Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
26 August 2010

Why Steven Friedman is wrong

Steven Friedman, writing in Business Day yesterday, argued that journalists do not have much to fear from the proposed Protection of Information Bill. In the process of making an excellent point, namely that those that will be the hardest hit if the Bill is passed will be ordinary citizens who wish to engage in grassroots activism, Friedman wrongly interprets the punitive provisions of the Bill and completely underestimates the possible chilling effect of the Bill on the work of journalists.

Friedman points to section 17 of the Bill to justify his argument. However, perhaps because he is not a journalist or a lawyer, he completely misreads the Bill and naively but dangerously underestimates its potential effect on the media – and perhaps on ordinary citizens. Referring to section 17 of the Bill he writes:

It stipulates that information may not be classified if the purpose is to conceal illegal acts, or “incompetence, inefficiency or administrative error” by the government. Nor can it be used to “restrict access to information in order to limit scrutiny and thereby avoid criticism” or to “prevent embarrassment to a person, organisation, organ of state or agency” or to “unlawfully restrain or lessen competition”. These qualifications will not get officials to respect the rights of citizens, particularly the poor. But they should ensure that journalists, particularly those in the commercial media, will be protected…

The protections in the bill may be ignored by officials who classify information, but they will shape the findings of the courts. And so, those with the means to challenge, in court, classifications designed to prevent media reporting on misdeeds or disadvantage private businesses will ensure that the law does nothing to them, while those who lack those means will be prevented from knowing what the government is doing. And since hiring lawyers requires money, the bill would disadvantage the poor rather than the affluent — and is more likely to make grassroots activism harder than it is to make journalism difficult.

Section 17 of the Bill states that classification decisions must be guided by the considerations stated by Friedman (along with the Orwelian consideration that “secrecy exists to protect the national interest”). This means that if a document is wrongly classified and this is challenged in court, a court can rule that the relevant official had wrongly classified the document because he or she was motivated by one of the factors mentioned by Friedman. A court will be able to do so if it found that the classification was motivated by one of the factors mentioned by Friedman and was not motivated by the need to protect the “national interest” – Also taking into account the other factors mentioned in section 17 of the Bill.

But the Bill does not merely impose criminal sanctions on those who had distributed, received or published the content of documents that have been correctly classified. Section 18, read with section 39 and 39, makes it a criminal offence for any person to possess or distribute any classified document or to publish its content – even if these were incorrectly classified.

These sections do not provide for a defence that the documents were wrongly classified. Some of the other criminal provisions prohibit only the “unlawful” possession or distribution of classified documents knowing that it could harm the state’s interest. These sections could arguably be read to include a defence that the documents were wrongly classified and that the possession, distribution or publication was therefore not “unlawful” as required by the Bill.

But the criminal offences created by sections 18, 38 and 39 prohibits any person from being in possession of a “classified record” and from disclosing the information in that record and provide for a minimum three year sentence for those who contravene this prohibition. As I read it, even the best lawyers in the world will not assist a journalist caught in possession of a classified document – even if it was classified wrongly for the reasons mentioned in section 17.

But even if I am wrong, it would almost always be impossible to prove that documents were classified for one of the invalid reasons stated in section 17 and not for one of the valid reasons stated in section 11. Because section 11 of the Bill states that any document can be classified to protect the “national interest”, which includes “all matters relating to the advancement of the public good”, the pursuit of justice, democracy, economic growth, free trade, a stable monetary system and sound international relations”, there will almost always be a valid purpose for classifying documents – alongside the ulterior purpose set out in section 17.

For example, if a document reveals massive corruption in the arms deal and is classified by an official, it could be that this was done to avoid criticism or cover up corruption. But it could just as well have been done in the “national interest” because it would have been necessary to advance  the “public good”. Surely to reveal this information would be potentially damaging to the economic growth of the country, could destabilise the monetary system, and could affect free trade with those countries from whom we had bought expensive arms.

If one is charged in terms of the provisions of this proposed Bill, one will have to show that the official classified the documents not for the valid purpose set out in section 11 but for the invalid purpose set out in section 17.  To prove this will almost always be impossible to do. How does one prove that official X had an invalid motive for classifying a document when that official maintains that he or she classified the document for the valid purpose mentioned in section 11? 

Unless a very brave official comes froward to testify that a fellow official had told him or her that the document was classified for an ulterior purpose, one will have to assume that the document was classified for one of the reasons mentioned in section 11. Section 17 is therefore little more than a paper guarantee that will have little effect.

But even if I was wrong about this too, one will have to ask which journalist would be brave enough (or stupid enough) to risk his or her freedom on the off-chance that he or she would be able to convince a court that the documents were not classified for the valid purpose in section 11 but for the invalid purpose set out in section 17? If the journalist failed to convince the court that the document was wrongly classified (which would be rather difficult to do given the extraordinarily broad  discretion given by section 11 to classify documents), that journalists would have to spend three years in jail. (One assumes even a sudden case of life threatening high blood pressure would not allow the journalists to return to the golf course.)

The Bill, if passed, will therefore no doubt have a chilling effect on the media and will limit the ability of the media to report on ineficiency, corruption and maladministration.

This is therefore one of those cases where the interests of journalists and the media on the one hand and the interests of grassroots activists (indeed, all 45 million South Africans who are not politicians or government officials) on the other, dovetail completely. Ordinarily, grassroots activists do not run around with classified documents which then help them to hold the politicians to account for the service delivery failures or for corruption. Such activists will therefore seldom be the target of the Bill and will seldom face criminal sanction in terms of this Bill. They will therefore have less to fear from the criminal sanctions of the Bill than journalists.

This does not mean that the Bill is not an utter disaster for active citizenship and for the work done by grassroots activists. The problem is not that grassroots activists will be jailed because they have no access to good lawyers when they are caught in posession of classified documents. Rather the problem is that grassroots activists will not get access to the information they need in the first place because the media won’t publish it.

Such activists mostly rely on the media for information which they can then use to take action and to hold the officials or politicians to account. If the media is intimidated by the Bill and stops investigating matters because of a fear of imprisonment, grassroots activists will have very little chance of getting access to the information needed. Both journalists and ordinary citizens therefore have a lot to worry about if this Bill ever becomes law.

That is why I believe it represents a fundamental attack on our democracy.

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