The South African National Editors' Forum welcomes remarks by Deputy President Kgalema Motlanthe suggesting that a "public interest defence" could be inserted into the Protection of State Information Bill, and that the controversial law would not be "rammed through" parliament.

At a meeting with the parliamentary Press Gallery Association the Deputy President told journalists there may be a "meeting point" over such a public interest defence provided it not undermine the purpose of the Bill.

In submissions to parliament Sanef and other stakeholders have argued that a carefully formulated public interest defence against criminal liability for the disclosure of state secrets would not be a carte blanche for journalists, or place them above the law, rather it would set out carefully defined grounds for disclosure of classified information where  it revealed evidence of significant incompetence, criminality, wrongdoing, abuse of authority or hypocrisy on the part of government officials.

Indeed, a detailed definition has been provided to parliament which we believe provides for many of the issues that could be raised for such a defence to operate firmly within the Bill's stated aims. It reads as follows.

(1) No person is guilty of an offence ... if that person acts in the public interest.

(2) A person acts in the public interest if the person has reason to believe that the classified information concerned shows or tends to show one or more of the following:

(a) that a criminal offence or breach of the law has been, is being or is about to be committed;

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which that   person is subject;

(c) that a miscarriage of justice has occurred, is occurring or is likely to occur;

(d) that the health or safety of individual has been, is being or is likely to be endangered;

(e) that the environment has been, is being or is likely to be damaged;

(f) that a public safety risk exists;

(g) that gross incompetence, mismanagement or impropriety on the part of any person has occurred;

(h) that an unlawful act, inefficiency or administrative error is being promoted;

(i) that an undue advantage is being given to anyone in a competitive bidding process;

and

(j) that the public is being misled by an action or statement of another person.

Of course it would be up to our courts to adjudicate whether disclosure by journalists or other citizens met these clear standards, or not.

Sanef believes this approach is consistent with the ambitions set out in the preamble to the Bill, which include "RECOGNISING the importance of information to the national security ...ACKNOWLEDGING the harm of excessive secrecy; AFFIRMING the constitutional framework for the protection and regulation of access to information; DESIRING to put the protection of information within a transparent and sustainable legislative framework; And AIMINGto promote the free flow of information within an open and democratic society without compromising the security of the Republic".

We look forward to further progress in ensuring that this bill is a democratic instrument for the management of sensitive information, rather than a tool to suppress the free exchange of information and ideas that is central to our constitutional dispensation.

Statement issued by Mondli Makhanya, SANEF Chairperson, November 11 2011

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