstention (Mail & Guardian, 26/4/2013). State Security Minister Siyabonga Cwele told MPs the legislation had been significantly altered and the government was confident that it had addressed the concerns of the people.
The Mail & Guardian (25/4/2013) explained that Section 79 of the Constitution allowed the President to refer the Bill back to the National Assembly and the NCOP for reconsideration.29 If he was still unsatisfied with it at the end of that process, he could refer it to the Constitutional Court. It was suggested that the Bill was probably heading for a Constitutional Court review regardless of the President's decision. If the court justices were to decide that the Bill was constitutional, the President would have to sign it; a decision civil society and opposition parties thought unlikely.
Despite wide-reaching reforms to the Bill, there is consensus among civil society and opposition parties that the reforms have not gone far enough to ensure the Bill's constitutionality (Mail & Guardian, 25/4/2013). Murray Hunter, national coordinator of
29
Section 79 reads: “The President must either assent to and sign a Bill passed in terms of this Chapter or, if the President has reservations about the constitutionality of the Bill, refer it back to the National Assembly for reconsideration” (South Africa, 1996).
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the Right2Know (R2K campaign), said while there was no guarantee of a win in the courts, he felt the organisation had a "moral obligation" to try. Nic Dawes, SANEF's chairperson and editor of the Mail & Guardian, said the Bill affected the basic rights of South Africans and the country would only benefit from "rigorously ensuring the Bill complies with constitutional precepts" (Mail & Guardian, 25/4/2013).
R2K protesters picketed near the offices of the ANC in Johannesburg on 9 September 2013 pleading with President Jacob Zuma not to sign the PSIB into law. They cited a lack of protection for whistleblowers as a sticking point (The New Age, 10/9/13). On 13 September 2013, media reported that the President had “unexpectedly backtracked” by announcing that he had “serious reservations” about the constitutionality of the Bill and that he had referred it back to the National Assembly to be fixed. The President said sections 42 and 45 lacked meaning and coherence, consequently were irrational and, accordingly, were unconstitutional (Business Day, 13/9/13).
ODAC executive director Mukelani Dimba said they supported the conclusion of the President that the Bill did not pass constitutional muster, but added that ODAC believed that the unconstitutionality and inappropriateness of the Bill extended beyond sections 42 and 45 and instad went to the underlying rationality and foundation of the Bill (Business Day, 13/9/13).
SANEF chairman Mpumelelo Mkhabela also welcomed the President’s decision saying although the President cited only a few problematic clauses, this was merely an example and Parliament now had an opportunity to reconsider other clauses which may be unconstitutional (Sowetan, 13/9/13). The DA said that the sending back of the PSIB based on two rather technical objections did not cover the unconstitutional sections of the Bill and therefore the party’s objetions to the Bill stood (Beeld, 14/9/13).
The Cape Argus (13/9/13) commented that putting the Bill back into political play was to be welcomed, but there might be cause for suspicion, considering the President’s narrow focus. The Sunday Independent (15/9/13) also cautioned that the President’s objections to the Bill were not necessarily the problematic sections that
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could have a devastating effect on media freedom and citizens’ right to know. The
Sunday Times (15/9/13) suggested that if there was a way that MPs could use the
President’s limited referral to reopen a fundamental debate on the intentions of the Bill, they should seize it. Beeld (16/9/13) commented that the resistance to the unconstitutional attack on freedom of speech remained unchanged, despite the President’s decision. The Citizen (16/9/13) insisted that the redrafted Bill should be challenged in the Constitutional Court.