A legal battle is brewing between Independent Newspapers and the police.
The South African Police Service(SAPS) is reportedly demanding the group to hand over material related to intercepted calls involving national police commissioner Riah Phiyega.
According to the Sunday Tribune, the police have threatened legal action against the group if it fails to hand over the material.
The SAPS is relying on the Protection of Information Act (PIA) of 1982, which has been replaced by the Protection of State Information Bill, to curb the release of “classified” information.
The Protection of State Information Bill (POSIB), also known as the Secrecy Bill, was drafted to replace the Protection of Information Act (PIA) of 1982.
President Jacob Zuma sent POSIB back to Parliament, and MPs later adopted it after making minor changes and correcting grammatical errors.
It will probably be challenged in the Constitutional Court.
No denying abuse of PIA
Government does not deny that the “Secrecy Bill’s” predecessor, PIA, was open to abuse by the apartheid regime, which used it to hide state information at will and jail those who disseminated “classified” information. This is why it needed to be replaced.
In a 2010 press release by the State Security Agency (SSA), PIA was acknowledged as in dire need of a replacement.
“A review of the Protection of Information Act, 1982 (Act No. 84 of 1982), presently regulating the protection from disclosure of certain information, showed that the Act is outdated, due to the fact that it contains some provisions that are contrary to the Constitution and other legislation in that it contains legal presumptions which are deemed to be unconstitutional. It also does not provide sufficient protection for the State against information peddlers and current trends concerning espionage.”
But the draconian nature of the PIA has not stopped post-democratic state agencies from treating it as if it were legitimate.
A letter to Independent Newspapers from the police, published in the Sunday Tribune, states: "You are hereby demanded to provide the division: crime intelligence the original information and all copies." It relies on PIA of 1982.
The demand comes in the light of an investigation into Phiyega by police watchdog the Independent Police Investigative Directorate(IPID).
Phiyega investigation
This week IPID said it would probe claims against Phiyega that she allegedly tipped off Western Cape police commissioner Lt-Gen Arno Lamoer about investigations against him.
According to reports, Phiyega told Lamoer on three occasions that she was aware he was under investigation.
The Sunday Independent reported previously that their telephone conversations had been legally recorded by crime intelligence operatives monitoring Lamoer's calls. He was allegedly associated with a Cape Town drug-dealer and well-known businessman.
Phiyega's spokesman Lt-Gen Solomon Makgale told the Sunday Tribune: "We issued the letter of demand to exercise our legal rights".
The letter, sent on behalf of crime Intelligence divisional commissioner Major-General Bongiwe Zulu, threatens legal action against all Independent Newspapers titles who reported on the matter and who do not hand over their material, which he claims they obtained unlawfully.
As the M&G reported, government regularly uses the old PIA legislation, both in its attempts to stop “classified” information from being publicly released and in its rejection of requests for information.
Government's numerous refusals to requests for information under the Promotion of Information Act of 2000 (Paia) are also littered with references to the PIA classifications, in spite of the fact that the PIA will be repealed as soon as the secrecy Bill is enacted.
In a piece written in 2003 for the Centre for the Study of Violence and Reconciliation independent researcher Dr Dale McKinley described the PIA: "As could be expected, the approach to the protection and dissemination of information contained in the PIA is informed by the demands of an authoritarian and secretive apartheid state.
As such, the provisions of the PIA for classification and de-classification of government information run completely against the grain of the openness and transparency of such information thatinforms Paia," McKinley said.
In any event, Independent Newspapers' attorney Pamela Stein said the information that the police were looking for was not in their possession.
"Our client listened to a taped conversation. Our client was not provided with acopy of the contents of the tape recording in any form," Stein said. -–Sapa, Sarah Evans