LEGAL OPINION

[Confidential]

TO : Mr. M. Xaso Secretary to the National Assembly

DATE : 30 April 2013

SUBJECT: Legal Opinion on the possible referral, to the Joint Standing Committee on lntelligence, of the Department of Public Work's Task Team Report on the Security Upgrade at the Private Residence of the President

1. You requested our Office to advise urgently on the possible referral, to the Joint Standing Committee on lntelligence, of the Department of Public Work 's Task Team Report on the Security Upgrade at the President's private residence . You further advised that the Department of Public Work's Task Team Report has been classified.

2.  lt is to be noted that the President's private residence has been declared a National Key Point in terms of section 2(1) of the National Key Points Act, 1980 (Act No. 102of1980).

3. In my view the legality of the referral, to the Joint Standing Committee on lntelligence (hereinafter referred to as "the JSC I"), of the Department of Public Work's Task Team Report on the President's Private Residence (hereinafter referred to as the "Departmental Report") is dependent on the mandate of the JSCI and the provisions of the lntelligence Services Oversight Act, 1994 (Act No. 40 of 1994), since the latter is a creature of statute and can only exercise the powers and perform the functions in terms of its enabling legislation. lt is further dependant on the nature and extent of the Departmental Report and the National Assembly 's obligation in terms of section 59(1) (b) and (2) of the Constitution .

Joint Standing Committee on lntelligence

4. Section 199(8) of the Constitution provides that:

To give effect to the principles of transparency and accountability , multi­ party parliamentary committees must have oversight of all secu rity services in a manner determined by national legislation or the rules and orders of Parliament.

5. The JSCI is one of the parliamentary committees envisaged in section 199(8) of the Constitution and is established in terms of section 2 of the lntelligence Services Oversight Act, 1994 (hereinafter referred to as "the Oversight Act'') to perform the oversight functions :

5.1  in relation to the intelligence and counter-intelligence functions of the Services , which include the administration, financ ial management and expenditure of the Services; and

5.2  in respect of the administration, financial management and expenditure of the lntelligence Services Entities, and report to Parliament.

6. Service is defined in the lntelligence Services Oversight Act, 1994 to mean "the Agency, the South African Secret Service, the lntelligence Division of the National Defence Force and the lntelligence Division of the South Afr ican Police Service".

7. One of the JSCl's functions in terms of section 3(h) of the Oversight Act is "to consider and make recommendations regarding any matter falling within the purview of this Act and referred to it by the President , any Minister responsible for a Service or Parliament".

Departmental Report

8. I am in an unenviable position, in that I am required to advise on a report that I have not had sight of. However, the brief background to the matter coupled by my security knowledge has enabled me to formulate a view on the legality of a possible referral to the JSCI of the Departmental Report.

9. lt would appear that a project was initiated to upgrade the security at the President's private residence , which had been declared a National Key Point. In my understanding , part of the project scoping would have entailed a security assessment and needs analysis at the President's residence conducted by the Services, in order to determine the nature and type of the security upgrade . lnvariably the architectural plan of the President's private residence would have been a critical component of this assessment. In my view the security assessment conducted at the President's private residence would have been central to the development of the Terms of Reference for the procurement of the services that were to follow . The secur ity assessments would have been conducted by security services of the Republic.

1O. In my view therefore any report on an investigation conducted on the security upgrades at the President's private residence would , of necessity , contain security information on matters such as the architectura l plan of the residence. The President is the commander-in-chief of the Defence Force, thus in my view an architectural plan of his residence is a matter of national secur ity that should not be made public.

Constitutional obligation of the National Assembly

11. Section 59 of the Constitution provides that:

(1) The National Assembly must - (a) ....

(b) conduct its business in an open manner, and hold its sittings, and those of its committees, in public, but reasonable measures may be taken -

(i) to regulate public access, including access of the media, to the Assembly and its committees ; and

(ii) to provide for the searching of any person and, where appropriate , the refusal of entry to , or the removal of, any person.

(2) The National Assembly may not exclude the public, including the media, from a sitting of a committee unless it is reasonable and justifiable to do so in an open and democrat ic society.

12. The default position is for the National Assembly to conduct its business in the open, unless it is reasonable and justifiable to conduct its business behind closed doors in an open and democratic society.

13. The National Assembly's obligation in terms of section 59(1) (b) and (2) of the Constitution must necessarily be read with section 16(1) of the Constitution which provides that everyone has the right to freedom of expression which includes , amongst others, the freedom to receive or impart information or ideas. Section 32(1) of the Constitution which provides that everyone has the right of access to, amongst others, any information held by the state, is another relevant constitutional provision which the National. Assembly must consider in discharging its constitutional obligation under section 59 of the Constitution. In Masetlha v President of the Republic of South Africa and Another 2008 (1) SA 566 (CC) Moseneke DCJ said the following of the requirement of the openness in our society:

[40] This systemic requirement of openness in our society flows from the very founding values of our Constitution , which enjoin our society to establish democratic government under the sway of constitutional supremacy and the rule of law in order , amongst other things , to ensure transparency, accountability and responsiveness in the way courts and other organs of state function.

[44] The better approach, 1 think is to recognise that the duster of rights that enjoins open justice derives from the Bill of Rights and that important as these rights are individually and collectively, like all entrenched rights, they are not absolute. They may be limited by a law of general application provided the limitation is reasonable and justifiable ....

14. The legal question to be determined is whether the Departmental Report or at least some parts of it fall within the purview of the Oversight Act. lf the Departmental Report or parts of it fall within the purview of the Oversight Act, then in terms of section 3(h) of the Oversight Act the Departmenta l Report may legitimately be referred to the JSCI. lf not, then the Departmental Report may not legitimately be referred to the JSCI.

15. As mentioned above security assessments would of necessity have been conducted by the Services. Part of that assessment would have included an intelligence exercise which is defined in the Oversight Act to mean "the process of gathering, evaluation, correlation and interpretation of security information, including activities related thereto, as performed by the Services".

16. Whilst 1 have not seen the Departmental Report, in view of the aforementioned, it is safe to assume that parts of the Departmental Report might contain intelligence information. For this reason alone, 1 am of the view those parts of the Departmental Report dealing with intelligence would fall within the purview of the Oversight Act. Therefore in terms of section 3(h) of the Oversight Act Parliament may refer the Departmental Report to the JSCI only in respect of those parts of the Departmental Report falling within the purview of the Oversight Act.

17.1n terms of section 5(1) of the Oversight Act the JSCI is obliged to conduct its functions in a manner that is consistent with the protection of national security. lt is common cause that the JSCI conducts its business behind closed doors and its members have been vetted . Referring the Departmental Report would ensure that those aspects of the Departmental Report that fall within the purview of the Oversight Act are dealt with by persons with the required security clearance and consistent with the classification level of the Departmental Report.

18. One point that needs to be addressed is the classification of the Departmental Report. In theMasetlha v President of the Republic of South Africa case Moseneke DCJ said at para [54]:

1 agree with the submission made by Independent Newspapers that ordinarily, the starting point is that court proceedings and so too court records must be open to the public. A mere classification of a document within a court record as "confidential" or "secret" or even "top secret" under the operative intelligence legislation or the mere ipse dixit of the minister concerned does not place such documents beyond the reach of the courts. Once the documents are placed before a court, they are susceptible to its scrutiny and direction as to whether the public should be granted or denied access.

19. In my view what Moseneke DCJ said, in respect of the court's handling of classified documents, is equally applicable to the National Assembly in view of its constitutional obligation in terms of section 59(1) (b) and (2) of the Constitution . lt would be prudent of the National Assembly to scrutinise classified documents submitted to it to determine whether the public should be granted or denied access.

20. lt is also safe to assume that some parts of the Departmental Report might not fall within the purview of the Oversight Act, and the JSCI would therefore not be an appropriate parliamentary committee to deal with such parts of the Departmental Report. In my view the JSCI would be acting beyond its mandate if it were to deal with matters that do not fall within the purview of the Oversight Act. Secondly, information belonging to the public domain might inappropriately be dealt with behind closed doors. In my view such a practice would offend the National Assembly's obligation to conduct its business in an open manner in terms of section 59(1) of the Constitution .

21. In Masetlha v President of the Republic of South Africa case Moseneke DCJ said the following in dealing with competing constitutional rights and interests:

There may be instances where the interests of justice in a court hearing dictate that oral evidence of a minor or of certain classes of rape survivors or confidential material related to police crime investigation methods or to national security be heard in camera. In each case. the court will have to weigh the competing rights or interests carefully with the view to ensuring that the limitation it places on open justice is properly tailored and appropriate to the end it seeks to attain. In the end, the contours of our constitutional rights are shaped by the justifiable limitation that the context presents and the law permits. [My emphasis]

22. In the instant case the National Assembly must, in the words of Moseneke DCJ, weigh the competing rights or interests carefully with a view to ensuring that the limitation it places on open justice is properly tailored and appropriate to the end it seeks to attain. The National Assembly must balance its obligation under section 59 of the Constitution, its obligation to handle security information or matters of national security sensibly with the provisions of sections 16 and 32(1) of the Constitution.

23. In what follows 1 recommend what, in my view, would be consistent with the National Assembly's constitutional obligation in terms of section 59(1) (a) of the Constitution, considering sections 16 and 32 of the Constitution .

24. Firstly, that the National Assembly refers the Departmental Report to the JSCI to consider the Departmental Report for the purpose of consider ing those aspects of the said report that fall within the purview of the Oversight Act and report thereon to the National Assembly. Secondly, to facilitate the expungement from the Departmental Report those aspects of the report that

must of necessity be kept secret. Thirdly, report to the National Assembly those aspects of the Departmental Report that fall outside the purview of the Oversight Act , so that the National Assembly may refer to the relevant parliamentary committee to deal with those aspects of the report not falling within the purview of the Oversight Act to be dealt with in public. Such a committee might well be the PC on Public Works .

Mr. N Vanara

Senior Parliamentary Legal Adviser

Source: Democratic Alliance

Click here to sign up to receive our free daily headline email newsletter