The Sunday Times journalists who reported on suspended national police commissioner Bheki Cele signing off on a dodgy R26-million World Cup tender would have faced jail under the Protection of State Information Bill, parliamentarians heard on Tuesday.
“If the Bill had been enforced and documents had been classified under the Bill, the journalists would be facing jail sentences,” media lawyer Dario Milo said on behalf of the South African National Editors’ Forum (Sanef).
Milo told MPs in the ad hoc committee on the Bill that, were the documents that informed the article classified, an offence would have been triggered if the act had been signed into law by President Jacob Zuma.
The journalists would have been prosecuted under clause 43, a disclosure offence, and clause 44, which dealt with possession of classified documents.
“What the journalists would have to do, guided by the Bill, is say to their source that we can’t publish this information. We have to take documents to the nearest police station and return [them], and we are going to have to ask for the documents under clause 19, and wait for that to unfold.
“After the court battles, we may be able to publish the information,” he said.
The newspaper reported that Cele allegedly signed a R26-million contract for the accommodation of 1 280 police officers during the 2010 Soccer World Cup.
The contract was awarded to Thoshan Panday, the owner of Goldcoast Trading, and was reportedly not put out to tender.
Officials had apparently claimed that there was no time to advertise the bid.
Treasury rules state that all government contracts worth more than R500 000 should be put out to tender.
However, if the documents had been classified to hide corruption, that too would be an offence under the Bill, said Milo. That was right, he said.
It was “a pretty serious consequence” to have the offences without a public interest counterbalance defence, Milo said.
He said Sanef was proposing a more flexible public interest override when classified documents were requested.
A public interest defence would signal a firm commitment to openness and transparency in democracy.
“We would say in principle that the public interest defence has to be there,” he said.
Sanef also recommended that people who repeated information should not be punished.
“We have a number of South African cables published on Wikileaks which the media in South Africa published.
“If the Bill was enforced, they couldn’t do that without risking breaching some of the criminal prohibitions.”
Sanef chairperson Nic Dawes told the committee that the insertion of a public interest clause in the Bill would not give carte blanche to irresponsible journalism.
“We are here because we think the National Council of Provinces can take the final steps in making sure the bill is an instrument that keeps our democracy safe.”
South African Human Rights Commission deputy chairperson Pregs Govender told the committee that information was central to building a human rights culture.
Pushing for amendments
Earlier, the Democratic Alliance (DA) said the ANC could not fool South Africans into thinking there was broad support for the Bill.
At a recent public meeting in Khayelitsha in Cape Town, the DA, along with all opposition parties in Parliament, committed itself to continue challenging the draft legislation in its current form and to push for significant amendments, DA spokesperson Alf Lees said.
The DA’s stance was emboldened by the objections about the Bill raised by a vast number of civil bodies, media institutions and members of the public arguing that the legislation infringed on the rights of individuals, posed a threat to media freedom and undermined the fight against corruption.
“Research conducted by the DA suggests that only 4% of South Africans support the Bill, which further necessitates comprehensive amendments to ensure that the Bill is aligned with our Constitution and the values of a democratic society,” Lees said.
With the significant and clear backing of the public, all opposition parties, state organs such as the Public Protector and the South African Human Rights Commission, as well as various civil society groups and media bodies, the DA would push for these amendments.
These included a public interest defence, a strengthened public interest override, a sufficiently limited definition of “national security”, and a review of sections pertaining to almost all offences, such as the possession and disclosure of classified information.
“The ANC members of the ad hoc committee must heed the mass opposition to the Bill along with the continued calls for a public interest defence and make the necessary changes to the legislation demanded by South Africans,” Lees said. — Sapa
The passing of the Protection of State Information Bill came as no surprise, raising the threat to media freedom. View our special report.