Author: Gary Moore

Date: 10 October 2017

The Protection of Information Act, 1982[1] declares that it is a statute to provide for the “protection from disclosure of certain information.”[2]

The Act replaced[3] the Official Secrets Act, 1956.[4] It was amended on six occasions between 1994 and 2013, by intelligence services and state-security laws.[5] The Act is administered by the Department of Justice and Constitutional Development.[6]

The Act declares that any person who approaches, inspects, passes over, is in the neighbourhood of or enters any prohibited place for any purpose prejudicial to the security or interests of the Republic, is guilty of an offence, and liable on conviction to imprisonment for[7] 20 years.[8] (It is assumed this is not a strict-liability offence.[9])

The Act defines a prohibited place as—

Any work of defence belonging to or occupied or used by or on behalf of the government, including any—

factory, dockyard, camp, ship, vessel or aircraft;[10]

telegraph, telephone, radio or signal station or office; and

place used for building,[11] keeping or obtaining armaments or any model or document relating thereto;

any place where armaments, or any model or document relating thereto, is[12] being built,[13] kept or obtained under contract with or on behalf of the Government or of the government of any foreign State;[14]

any place or area declared[15] to be a prohibited place.[16]

The President may[17] declare any place or area to be a prohibited place if he is satisfied that information with respect to that place or area, or the loss, damage, disruption or immobilisation thereof, could be of use to a foreign State or a hostile organisation.[18]

A hostile organisation means—

any organisation declared by[19] Act of Parliament to be an unlawful organisation; and

any association of persons[20] declared by the President to be a hostile organisation.[21]

The President may[22] declare any association of persons[23] outside the Republic to be a hostile organisation if he is satisfied that the association[24] incites[25] any person[26] to commit, in the Republic, an act of violence for any purpose prejudicial to the security or interests of the Republic.[27]

The provisions violate the Rule of Law:

The provision that a person commits an offence[28] if he “approaches,” or “passes over,” or “is in the neighbourhood of” any prohibited place[29] is unduly vague: It is unclear what degree of proximity to the place would render a person guilty of approaching, passing over or being in the neighbourhood of the place.

The provision violates the principle of the Rule of Law that a law should so far as possible be intelligible, clear and predictable. If everyone is bound by the law, they must be able without undue difficulty to find out what it is,[30] and the answer when given should be sufficiently clear that a course of action can be based on it.[31]

The provision[32] states that a person who approaches, etc.[33] a prohibited place for “any purpose prejudicial to” the[34] “interests” of the Republic commits an offence.

These aspects of the provision are also vague:[35] It is not clear what the interests of the Republic are, or what purposes would be prejudicial to them. These aspects similarly violate the Rule of Law principle that a law should[36] be intelligible, clear and predictable.[37]

The definition of a prohibited place, as including[38] any “factory” or other work of defence used “on behalf of” the government, or any place used for “keeping … any … document” relating to armaments, is likewise unduly vague:

It is unclear which features or characteristics would serve to distinguish or identify for the benefit of the general public a factory being used on behalf of the government or a place used for keeping documents relating to armaments. The provision likewise violates the Rule of Law principle that a law should be intelligible, clear and predictable.

The provision that[39] the President may declare any place[40] to be a prohibited place if he is “satisfied” that information with respect to that place[41] or the loss[42] thereof “could” be of “use” to a foreign State,[43] confers on the President an unduly subjective discretion, and contains no objective criteria to guide him in exercising that discretion.

This violates the principle of the Rule of Law that discretion should[44] be narrowly defined. The broader a discretion, the greater the scope for subjectivity and hence for arbitrariness, which is the antithesis of the Rule of Law.[45]

The provision that the President may declare any association of persons[46] outside the Republic to be a hostile organisation if he is “satisfied” that the association[47] incites[48] any person[49] to commit, in the Republic, an act of violence for any purpose prejudicial to the security or “interests” of the Republic similarly violates the Rule of Law:

It too confers on the President an unduly subjective discretion, and contains no objective criteria to guide him in exercising that discretion, violating the Rule of Law principle that discretion should be narrowly defined.

It too is unduly vague, in that it is unclear what the interests of the Republic are, or what purpose would be prejudicial to them, violating the Rule of Law principle that a law should be intelligible, clear and predictable.

The Act states that, in any prosecution under the Act on a charge of committing an act for a purpose prejudicial to the security or interests of the Republic, it shall, if, from “the circumstances of the case” or “the conduct of the accused,” it “appears” that his purpose was a purpose prejudicial to the security or interests of the Republic, be presumed, unless the contrary is proved, that the purpose for which that act has been committed, is a purpose prejudicial to the security or interests of the Republic.[50]

This presumption creates a so-called “reverse onus” of proof.[51] The Constitution declares that every accused person has the fundamental right to a fair trial, which includes the right[52] to be presumed innocent, remain silent, and not testify during the proceedings.[53] A statutory reverse-onus provision limits this right.[54] But fundamental rights may be limited,[55] and some legal presumptions reversing the onus of proof may be justifiable.[56] A statutory reverse-onus provision may be justifiable, if the risk and consequences of guilty persons escaping conviction because of categorical adherence to a presumption of innocence outweigh the risk and consequences of erroneous conviction produced by a statutory presumption against the accused.[57]

However, this reverse-onus provision, which presumes[58] that an accused’s purpose was a purpose prejudicial to the security or interests of the Republic if it so appears,[59] is arguably not justifiable, because it is based on mere appearance from circumstances or conduct, and is assessable in light of the vague criterion of the “interests of the Republic.”

The Act also contains other reverse-onus provisions,[60] which relate to particular provisions of the Act,[61] and which may arguably also be unjustifiable.

In 2010 Parliament passed a Bill[62] to repeal[63] the Act. The Bill was highly controversial and was subject to frequent revision.[64] The President in 2013 declined to sign the Bill, and referred it back to the National Assembly. It was reported in 2015[65] that the Bill was under consideration.[66] The Bill remains unsigned.[67]

[1] Protection of Information Act 84 of 1982.

[2] And to provide for matters connected therewith. Protection of Information Act, Long title.

[3] Protection of Information Act s 15 read with Schedule (Laws repealed).

[4] Official Secrets Act 16 of 1956.

[5] Intelligence Services Act 38 of 1994, Justice Laws Rationalisation Act 18 of 1996, Intelligence Services Act 65 of 2002, Electronic Communications Security (Pty) Ltd Act 68 of 2002, General Intelligence Laws Amendment Act 52 of 2003, General Intelligence Laws Amendment Act 11 of 2013.

[6] Department of Justice and Constitutional Development website: Resources: Legislation: Statutes (Acts): “Acts/statutes administered by the Department.” http://www.justice.gov.za/legislation/acts/acts_full.html (accessed 26 Sep 2017).

[7] A period not exceeding.

[8] Protection of Information Act s 2 (Prohibition of certain acts in relation to prohibited places).

[9] The legislature is presumed not intend innocent violations of statutory prohibitions to be punishable, absent clear and convincing indications to the contrary. S v De Blom 1977 (3) SA 513 (A) 532B-C.

Penal statutes are interpreted benevolently (in favorem innocentia) if there is ambiguity. Gracie et al, Law of South Africa vol 11 3 ed “Criminal law” SV Hoctor par 109.

The general rule is actus non facit reum nisi mens sit rea (the act does not make (the doer) guilty unless the mind is guilty). S v Sayed 1981 (1) SA 982(C) 986E-F.

In deciding whether mens rea (a guilty mind) is required as an element of the offence, the considerations to be taken into account are: (i) The language and context of the prohibition, (ii) the scope and object of the statute, (iii) the nature and extent of the penalty, and (iv) the ease with which the prohibition could be evaded if reliance could be placed on the absence of mens rea. S v Arenstein 1964 (1) SA 361 (A) 365D-E.

[10] Or arsenal, military establishment or station, or camp.

[11] Or repairing or making.

[12] Sic.

[13] Or repaired or made.

[14] The statute refers to a contract with or on behalf of the Government “of” the government “or of” any foreign State.” It should no doubt refer instead to the Government “or” the government “of” any foreign State.”

[15] The President may, for the purposes of the Act, by proclamation in the Gazette declare “any place or area” to be a prohibited place if he “is satisfied” that information with respect to that place or area, or the loss, damage, disruption or immobilization thereof “could be” of use to “a foreign State” or a hostile organization.

[16] Protection of Information Act s 1(1) svv “prohibited place” paras (a)(i), (ii) and (ii), (b) and (c).

[17] By proclamation in the Gazette.

[18] Protection of Information Act s 14(a).

[19] Or under.

[20] Or any movement or institution.

[21] Protection of Information Act s 1(1) svv “hostile organisation.”

[22] By proclamation in the Gazette.

[23] Or movement or institution.

[24] Of persons, or the movement or institution.

[25] Or instigates, commands, aids, advises, encourages or procures.

[26] In the Republic or elsewhere.

[27] Protection of Information Act s 14(b).

[28] Protection of Information Act s 2.

[29] For any purpose prejudicial to the security or interests of the Republic.

[30] Even if that means taking advice (as it usually will).

[31] Lord Bingham (then Senior Law Lord), “The Rule of Law” (Sixth Sir David Williams Lecture 2006, Centre for Public Law, Univ. of Cambridge), first sub-rule. Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] 1 All ER 810 (HL) 836; R v Goldstein, R v Rimmington [2005] UKHL 63 par [33].

[32] Protection of Information Act s 2.

[33] Passes over, is in the neighbourhood of, inspects or enters.

[34] Security or.

[35] Other provisions of the Act are open to the same criticism: Protection of Information Act s 3 (Prohibition of obtaining and disclosure of certain information) esp. s 3(b)(iii); s 4 (Prohibition of disclosure of certain information) esp. s 4(1)(b)(iv); s 5 (Prohibition of certain acts prejudicial to security or interests of Republic) esp. s 5(1) and (2)(a).

[36] So far as possible.

[37] See above.

[38] Inter alia.

[39] Protection of Information Act s 14(a).

[40] Or area.

[41] Or area.

[42] Or damage, disruption or immobilisation.

[43] Or hostile organisation.

[44] Ordinarily.

[45] Bingham, “The Rule of Law” (op cit), second sub-rule.

[46] Or movement or institution.

[47] Of persons, or the movement or institution.

[48] Or instigates, commands, aids, advises, encourages or procures.

[49] In the Republic or elsewhere.

[50] Protection of Information Act s 10(1) (Proof of purpose prejudicial to security or interests of Republic).

[51] It presumes an element of the crime to be proven by the prosecution in certain circumstances unless the defence disproves it.

As a rule where mens rea on the accused’s part is a pre-requisite for conviction, the State has to discharge the burden of establishing dolus (intent), or proving negligence where mens rea is required in the form of culpa (negligence). S v Evans [1982] 2 All SA 345 (C) 347.

[52] Inter alia.

[53] Constitution, 1996 s 35(3)(h).

[54] By requiring the accused to disprove an element of the crime.

[55] In terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors. Constitution s 36(1).

[56] As being rational in themselves, in requiring an accused person to prove only facts to which he or she has easy access, and which it would be unreasonable to expect the prosecution to disprove. Or there may be presumptions which are necessary if certain offences are to be effectively prosecuted, and the State is able to show that for good reason it cannot be expected to produce the evidence itself. S v Zuma and others 1995 (2) SA 642 (CC) par [41] per Kentridge AJ.

[57] S v Manamela and ano (Director-General of Justice intervening) 2000 (5) BCLR 491 (CC) par [28].

[58] Unless the contrary is proved.

[59] From the circumstances of the case or conduct of the accused.

[60] Protection of Information Act s 8 (Communication with agent proof of certain facts), s 9 (Proof that certain information may directly or indirectly be of use to foreign State or hostile organization), and s 10(2) (Proof of purpose prejudicial to security or interests of Republic).

[61] See esp. s 3 (Prohibition of obtaining and disclosure of certain information) and s 4 (Prohibition of disclosure of certain information).

[62] Protection of State Information Bill [Bill 6H of 2010].

[63] Protection of State Information Bill cl 53.

[64] As indicated by the “H” numbering of the Bill.

[65] Eyewitness News. 18 Oct 2015,

ewn.co.za/2015/10/18/Protection-of-state-information-bill-still-under-consideration .

[66] After technical changes and constitutional objections.

[67] As at time of writing.

 

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Gary Moore

Gary Moore BA LL.B. (Witwatersrand) LL.M. (UC London) is a South African lawyer and Senior Researcher at the Free Market Foundation.

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