What is a state organ?

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Members of Parliament serving on an ad hoc committee considering the Protection of Information Bill have clashed at length over the definition of state organs. Democratic Alliance MPs Dene Smuts and David Maynier asked that chief state law advisor Enver Daniels submit a schedule listing all state organs affected by the proposed law.

The Times newspaper reports the two DA MPs wanted the list in order to include it in the Bill to clarify which institutions would be categorised as organs of state. Smuts argued that it was not clear if the bill in its current form would be applicable to entities like universities and bodies like the Law Society of South Africa, the statutory professional body of the attorney’s profession, as it was unclear if such agencies would be categorised as organs of state.
“It will be a way for us as a committee to see which one of these departments and agencies really are relevant to this bill, to the protection of national security as we are going to define it.” Smuts said it would be inappropriate to make the bill “applicable to all of these departments. It does not make any sense.”

But the South African Press Association reported committee chairman and African National Congress MP Cecil Burgess said asking Daniels to make a list was like “counting the grains of sand in the Sahara”. Smuts said a list supplied by an Attorney General in the past had put the figure at 648, confirming her argument that far too much was being filed by too many officials.

ANC MP Luwellyn Launders vehemently rejected the DA’s proposal, saying it was not relevant to the processing of the Bill. He said neither the constitution nor the 2002 Promotion of Access to Information Act contained a schedule of state organs. “For those reasons we believe it’s unnecessary to have such a schedule for this bill. We would be opposed to asking … Daniels to produce any kind of schedule of organs of state,” said Launders.

Daniels said it would be impossible for his office to produce a schedule of state organs. The term “organs of state” is used to refer to a range of institutions, including national and provincial government departments, municipalities and their business agencies. “That would be a time-consuming and an almost impossible task, even for an office as well-resourced as mine”, he said. Burgess added “You are going to be chasing your tail here when you try to come to a final figure of how many organs of state there are.”

Smuts rejected the notion that the Bill should apply universally. “Why should the intelligence community tell everybody how to look after their information?” Smuts asked, adding that safeguarding information held by departments like Home Affairs was a matter of “pure administration. Do we need a law (for that)?” Burgess countered: “We need a law and we need it fast.” He said this was because the lack of clear legislation in the post-apartheid era had meant “we cannot punish people” who published secret information.

SAPA noted the argument goes to the heart of the ideological disagreement between the ANC and the opposition over what information needs to be filed as secret in the interest of national security and by whom. A public outcry over the draft law last year saw the ANC narrow its original scope by removing a provision for classification in the “national interest” and classing commercial information in secret files. It outraged the media and rights groups and led an opposition MP to remark it created a situation where you can “classify a grocery list”.

Daniels Tuesday presented MPs with more than 60 pages of further suggested changes to the Bill as the ad hoc committee considering the draft law held its first meeting on the controversial legislation for the year. SAPA noted wrangling over the Bill was expected to continue for some time, though according to the parliamentary programme the draft law is meant to be finalised this week. “We need a year,” Smuts told the news agency. Burgess, who chairs the ad hoc committee, refused to pronounce on the time needed to finish the job. He said he had been forced to draft a tight schedule as the lifespan of the committee expires soon, but could request to have it extended yet again.

The changes made by Daniels leaves open the question of how to reconcile the Bill with the liberal Promotion of Access to Information Act (PAIA). This suggests a possible retreat from a proposal made by Burgess – and welcomed by the opposition – last year that all requests to declassify information be handled through PAIA. SAPA noted the cross-referencing would have provided some relief to journalists in that PAIA contains a public interest override, but it stopped well short of creating a public interest defence. The media, rights lawyers and the opposition have clamoured for such a defence as it would allow journalists who publish classified information to argue they did so in the public interest.

African Christian Democratic Party MP Steve Swart said the major issue to be debated in coming weeks or months remained the public interest defence. “That is going to be the important angle.”

The governing African National Congress (ANC) has repeatedly said it will not relent on the issue, and the draft changes simply contain a clause requiring the authorities to take into account “the public benefit to be derived from the disclosure of the information”.

Burgess Tuesday accused the media of stirring fears that powers to classify information would be abused by corrupt officials, and said the Bill could not be drafted as if nobody in the state service could be trusted. But his critics have quoted 1960s US President Lyndon Johnson’s caution that one does “not examine legislation in the light of the benefits it will convey if properly administered, but in the light of the wrongs it would do and the harms it would cause if improperly administered.”

Other draft laws currently before Parliament influencing the free flow of information include the Protection of Personal Information Bill, the Protection from Harassment Bill and mendments to the Companies Act.

Once enacted they will join a number of existing laws that for reasons good or bad already restrict your access to information and news. These include the current Protection of Information Act 84 of 1982, the Defence Act 42 of 2002, the Protection of Constitutional Democracy Against Terrorism and Related Activities Act 33 of 2004, the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, the Criminal Procedure Act 51 of 1977, the National Key Points Act 102 of 1980, the Films and Publications Act 65 of 1996, the Films and Publications Amendment Act 3 of 2009 and the Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2002. Further limitations in law include limitations on court reporting imposed by the Children’s Act 35 of 2005, the Child Care Act 74 of 1983, the Divorce Act 70 of 1979, the Maintenance Act 99 of 1998, the Magistrates’ Court Act 32 of 1944 the Inquests Act 58 of 1959 and others. This is in addition to the common law delict of defamation (libel or slander) and the common law crime of crimen iniuria (criminal defamation).

Waiting in the wings is a National Key Points and Strategic Installations Bill and possibly a “Internet and Cellphone Pornography Bill” and maybe another establishing a Media Appeals Tribunal (MAT) that in the worst case could jail journalists. The South African Institute of International Affairs in an opinion editorial noted this week the ANC hopes the “secrecy Bill” and MAT will regulate the print media specifically, which is deemed by the party to suffer from “an astonishing degree of dishonesty, lack of professional and integrity and lack of independence”, according to the ANC’s “media transformation, ownership and diversity” discussion document.

But Judge Robert Nugent, writing for a full bench of the Supreme Court of Appeal in 2007 noted that it “is important to bear in mind that the constitutional promise of a free press is not one that is made for the protection of the special interests of the press.” Writing in Midi Television (Pty) Ltd v Director of Public Prosecutions [2007] SCA 56 (RSA) he cautioned against a special status for journalists: “As pointed out by Anthony Lewis, in a passage that was cited by Cameron J in Holomisa v Argus Newspapers Ltd: ‘Press exceptionalism – the idea that journalism has a different and superior status in the Constitution – is not only an unconvincing but a dangerous doctrine.'” He continued: “The constitutional promise is made rather to serve the interest that all citizens have in the free flow of information, which is possible only if there is a free press. To abridge the freedom of the press is to abridge the rights of all citizens and not merely the rights of the press itself.”



Nhlanhla Ngidi, the Director-General KwaZulu-Natal last month told a provincial Department of Arts and Culture forum that the drafters of the present Constitution included the right to information
in the Bill of fundamental Rights as “they had a vision of South Africa as a vibrant, living and open democracy where our citizens would be consulted by government, would participate in government decision-making, and ultimately, would hold government accountable.
“A society underpinned by Constitutionalism and the Rule of Law, where the values of openness and transparency would prevail – a society free from maladministration, free from corruption and free from secretive practices and withholding of information to which only a select few would be privy to.
“So important did the drafters of our Constitution (and our Parliament – the elected representatives of our people) regard the right to information that the Constitution makes the enactment of national
legislation a constitutional obligation to give practical effect to this right,” Ngidi said in a speech prepared for delivery. “As we know, this culminated in the enactment of … PAIA. It is aimed at giving practical effect to all the rights in the Bill of Rights contained in our Constitution, and
establishing a culture of human rights and social justice. It aims to empower and educate society to understand and enforce their rights; to understand the functions and operation of public bodies and, not only to participate in, but also to scrutinise decision-making by public bodies and to hold those public bodies accountable. PAIA confers upon the citizens the right to participate in the formulation of policies and laws which will be implemented to regulate aspects of their lives, to govern them.” Critics of the “secrecy Bill” say an overly broad law will undo PAIA and leave citizens unable to enforce their rights.