Once the Protection of Information Bill becomes law, which most likely will be before the end of this year, journalists and members of civil society can be arrested for being in possession of what the state deems to be classified documents. These types of documents have formed the basis for some of the country’s most important and ground-breaking stories.
Here are some stories that would have been subject to the restrictions of the new Bill — exactly the sort that are unlikely to see the light of day when the Bill becomes law.
These are some of the stories that could have resulted in prosecution under the narrowest interpretation of the Bill. Critics fear it could be used in a much broader way.
The Zuma tapes
In 2009 President Jacob Zuma was facing charges of corruption for his involvement in the arms deal, following the fraud and corruption conviction of his financial advisor, Schabir Shaik.
But while his trial was in progress his lawyer, Michael Hulley, came into possession of intercepted phone recordings that would soon come to be known as the “Zuma tapes”, after Business Day and The Times newspapers broke the story about their existence in early 2009.
The tapes recounted conversations between Bulelani Ngcuka, then national director of public prosecutions, and Leonard McCarthy, who was the Scorpions boss.
On the tapes Ngcuka and McCarthy could allegedly be heard discussing the timing of the charges laid against Zuma to create an advantage for his political rival, former president Thabo Mbeki.
Hulley made the recordings available to the National Prosecuting Authority (NPA), and its acting head, Mokotedi Mpshe, withdrew the charges because the legal process had been “tainted”.
The leaking of the recordings meant a number of things. Although Mpshe’s decision to drop the charges is still the subject of a legal challenge by the Democratic Alliance, the leaking of the tapes was, arguably, a protection of Zuma’s legal rights.
The tapes also brought to light alleged political abuses in the NPA, which is supposed to be an independent institution, as well as problems in state intelligence.
Had the tapes not been leaked, South Africa would probably have had a different president from the one we have today.
Under the new law, said Webber Wentzel media lawyer Dario Milo, two clear offences would have been committed by Hulley. These are: possessing the document without returning it to the authorities, for which the penalty is a fine or imprisonment for up to five years, as stated in section 44 of the Bill; and disclosing the classified information, for which the penalty is a fine or imprisonment of up to five years, as stated in section 43.
By implication, the tapes would probably not have reached the NPA or the media.
The Browse mole report
The Browse mole report was written in 2006 by former Scorpions investigator Ivor Powell. It was labelled “top secret” and contained allegations that Zuma was receiving funding and support from Angolan President Jose Eduardo dos Santos and Libyan leader Muammar Gaddafi, who were supporting his drive to become president.
The report also alleged regional military support for a pro-Zuma coup, if necessary. There was mention of Zuma having oil interests in Angola and of Angolan agents having infiltrated South African intelligence. It was handed to former national director of public prosecutions Vusi Pikoli by Leonard McCarthy, who was the head of the Scorpions.
In 2007 it was faxed to Cosatu anonymously and from there it made its way to the media, where it was first reported in Business Day.
When it became public several attempts were made to discredit it. Instead of investigating the allegations, efforts were made to discredit the sources of the report as so-called “information peddlers”.
Again, Milo said, the publisher would have been violating sections 43 and 44 of the Bill by possessing the document without returning it to the authorities, for which the penalty is a fine or imprisonment for up to five years; and disclosing the classified information, for which the penalty is a fine or imprisonment of up to five years.
“In addition, depending on how they are interpreted, and the circumstances, a number of other, even more serious criminal offences could have been committed,” he said.
“In this particular story, receiving state information that is classified top secret unlawfully, when a person knows ‘or ought reasonably to have known’ that it would directly ‘or indirectly’ benefit a foreign state, the penalty here is imprisonment for up to 25 years.”
Nepotism in the CIU
In October last year the Sunday Independent published a story about mismanagement, corruption and nepotism in the police’s Crime Intelligence Unit.
The newspaper quoted internal police documents that said “a dynasty like the one alleged in the British Intelligence Service is created — it looks after itself and family interests through state resources. Meetings are scheduled in comfortable hideouts at state costs, only to find that it was a family or friends’ outing.”
The following week the newspaper tried to publish a story on nepotism in the unit. It had been in possession of documents that gave detailed information about family members of high-ranking officials in the unit being appointed to senior positions. But before the story was published, the Sunday Independent was forced to hand the documents over to the police.
It wrote that week that an “interdict application was brought by lawyers for Police Minister Nathi Mthethwa, national commissioner Bheki Cele and head of crime intelligence Richard Mdluli, late on Friday night and was summarily granted — What we are not able to tell you this weekend, dear reader, is that xxx were employed in an irregular process that xxx because xxx manipulated it.
“The gagging order prohibits this newspaper from publishing any details on advertisements and appointments made in the unit.”
According to Milo, “this story has the same ‘failure to report possession’ and ‘disclosure’ offences under sections 43 and 44. So the publishers would be criminalised, without a public interest defence, and could not only have been interdicted on that basis but had criminal proceedings instituted against them.”
In 2005 National Intelligence Agency (NIA) director Billy Masetlha launched the secret Project Avani to assess and evaluate the effect the presidential succession debate was having on the political stability of the country. He did this without informing Ronnie Kasrils, who was minister of intelligence at the time.
The creation of “hoax emails” formed part of Project Avanti. These were leaked to the ANC in 2006, which resulted in the inspector general of intelligence, Zolile Ngcakani, commissioning a report on the authenticity of the emails.
The report said the emails were introduced into the intelligence collection system of the NIA and had been artificially constructed to resemble correspondence among senior government officials. They were made to sideline political opponents and create a climate of political conspiracy.
After the hoax emails were leaked to the ANC the Mail & Guardian managed to access them and published excerpts. The M&G also accessed internal correspondence between the NIA and Ngcakani. Masetlha was subsequently fired by Mbeki.
Milo said that aside from committing the offences under sections 43 and 44 of the Bill by possessing and disclosing the classified information, the publishers would also have committed a further offence by possessing documents relating to state security.
“Here, in addition, there is the section 49 offence of the ‘disclosure of the state security’ matter, which is classified information relating to the intelligence agencies or which relates their functions,” said Milo. “The penalty is the maximum prison sentence of 10 years, in this case.”
The arms deal
In 1998 the Cabinet announced that it would spend R30-billion buying arms from a number of foreign manufacturers. It claimed that the defence force needed an equipment upgrade and purchased, among other items, corvettes, submarines, helicopters and fighter aircraft.
The deal immediately caused an uproar, not least because of the lavish expenditure on items that the country did not need, when thousands were hungry and homeless.
In 1999 MP Patricia de Lille produced a dossier containing allegations of corruption and bribery in relation to the arms deal and called on Parliament to investigate them.
In 2000 the M&G accessed the executive summary of an affordability study — an internal government document that considered the financial implications of the arms deal purchases.
It said: “The analysis of these risks suggests that as the expenditure level increases these risks escalate significantly. In fact, even expenditure of R16.5-billion may create a situation in which government could be confronted by mounting economic, fiscal and financial difficulties at some future point …”
It was clear from the document that Cabinet had been warned that the country could not afford the acquisitions and that Trevor Manuel was aware of the risks when he signed off the purchases as finance minister.
Then, in 2008, the M&G saw documents in possession of the Scorpions comprising financial reports and affidavits by British and South African investigators. They showed that British defence company BAE Systems paid R1.73-billion in “commissions” to South African agents.
The documents disclosed that Fana Hlongwane, who was special adviser to the late defence minister, Joe Modise; Zimbabwean businessman John Bredenkamp and others received payments in return for interventions in favour of BAE Systems’ bid.
In this case the M&G journalists could have been arrested and subject to either a fine or imprisonment of up to five years for possessing and disclosing the information.
The passing of the Protection of State Information Bill came as no surprise, raising the threat to media freedom. View our special report.