Secrecy bill ‘protects’ Transnet

Jail sentences threaten us all (FTW reporters and ‘whistleblowers’ in the freight industry alike) if we attack any of the parastatals – no matter how justified we feel it to be. Depending on how it is interpreted, the Protection of Information Bill (POI) – commonly known as the “Secrecy Bill” – may render us all criminals with sentences of up to 25 years’ imprisonment for criticism of the ports or railways if we use inside information that they classify as ‘secret’. This because the Bill allows for ‘national interest’ to be invoked, but provides sufficient latitude of interpretation of what constitutes the ‘national interest’, to allow unscrupulous use of this measure, according to a Wits Uni study. “It remains silent on the ‘public interest’,” it added. “As the Bill stands, only information evidencing a substantial contravention of the law or an imminent and serious public safety risk can be considered for declassification in the public interest.” And the promulgation of the act is just around the corner. The National Assembly passed the POI Bill last week. In the second stage, it will pass through the National Council of Provinces within months. This is often considered to be merely a rubber-stamping of Parliament’s decision, although Business Unity SA hoped that it might give room for possible amendments to the Bill. The POI gives broad powers to the government to classify almost any information involving an ‘organ of state’ as being in the interests of national security. It prescribes penalties of up to 25 years in jail for those disclosing protected information, refusing to reveal their sources, or even attempting to uncover protected information. A lot depends on what is classified as an ‘organ of state’. With this in mind, FTW approached Quintus van der Merwe, partner at law firm Shepstone & Wylie’s maritime and trade division, for legal advice on this issue. He confirmed that it would depend largely on how the POI law was interpreted. And that definition can be found in one or more of three separate acts. In Section 239 of the Constitution Act; in the Public Finance Management Act (1) of 1999; and in Section 3 of the Municipal Finance Management Act of 2003. These, Van der Merwe said, would cover: “Any department of state, national or provincial administration, or any municipal sphere of government.” And relevant wording from the Constitution, he added, was: “Any other functionary or institution exercising a public power or exercising a public function in terms of in terms of any legislation, save for a court or judicial officer.” He described the collective effect of all the definitions in the three Acts as “very wide”, and said that they could be presumed to include a wide range of institutions. By way of example, Van der Merwe said that “Transnet clearly fell under the definition of an organ of state”. He added that certain areas in the Durban port were ‘national key points’, which also fall under the definition of organs of state – and would be sensitive to public perusal of what they classified as “secret” information.