Statements that no country has a public interest defence, and that those proposing one are foreign agents, are to be investigated by Public Protector Thuli Madonsela.
Madonsela said at a press conference in Pretoria on Tuesday that she had been asked by the South African National Editors’ Forum (Sanef) to investigate the statements.
State Security Minister Siyabonga Cwele said on November 16, when the controversial Protection of State Information Bill was being debated in Parliament, that no other country in the world allowed those accused of divulging state secrets to argue in court that they had done so in the public interest.
He told Parliament: “We have looked at international best practice and there is no country which practises such reckless practice.”
Madonsela said Sanef had asked her to investigate the accuracy of this statement.
If the statement was not true, she would investigate whether it “was a bona fide mistake or it was an intention to mislead”.
Sanef has also asked her to investigate whether a statement made by Cwele, that those who opposed the Bill were proxies funded by foreign spies, was protected by parliamentary privilege and had in fact been said in Parliament.
In his speech prepared for delivery to the National Assembly and distributed to the media prior to November 16, Cwele said: “The ANC government may never allow such undermining of our national security to continue. We have, through sections 36 to 38 of the Bill, made espionage a serious offence that will be a deterrent to both foreign spies and their collaborators.
“However you won’t find foreign spies openly marching in the streets of Cape Town complaining that we are removing their easy access to our sensitive information, but they will fund their local proxies to defend their illegality.”
If the Bill becomes law, the media will not be able to claim it acted in the public interest if it violates, or is party to the violation of a law, or publishes classified information to substantiate a report on, for example, government malpractice or corruption.
The Bill was passed by the National Assembly with 229 votes in favour, 107 against and two abstentions. It still has to move through the National Council of Provinces (NCOP) before it can be signed into law by President Jacob Zuma.
If passed in its current form, it is likely to be challenged in the Constitutional Court.
Speaking at the same press conference, Sanef chairperson Mondli Makhanya said Sanef would be making a “detailed submission” to the NCOP’s ad hoc committee that would review the Bill. He said Sanef had “started seeking counsel” for a constitutional challenge, should the Bill ultimately become law.
He rejected the notion that the NCOP would merely “rubber stamp” the Bill.
“As Sanef we are going to treat this process as a genuine process.”
Sanef leaders and Madonsela held a two-hour meeting prior to the press conference to discuss the Bill.
Asked if the NCOP would simply abide by the National Assembly’s decision to pass the Bill, Madonsela said: “I don’t think the NCOP would just rubber stamp. The NCOP will not want to find itself in a situation where the Constitutional Court says you didn’t apply your mind in this particular case.”
She said several organisations had contacted her office expressing concerns about the bill, with the two primary concerns being the lack of a public interest defence and the length of jail terms. She said not only media organisations had contacted her office.
She believed the Bill would “constrain” institutions such as her office and limit the effectiveness of the anti-corruption hotline (0800-701-701), launched by the Public Service Commission in September 2004.
Madonsela said while there were concerns over the lack of a public interest defence, she conceded the state had raised a legitimate concern over what happened when a public interest defence was not upheld by the court after sensitive information had been released to the media.
“What do you do now, because that is milk that has already been spilled?”
She said such information could be so sensitive that it might even compromise lives.
In presenting the bill to Parliament on November 16, Cwele said: “If the court finds there is no such public interest after such disclosure is made, the state will have no recourse as the harm will have been done as a result of such disclosure.” — Sapa