Opposition parties urged the ANC on Tuesday to strike a provision from the Protection of Information Bill that would allow intelligence agents to classify any part of their work, but the ruling party refused.
The issue is considered critical because, opponents say, it would widen the scope of the state secrets legislation and risk creating a culture of secrecy.
It arose on Tuesday when lawmakers ran through definitions in the Bill, which they are trying to finalise by Friday.
The current draft criminalises the disclosure of any state security matter, and defines it as including “any matter that is dealt with by the agency or which relates to the functions of agency or to a relationship existing between any person and the agency”.
Mario Oriani Ambrosini, from the Inkatha Freedom Party, told colleagues: “I propose that we take it out.”
ANC MP Annelise van Wyk said the ruling party believed the proposal should be rejected.
Oriani Ambrosini found succour from his Democratic Alliance colleagues, with Dene Smuts pleading that MPs at least redraft this definition to say that only classified information relating to the operations of the intelligence services may be kept secret.
“Otherwise it flies in the face of the whole Bill which now deals with classification to protect the national security,” she said.
Smuts was referring to a hard-won agreement reached last week that only information that could put at risk the security of the republic if revealed may be kept secret.
Her colleague David Maynier asked that the issue be flagged for further discussion when MPs came to clause 52 of the Bill, which prescribes a prison sentence of up to three years for disclosing a state security matter.
The Right 2 Know campaign said on Friday the clause risks undoing the gains towards transparency made in deliberations on the Bill in recent weeks.
It called on lawmakers to “limit secrecy to strictly-defined national security matters and no more”.
It is one of the biggest remaining sticking points on the draft Act, along with the absence of a public interest defence to spare journalists and whistleblowers who reveal secret information to expose wrongdoing being sent to prison.
On Friday, the Congress of South African Trade Unions again called on the ANC to allow for greater protection for whistleblowers.
On Tuesday, the Open Democracy Advice Centre submitted a legal opinion on the matter to the committee.
In it, senior advocate Colin Kahanovitz argued that the protection afforded to workers who expose wrongdoing by a subclause stating disclosure will not be a crime if sanctioned by the Protected Disclosures Act was insufficient.
He said the best way of protecting whistleblowers was to “narrowly tailor any criminal provision for disclosure which excludes expressly all possibilities of genuine whistleblowing from harm such as criminal prosecution”.
“This is as the mere threat of prosecution creates a chilling effect on whistleblowing.”
The ANC has made clear that it will not countenance a public interest defence and insiders say this could yet trigger a Constitutional Court challenge to the legislation.
An expected debate on the issue in the committee drafting the Bill did not materialise on Tuesday, as MPs tried to resolve confusion about the appeal process to be followed if the minister of state security refuses a request to declassify information.
They agreed that, in cases where the requester argues that declassification is urgent, he or she would not be obliged to lodge an appeal to the ministry but could go straight to court.
The opposition and activists remain unhappy about the ANC’s reluctance to appoint an independent authority to hear appeals that are not urgent.
They argue that this is necessary because the courts are too costly to be a recourse for the majority of South Africans. — Sapa
The passing of the Protection of State Information Bill came as no surprise, raising the threat to media freedom. View our special report.