REPUBLIC OF SOUTH AFRICA
PROTECTION OF STATE
INFORMATION BILL
(As presented by Ad Hoc Committee on Protection of Information Bill (National Assembly))
(introduced as Protection of Information Bill [B 6—2010])
(The English text is the offcial text of the Bill))
(M INISTER OF STATE SECURITY )
[B 6D—2010] ISBN 978-1-4850-0000-0
No. of copies printed ……………………………… 1 800

BILL
To provide for the protection of sensitive state information; to provide for a system
of classication, reclassication and declassication of state information; to
provide for the protection of certain valuable state information against alteration,
destruction or loss or unlawful disclosure; to regulate the manner in which state
information may be protected; to repeal the Protection of Information Act, 1982
(Act No. 84 of 1982); and to provide for matters connected therewith.
PREAMBLE
RECOGNISINGthat national security is subject to the authority of Parliament and the
national executive, as contemplated in section 198 of the Constitution;
MINDFULof the right of access to any information held by the State provided for in
section 32 of the Constitution;
ACCEPTINGthat the right of access to information is a cornerstone of our
democracy’’
ACKNOWLEDGINGin accordance with section 36 of the Constitution that the right
of access to any information held by the State may be restricted when necessary for
reasons of national security;
RECOGNISINGthe harm caused by excessive secrecy;
DESIRINGto put the protection of state information within a transparent and
sustainable legislative framework; and
AIMINGto promote the free ow of information within an open and democratic society
without compromising the national security of the Republic,
B
E IT THEREFORE ENACTED by the Parliament of the Republic of South Africa,
as follows:—
CONTENTS
Section
CHAPTER 1
DEFINITIONS, OBJECTS AND APPLICATION OF ACT
1. Denitions and interpretation
2. Objects of Act
3. Application of Act5

CHAPTER 2
GENERAL PRINCIPLES OF STATE INFORMATION
4. General principles of state information
CHAPTER 3
POLICIES AND PROCEDURES
5. Policies and procedures
CHAPTER 4
STATE INFORMATION WHICH REQUIRES PROTECTION AGAINST
ALTERATION, DESTRUCTION OR LOSS
6. Process of determining state information as valuable
7. Protection of valuable information
CHAPTER 5
SYSTEM OF CLASSIFICATION, RECLASSIFICATION AND
DECLASSIFICATION OF STATE INFORMATION
8. Conditions for classication, reclassication and declassication
9. Nature of classied information
10. Method of classifying state information
11. Classication levels
12. Authority to classify state information
13. Report and return of classied documents
14. Authority to declassify classied information
15. Maximum protection periods
CHAPTER 6
REGULAR REVIEWS, REQUEST FOR ACCESS TO CLASSIFIED
INFORMATION AND STATUS REVIEW
16. Regular reviews of classied information
17. Request for access to classied information and status review
CHAPTER 7
CLASSIFICATION REVIEW PANEL
18. Establishment of Classication Review Panel
19. Functions of Classication Review Panel
20. Constitution and appointment of Classication Review Panel
21. Disqualication from membership
22. Removal from office
23. Remuneration of members and staff
24. Meetings of Classication Review Panel3
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25. Decisions of Classication Review Panel
26. Appointment of staff
27. Accountability of Classication Review Panel
28. Reporting
CHAPTER 8
APPEALS
29. Appeal procedure
30. Application to court
CHAPTER 9
TRANSFER OF RECORDS TO NATIONAL ARCHIVES AND RELEASE OF
DECLASSIFIED INFORMATION TO PUBLIC
31. Transfer of Public Records to National Archives
32. Release of declassied information to public
CHAPTER 10
IMPLEMENTATION AND MONITORING
33. Responsibilities of Agency
CHAPTER 11
OFFENCES AND PENALTIES
34. Espionage and related offences
35. Receiving state information unlawfully
36. Hostile activity offences
37. Harbouring or concealing persons
38. Interception of or interference with classied information
39. Registration of intelligence agents and related offences
40. Attempt, conspiracy and inducing another person to commit offence
41. Disclosure of classied information
42. Failure to report possession of classied information
43. Provision of false information to national intelligence structure
44. Destruction or alteration of valuable information
45. Improper classication of information
46. Failure by head of organ of state or official of organ of state to comply with Act
47. Extra-territorial application of Act
48. Authority of National Director of Public Prosecutions for institution of
criminal proceedings
CHAPTER 12
PROTECTION OF CLASSIFIED INFORMATION BEFORE COURTS
49. Protection of classied information before courts
CHAPTER 13
GENERAL PROVISIONS
50. Reports
51. Regulations
52. Transitional provisions
53. Repeal of law
54. Short title and commencement4
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CHAPTER 1
DEFINITIONS, OBJECTS AND APPLICATION OF ACT
Denitions and interpretation
1.(1) In this Act, unless the context indicates otherwise—
‘‘Agency’’means the State Security Agency contemplated in Schedule 1 to the
Public Service Act, 1994 (Proclamation No. 103 of 1994), and includes the
National Intelligence Agency, South African Secret Service, Electronic Commu-
nications Security (Pty)Ltd (COMSEC), and the South African National Academy
for Intelligence;
‘‘archive’’means the National Archive or any archive established in terms of a
provincial law and includes an archive kept by an organ of state;
‘‘classication authority’’means the entity or person authorised to classify state
information and includes—
(a)a head of an organ of state; or
(b)any official to whom the authority to classify state information has been
delegated in writing by a head of an organ of state;
‘‘classication of state information’’means a process used to determine—
(a)the manner in which such state information may be classied in terms of
sections 11 and 8; and
(b)the level of protection assigned to such state information;
‘‘classied information’’means state information that has been classied in terms
of this Act;
‘‘Classication Review Panel’’means the Panel established under section 18;
‘‘condential information’’has the meaning assigned to it in section 11(1);
‘‘Constitution’’means the Constitution of the Republic of South Africa, 1996;
‘‘declassication authority’’means the entity or person authorised under section
14 to declassify classied information;
‘‘declassication of state information’’means the authorised change in the status
of state information from classied information to unclassied information;
‘‘department’’means a department as dened in section 1 of the Public Service
Act, 1994 (Proclamation No. 103 of 1994);
‘‘downgrading of state information’’means a change of classication of state
information from its existing level to a lower level;
‘‘espionage’’means the offences referred to in section 34;
‘‘foreign state’’means any state other than the Republic of South Africa;
‘‘head of an organ of state’’means—
(a)in the case of a department, the officer who is the incumbent of the post
bearing the designation mentioned in Column 2 of Schedule 1, 2 or 3 to the
Public Service Act, 1994 (Proclamation No. 103 of 1994), or section 1 of the
Intelligence Services Oversight Act, 1994 (Act No. 40 of 1994), or the person
who is acting as such;
(b)in the case of a municipality, the municipal manager appointed in terms of
section 82 of the Local Government: Municipal Structures Act, 1998 (Act
No. 117 of 1998), or the person who is acting as such;
(c)in the case of any other state institution, the chief executive officer or
equivalent officer, of that public body or the person who is acting as such; or
(d)in the case of a national key point declared as such in terms of the National
Key Points Act, 1980 (Act No. 102 of 1980), the owner of the national key
point;
‘‘hostile activity’’means—
(a)aggression against the Republic;
(b)sabotage or terrorism aimed at the people of the Republic or a strategic asset
of the Republic, whether inside or outside the Republic;
(c)an activity aimed at changing the constitutional order of the Republic by the
use of force or violence; or
(d)a foreign or hostile intelligence operation;
‘‘information’’means any information contained in any document whether
written, copied, drawn, painted, printed, lmed, photographed, magnetic, optical,
digital, electronic or any other type of recording, measure, procedure, object or
verbal announcement;5
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‘‘ information and communication technology security’’means the application
of security measures to protect the design, development, implementation, support,
management and use of—
(a)computer-based information systems, including software applications, com-
puter hardware and data; and
(b)electronic and mobile communication systems and the transmission of data;
‘information peddling’’means the conduct referred to in section 43;
‘‘information security’’means the safeguarding or protection of state information
in whatever form;
‘‘intelligence’’means the process of gathering, evaluation, correlation and
interpretation of security information, including activities related thereto;
‘‘Minister’’means the member of the Cabinet designated by the President in terms
of section 209(2) of the Constitution to assume political responsibility for the
control and direction of the intelligence services established in terms of section
209(1) of the Constitution;
‘‘MISS Guidelines’’means the Minimum Information Security Standards
document as approved by Cabinet on 4 December 1996;
‘‘National Archives’’means the National Archives and Records Service of South
Africa established by section 2 of the National Archives and Records Service of
South Africa Act, 1996 (Act No. 43 of 1996);
‘‘national intelligence structures’’means—
(a)the National Intelligence Coordinating Committee (Nicoc);
(b)the intelligence division of the National Defence Force;
(c)the intelligence division of the South African Police Service; and
(d)the Agency;
‘‘national security’’includes the protection of the people of the Republic and the
territorial integrity of the Republic against—
(a)the threat of use of force or the use of force;
(b)the following acts:
(i) Hostile acts of foreign intervention directed at undermining the
constitutional order of the Republic;
(ii) terrorism or terrorist related activities;
(iii) espionage;
(iv) exposure of a state security matter with the intention of undermining the
constitutional order of the Republic;
(v) exposure of economic, scientic or technological secrets vital to the
Republic;
(vi) sabotage; and
(vii) serious violence directed at overthrowing the constitutional order of the
Republic;
(c)acts directed at undermining the capacity of the Republic to respond to the use
of, or the threat of the use of, force and carrying out of the Republic’s
responsibilities to any foreign country and international organisations in
relation to any of the matters referred to in this denition, whether directed
from, or committed within, the Republic or not,
but does not include lawful political activity, advocacy, protest or dissent;
‘‘non state actor’’means any person or entity other than a state engaged in a
hostile activity;
‘‘organ of state’’means—
(a)any organ of state as dened in section 239 of the Constitution, including, but
not limited to, any public entity as dened in section 1 of the Public Finance
Management Act, 1999 (Act No. 1 of 1999), and section 3 of the Municipal
Finance Management Act, 2003 (Act No. 56 of 2003); or
(b)any facility or installation declared as a National Key Point in terms of the
National Key Points Act, 1980 (Act No. 102 of 1980);
‘‘original classication authority’’means the classication authority that
authorised the original classication;
‘‘personal information’’means any information concerning an identiable natural
person which, if disclosed, could reasonably be expected to endanger the life or
physical safety of an individual;
‘‘prescribed’’means prescribed by regulation made in terms of section 51;
‘‘Promotion of Access to Information Act’’means the Promotion of Access to
Information Act, 2000 (Act No. 2 of 2000);6
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‘‘public record’’means a record created or received by a governmental body in
pursuance of its activities;
‘‘record’’means recorded state information regardless of form or medium;
‘‘regulations’’means the regulations issued by the Minister in terms of this Act;
‘‘relevant Minister’’means any Cabinet member whose portfolio is affected by
this Act;
‘‘request for access’’means a request for access contemplated in section 1 of the
Promotion of Access to Information Act;
‘‘secret information’’has the meaning assigned to it in section 11(2);
‘‘security clearance’’means a certicate issued to a person after the successful
completion of a security screening investigation, specifying the level of classied
information to which the person may have access;
‘‘security committee’’means the committee, comprising representatives from all
the main functions or structures of an institution, charged with overseeing the
development, implementation and maintenance of the institution’s security policy;
‘‘sensitive information’’means state information which must be protected from
unlawful disclosure in order to prevent the national security of the Republic from
being harmed;
‘‘state information’’means information generated, acquired or received by organs
of state or in the possession or control of organs of state;
‘‘state security matter’’includes any matter, which has been classied in terms of
this Act and which is dealt with by the Agency or which relates to the functions of
the Agency or to the relationship existing between any person and the Agency;
‘‘technical surveillance countermeasures’’means the process involved in the
detection, localisation, identication and neutralisation of technical surveillance of
an individual, an institution, facility or vehicle;
‘‘this Act’’includes the regulations made in terms of section 51;
‘‘top secret information’’has the meaning assigned to it in section 11(3);
‘‘valuable information’’means information contemplated in this Act whose
unlawful alteration, destruction or loss is likely to infringe on the consitutional
rights of the public or individuals or deny them of a service or benet to which they
are entitled.
(2) This Act must be interpreted to give effect to its objects and to develop the
information principles set out in Chapter 2.
(3) When considering an apparent conict between this legislation and other
information-related legislation, every court must prefer any reasonable interpretation of
the legislation that avoids a conict over any alternative interpretation that results in a
conict taking into consideration the need to protect and classify certain state
information in terms of this Act.
(4) For the purposes of this Act, a person has knowledge of a fact if—
(a)the person has actual knowledge of that fact; or
(b)the court is satised that—
(i) the person believes that there is a reasonable possibility of the existence
of that fact; and
(ii) he or she fails to obtain information to conrm the existence of that fact.
(5) For the purposes of this Act, a person ought reasonably to have known or
suspected a fact if the conclusions that he or she ought to have reached, are those which
would have been reached by a reasonably diligent and vigilant person having both—
(a)the general knowledge, skill, training and experience that may reasonably be
expected of a person in his or her position; and
(b)the general knowledge, skill, training and experience that he or she in fact has.
Objects of Act
2.The objects of this Act are to—
(a)regulate the manner in which state information may be protected;
(b)promote transparency and accountability in governance while recognising
that state information may be protected from disclosure in order to safeguard
the national security of the Republic;
(c)establish general principles in terms of which state information may be made
available or accessible or protected in a constitutional democracy;
(d)provide for a thorough and methodical approach to the determination of which
state information may be protected;7
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(e)provide a regulatory framework in terms of which protected state information
is safeguarded in terms of this Act;
(f)describe the nature and categories of state information that may be protected
from alteration, destruction, loss or unlawful disclosure;
(g)regulate the conditions for classication and the declassication of classied
information;
(h)create a system for the review of the status of classied information by way of
regular reviews and requests for access to classied information and status
review;
(i)regulate the accessibility of declassied information to the public;
(j)establish a Classication Review Panel to review and oversee status review,
classication and declassication procedures;
(k)criminalise espionage and activities hostile to the Republic and provide for
certain other offences and penalties; and
(l)repeal the Protection of Information Act, 1982 (Act No. 84 of 1982).
Application of Act
3.(1) The classication, reclassication and declassication provisions of this Act—
(a)apply to the cabinet, the security services of the Republic and the oversight
bodies referred in Chapter 11 of the Constitution; and
(b)may be made applicable by the Minister, on good cause shown, by publication
in theGazette, after approval by Parliament, to any organ of state or part
thereof that applies in the prescribed manner, excluding all municipalities and
all municipal entities, to have those provisions apply to it.
(2) In determining what constitutes ‘good cause’ in subsection (1)(b)regard may be
had to any one or more of the following factors:
(a)The nature of the information handled by the organ of state, including its
implications for national security, its impact on international relations and
related condences;
(b)the need for the protection of South African innovations and the desirability of
the continued availability of information to members of the public;
(c)the competence and ability of the officials on the organ of state to classify,
reclassify and declassify the information in accordance with the Act; and
(d)whether the existing dispensation cannot protect the information.
(3) The provisions of this Act with regard to the protection of valuable information
against unlawful alteration, destruction or loss apply to all organs of state.
CHAPTER 2
GENERAL PRINCIPLES OF STATE INFORMATION
General principles of state information
4.(1) The following principles underpin this Act and inform its implementation and
interpretation:
(a)Unless restricted by law that clearly sets out reasonable and objectively
justied public or private considerations, state information should be
available and accessible to all persons;
(b)state information that is accessible to all is the basis of a transparent, open and
democratic society;
(c)access to state information is a basic human right and promotes human
dignity, freedom and the achievement of equality;
(d)the free ow of state information promotes openness, responsiveness,
informed debate, accountability and good governance;
(e)the free ow of state information can promote safety and security;
(f)accessible state information builds knowledge and understanding and
promotes creativity, education, research, the exchange of ideas and economic
growth;
(g)the protection and classication of certain state information is however vital to
save lives, to enhance and to protect the freedom and security of persons,
bring criminals to justice, protect the national security and to engage in
effective government and diplomacy;8
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(h)measures to protect state information should not infringe unduly on personal
rights and liberties or make the rights and liberties of citizens unduly
dependent on administrative decisions;
(i)measures taken in terms of this Act must—
(i) have regard to the freedom of expression, the right of access to
information and the other rights and freedoms enshrined in the Bill of
Rights;
(ii) promote and support the functions and effectiveness of the Constitutional
Institutions Supporting Democracy; and
(iii) be consistent with article 19 of the International Covenant on Civil and
Political Rights and have regard to South Africa’s international
obligations; and
(j)in balancing the legitimate interests referred to in paragraphs(a)to(i)the
relevant Minister, relevant official or a court must have due regard to the
security of the Republic, in that the national security of the Republic may not
be compromised.
(2) Certain state information may, in terms of this Act, be protected against unlawful
disclosure, alteration, destruction or loss.
(3) State information in material or documented form which requires protection
against unlawful disclosure may be protected by way of classication and access to such
information may be restricted to the Cabinet, institutions referred to in section 181 of the
Constitution and certain individuals who carry a commensurate security clearance.
CHAPTER 3
POLICIES AND PROCEDURES
Policies and procedures
5.(1) The head of an organ of state, where applicable, must establish—
(a)policies, directives and categories for classifying, downgrading and declassi-
fying state information;
(b)in terms of section 51(1)(m), conditions for the treatment and protection of
classied information that is accessed by the institutions mentioned in section
181 of the Constitution; and
(c)conditions for the protection against alteration, destruction or loss of state
information created, acquired or received by that organ of state.
(2) Each organ of state must, where applicable, establish policies, directives and
categories in terms of subsection (1) within six months of the date on which the
regulations contemplated under section 51(4) are promulgated.
(3) Policies and directives must not be inconsistent with the national information
security standards prescribed in terms of section 51(4) and the Constitution.
CHAPTER 4
STATE INFORMATION WHICH REQUIRES PROTECTION AGAINST
ALTERATION, DESTRUCTION OR LOSS
Process of determining state information as valuable
6.(1) State information must be determined as valuable when that information is
identied in terms of a prescribed procedure or policy as information that should be
protected against alteration, destruction or loss.
(2) When state information is categorised as valuable, all individual items of
information that fall within a valuable category are automatically deemed to be valuable.
Protection of valuable information
7.(1) Valuable information warrants a degree of protection and administrative control
and must be handled with due care and only in accordance with authorised procedures.
(2) Valuable information need not be specically marked, but holders of such
information must be made aware of the need for controls and protections as prescribed.9
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(3) The destruction of public records is subject to the National Archives and Records
Service of South Africa Act, 1996 (Act No.43 of 1996).
CHAPTER 5
SYSTEM OF CLASSIFICATION, RECLASSIFICATION AND
DECLASSIFICATION OF STATE INFORMATION
Conditions for classication, reclassication and declassication
8.(1) The decision to classify information must be based solely on the conditions set
out in this Act.
(2)(a)Classication of state information is justiable only when it is necessary to
protect national security.
(b)Classication of state information may not under any circumstances be used to—
(i) conceal breaches of the Prevention and Combating of Corrupt Activities Act,
2004 (Act No. 12 of 2004) or any other an unlawful act or omission,
incompetence, inefficiency or administrative error;
(ii) restrict access to state information in order to limit scrutiny and thereby avoid
criticism;
(iii) prevent embarrassment to a person, organisation, or organ of state or agency;
(iv) unlawfully restrain or lessen competition; or
(v) prevent, delay or obstruct the release of state information that does not require
protection under this Act.
(c)The classication of state information is an exceptional measure and should be
conducted strictly in accordance with section 11.
(d)State information is classied only when there is—
(i) a clear, justiable and legitimate need to do so; and
(ii) a demonstrable need to protect the state information in the interest of the
national security.
(e)If there is signicant doubt as to whether state information requires protection, the
matter must be referred to the relevant Minister for a decision.
(f)The decision to classify may not be based on any extraneous or irrelevant reason.
(g)Classication decisions must balance the right to access to state information
against the need to classify state information in terms of this Act.
(h)Scientic and research information not clearly related to the national security may
not be classied.
(i)State information may not be reclassied after it has been declassied and released
to the public under proper authority.
(j)Classication must be in place only foe as long as the protection is actually
necessary.
(k)Where there is still a need for classication it may be that the state information in
question no longer requires a high classication level and should be downgraded.
(3) Specic considerations with regard to the decision whether to classify state
information must include whether the disclosure may—
(a)expose the identity of a condential source, or reveal information about the
application of an intelligence or police source when the unlawful disclosure of
that source would clearly and demonstrably damage the national security of
the Republic or the interests of the source or his or her family;
(b)clearly and demonstrably impair the ability of government to protect officials
or persons for whom protection services, in the interest of the national
security, are authorised;
(c)seriously and substantially impair the national security, defence or intelli-
gence systems, plans or activities;
(d)seriously and demonstrably impair relations between South Africa and a
foreign government, or seriously and demonstrably undermine ongoing
diplomatic activities of the Republic;
(e)violate a statute, treaty, or international agreement, including an agreement
between South African government and another government or international
institution;
(f)cause life threatening or other physical harm to a person or persons; or
(g)cause demonstrable, irreparable or exceptionally grave harm to the national
security of the Republic.10
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(4) The application of the classication conditions may not in any way inhibit or
prevent officials from informing authorised officials of such information in order to full
law enforcement or intelligence functions authorised or prescribed by law.
(5) When the conditions for classication contemplated in this section no longer exist
classied information must be declassied.
Nature of classied information
9.Classied information—
(a)is sensitive state information which is in material or record form;
(b)must be protected from unlawful disclosure and against alteration, destruction
or loss as prescribed;
(c)must be safeguarded according to the degree of harm that could result from its
unlawful disclosure;
(d)may be made accessible only to those holding an appropriate security
clearance and who have a legitimate need to access the state information in
order to full their official duties or contractual responsibilities; and
(e)must be classied in terms of section 11.
Method of classifying state information
10.(1) State information is classied by the relevant classication authority in terms
of section 8 when—
(a)a classication authority has identied state information in terms of this Act as
state information that warrants classication;
(b)the items or categories of state information classied are marked or indicated
with an appropriate classication; and
(c)the classied information has been entered into a register of classied
information.
(2) The classication of state information is determined through a consideration of the
conditions contained in section 8.
Classication levels
11 .(1) State information may be classied as condential if the information is
sensitive information, the disclosure of which is likely or could reasonably be expected
to cause demonstrable harm to the national security of the Republic.
(2) State information may be classied as secret if the information is sensitive
information, the disclosure of which is likely or could reasonably be expected to cause
serious demonstrable harm to the national security of the Republic.
(3) State information may be classied as top secret if the information is sensitive
information, the disclosure of which is likely or could reasonably be expected to
demonstrably cause irreparable or exceptionally grave harm to the national security of
the Republic.
Authority to classify state information
12.(1) Subject to section 3, any head of an organ of state may classify or reclassify
state information using the classication levels set out in section 11 or other provisions
of this Act.
(2) A head of an organ of state may delegate, in writing, the authority to classify state
information to a staff member at a sufficiently senior level.
(3) Only designated staff members may be given the authority to classify state
information as secret or top secret.
(4) Classication decisions must be taken at a sufficiently senior level to ensure that
only that state information which genuinely requires protection is classied.
(5) When state information is categorised as classied, all individual items of
information that fall within a classied category are deemed to be classied.
(6) Where a person is a member of the Security Services as contemplated in chapter
11 of the Constitution, excluding ordinary members of the South African Police Service
and the South African National Defence Force, except those, who by the nature of his or
her work deals with state information that may fall within the ambit of this Act, that11
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person must classify such information in accordance with the classication levels set out
in section 11.
(7) The member of the Security Services authorised in terms of subsection (6) must
submit the classied state information to the head of an organ of state in question for
conrmation of the classication.
(8) The state information classied in terms of subsection (6) must remain classied
until the head of an organ of state in question decides otherwise.
(9) The head of an organ of state retains accountability for any decision taken in terms
of a delegated authority contemplated in subsection (2).
Report and return of classied records
13.A person who is in possession of a classied record knowing that such record has
been unlawfully communicated, delivered or made available other than in the manner
and for the purposes contemplated in this Act, except where such possession is for any
purpose and in any manner authorised by law, must report such possession and return
such record to a member of the South African Police Service, the Agency or the relevant
classifying organ of state to be dealt with in the prescribed manner.
Authority to declassify classied information
14.(1) The organ of state that classied information is responsible for its
declassication and downgrading.
(2) The head of an organ of state is the declassication authority, but he or she may
delegate the authority to declassify and downgrade, in writing, to a staff member at a
sufficiently senior level within the organ of state.
(3) The head of an organ of state retains accountability for any decision taken in terms
of such delegated authority.
(4) Subject to subsection (5), the Agency is responsible for the handling of classied
records and the declassication of such records of a defunct organ of state or agency that
has no successor in function.
(5) The Agency must consult with organs of state or agencies having primary subject
matter interest before making nal declassication determinations.
Maximum protection periods
15.In accordance with section 11(2) of the National Archives of South Africa Act,
1996 (Act No. 43 of 1996), information may not remain classied for longer than a 20
year period unless the head of the organ of state that classied the state information,
certies to the satisfaction of the Classication Review Panel that the conditions for
classication set out in sections 11 and 8 still apply.
CHAPTER 6
REGULAR REVIEWS, REQUEST FOR ACCESS TO CLASSIFIED
INFORMATION AND STATUS REVIEW
Regular reviews of classied information
16.(1) The head of an organ of state—
(a)must at least every 10 years review the classied status of all classied
information held by that organ of state; or
(b)may review the classied status of classied information at any time but must
do so at least once every 10 years.
(2) When conducting a review, the head of an organ of state must apply the conditions
for the classication and declassication of state information set out in sections 11 and
8.
(3) The status of classied information must be reviewed when there is a need or a
proposal to use that classied information in a public forum such as in a court or tribunal
proceedings.
(4) The rst 10 year period referred to in subsection (1) commences on the effective
date of this Act.12
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(5)(a)The head of an organ of state must annually and in the prescribed manner
prepare a report on the regular reviews conducted under this section by that organ of
state and submit such report to the Classication Review Panel for certication.
(b)The Classication Review Panel must table the report within 30 days of receipt
thereof in Parliament if Parliament is in session, or if Parliament is not in session within
14 days after the commencement of the next parliamentary session.
(c)The head of the organ of state must publish the annual report.
Request for access to classied information and status review
17.(1) If a request is made for access to information and it is established that the
information requested is classied, that request must be referred to the relevant head of
the organ of state for a review of the classication status of the state information
requested in terms of the provisions of this Act.
(2)(a)The head of the organ of state concerned must declassify the classied
information in accordance with section 8 and grant the request for state information if
that state information reveals evidence of—
(i) any contravention of, or failure to comply with the law; or
(ii) an imminent and serious public safety or environmental risk; and
(b)the public interest in the disclosure of the state information clearly outweighs the
harm that will arise from the disclosure.
(3) The head of the organ of state must—
(a)within 14 days of receipt of the request contemplated in subsection (2)(a)(ii)
grant the request for the declassication of classied information; or
(b)within 30 days, of receipt of the request contemplated in subsection (2)(a)(i)
grant the request for the declassication of classied information.
(4) A court may condone non-observance of the time-period referred to in subsection
(3)(a)on good cause shown where an urgent application is brought before court.
(5) In conducting such a review the head of an organ of state must take into account
the conditions for classication and declassication as set out in this Chapter.
CHAPTER 7
CLASSIFICATION REVIEW PANEL
Establishment of Classication Review Panel
18.(1) There is hereby established a Panel to be known as the Classication Review
Panel.
(2) All organs of state must provide the Classication Review Panel such assistance
as may be reasonably required for the effectiveness of the Classication Review Panel
in the performance of its functions.
(3)(a)No organ of state or employee of an organ of state may interfere with, hinder
or obstruct the Classication Review Panel or any member thereof or a person appointed
under section 28 in the performance of its, his or her functions; and
(b)No access to classied information may be withheld from the Classication
Review Panel on any ground.
Functions of Classication Review Panel
19.(1) The Classication Review Panel must—
(a)review and oversee status reviews, classications and declassications
contemplated in this Act;
(b)receive all reports of 10 year reviews on the status of all classied information
conducted by the organs of state; and
(c)receive, once a year, all reviews on the status of classied information
conducted by the organs of state during the course of a nancial year.
(2) The Classication Review Panel may, with the concurrence of the Minister, make
rules not in conict with this Act for matters relating to the proper performance of the
functions of the Classication Review Panel, including—
(a)time periods within which reports by the heads of organs of state must be
submitted;
(b)state information to be supplied when a report is submitted;13
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(c)procedures regarding the deliberations and the conduct of work of the Panel;
and
(d)random sampling methods to be employed in reviewing compliance under this
Chapter.
Constitution and appointment of Classication Review Panel
20.(1) Due regard having been given to—
(a)participation by the public in the nomination process;
(b)transparency and openness; and
(c)the publication of a shortlist of candidates for appointment.
(2) The Joint Standing Committee on Intelligence must table a list of ve persons for
approval by Parliament.
(3) Parliament must by a resolution with a support of a majority vote of its members
upon approval submit the list of ve persons to the Minister for appointment.
(4) The Classication Review Panel is headed by a chairperson who must either be an
admitted attorney or advocate with at least ten years legal experience.
(5) The other four members of the Classication Review Panel must be suitably
qualied of whom—
(a)at least one member must have expertise in the Constitution and the law;
(b)at least one member must have knowledge and experience of national security
matters; and
(c)at least one member must have knowledge and experience of archive related
matters.
(6) The members of the Classication Review Panel are appointed for a term of ve
years which term is renewable for one additional term only.
(7) A person may not be appointed as a member of the Classication Review Panel
unless that person has a valid security clearance certicate issued under the National
Strategic Intelligence Act, 1994 (Act No. 39 of 1994).
Disqualication from membership
21.A person may not be appointed as a member of the Classication Review Panel if
he or she—
(a)is not a citizen of the Republic;
(b)is not resident in the Republic;
(c)is appointed by, or is in the service of, the state and receives remuneration for
that appointment or service;
(d)is a member of Parliament, any provincial legislature or any municipal
council;
(e)is an office-bearer or employee of any political party, movement or
organisation of a party-political nature;
(f)is an unrehabilitated insolvent;
(g)has been declared to be of unsound mind by a court of the Republic;
(h)has been convicted of an offence in the Republic, other than an offence
committed prior to 10 May 1994 associated with political objectives, and was
sentenced to imprisonment without an option of a ne; or
(i)has been removed from an office of trust on account of misconduct involving
theft, corruption, maladministration or fraud.
Removal from office
22.(1) A member of the Classication Review Panel may be removed from the Panel
on—
(a)the grounds of misconduct, incapacity or incompetence;
(b)a nding to that effect by the Joint Standing Committee on Intelligence; and
(c)the adoption by Parliament of a resolution calling for that member’s removal
as member from the Classication Review Panel.
(2) A resolution of Parliament concerning the removal of a member from the
Classication Review Panel must be adopted with a supporting vote of a majority of the
members of the National Assembly and the National Council of Provinces.
(3) The Minister—14
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(a)may suspend a member from the Classication Review Panel at any time after
the start of the proceedings of the Joint Standing Committee of Intelligence
for the removal of that person; and
(b)must remove a person from office upon adoption by Parliament of the
resolution calling for that person’s removal.
(4) A member ceases to be a member of the Classication Review Panel if that
member—
(a)resigns;
(b)fails to attend three consecutive meetings of the Classication Review Panel,
unless his or her apology has been accepted; or
(c)becomes disqualied in terms of section 21.
(5) A vacancy in the Classication Review Panel must be lled as soon as practicable
in accordance with section 20.
Remuneration of members and staff
23.Members of the Classication Review Panel and staff of the Classication Review
Panel must be paid such remuneration and allowances as determined by the Minister
with the concurrence of the Minister of Finance.
Meetings of Classication Review Panel
24.(1) The Classication Review Panel meets as often as the circumstances require,
but must meet at least once a month,at such times and places as the chairperson may
determine.
(2) The Classication Review Panel may determine its own procedure for its
meetings.
(3) The quorum for any meeting of the Classication Review Panel is three members.
(4) Any decision taken by the Classication Review Panel is not invalid merely by
reason of a vacancy on the Panel provided that the required quorum is present at that
meeting.
Decisions of Classication Review Panel
25.(1) The Classication Review Panel may conrm, vary or set aside any
classication decision taken by the head of an organ of state and instruct the head of the
organ of state concerned to change the classication status of the classied information,
if necessary.
(2) The Classication Review Panel must before reaching a nal decision afford the
head of an organ of state an opportunity to respond in connection therewith, in any
manner that may be expedient under the circumstances.
(3) A decision of the Classication Review Panel binds an organ of state subject to
any appeal that the organ of state may lodge with a competent High Court.
Appointment of staff
26.(1) The Chairperson of the Classication Review Panel must appoint staff to assist
the Panel in carrying out its functions.
(2) A person may not be appointed under subsection (1) unless that person has a valid
security clearance certicate issued under the National Strategic Intelligence Act, 1994
(Act No. 34 of 1994).
Accountability of Classication Review Panel
27.The Classication Review Panel is accountable to Parliament, and must report on
its activities and the performance of its functions at least once a year.
Reporting
28.(1) The Classication Review Panel must, in respect of each nancial year,
prepare an annual report on the activities of the Classication Review Panel undertaken
during the nancial year.15
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(2) The Classication Review Panel must table the report contemplated in subsection
(1) in Parliament within 30 days of receipt thereof if Parliament is in session, or if
Parliament is not in session within 14 days after the commencement of the next
parliamentary session.
(3) The head of an organ of state must in respect of the declassied information in
possession of that organ of state prepare a report for submission to the Classication
Review Panel by 31 December of each year.
(4) The Classication Review Panel must on receipt of the reports contemplated in
subsection (3) prepare a report on all the declassied information for the nancial year
in question and must include the report in its annual report referred to in subsection (1).
(5) The Classication Review Panel must, furnish any other report upon request by
the Joint Standing Committee on Intelligence.
(6) The Chairperson of the Classication Review Panel must publish the annual
report of the Classication Review Panel.
CHAPTER 8
APPEALS
Appeal procedure
29.(1) Any person who is refused access to state information in terms of this Act may
appeal to the relevant Minister of the organ of state in question.
(2) Any appeal referred to in subsection (1) must be lodged within 30 days of receipt
of the decision and the reasons therefor.
(3) Upon receipt of an appeal, the relevant Minister of the classifying organ of state
must make a nding and in the case of refusal provide reasons within 30 working days
of the date of receipt of such request.
Application to Court
30.(1) A person who is aggrieved by a decision made with regard to a request for
access to classied information may apply to a court for appropriate relief after the
requester has exhausted the internal appeal procedure against a decision of the relevant
Minister of the organ of state in question.
(2) Notwithstanding subsection (1), a requester may apply directly to a court for
urgent relief contemplated in section 17(3), without having exhausted the internal
appeal procedure contemplated in section 29 of this Act.
CHAPTER 9
TRANSFER OF RECORDS TO NATIONAL ARCHIVES AND RELEASE OF
DECLASSIFIED INFORMATION TO PUBLIC
Transfer of public records to National Archives
31.(1) The head of an organ of state must review the classication of state
information before it is transferred to the National Archives or other archives established
by law.
(2) Subject to section 15, at the date on which this Act takes effect, public records,
including records marked classied that are transferred to the National Archives or other
archives must be declassied in accordance with section 8.
(3) The head of an organ of state that holds classied records that originated in another
organ of state must—
(a)notify the originating organ of state before transferring classied records to
the National Archives or other archives; and
(b)abide by the reasonable directions of the originating organ of state.
(4) Classied records held by the National Archives or other archives at the
commencement of this Act, which have been classied for less than 20 years, are subject
to the provisions of this Act.
(5) An organ of state, which transferred classied information to the National
Archives or other archives before the commencement of this Act, retains its
responsibilities in terms of this Act.16
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Release of declassied information to public
32. (1) Classied information that is declassied may be made available to the public
in accordance with this Act, the Promotion of Access to Information Act, 2000 (Act No.
2 of 2000), or any other law.
(2) Unless ordered by a court, no classied information may be made available to the
public until such state information has been declassied.
(3) When an organ of state receives a request for records in its possession that contain
state information that was originally classied by another organ of state, it must refer the
request and the pertinent records to that other organ of state for processing, and may,
after consultation with the other organ of state, inform the requester of the referral.
CHAPTER 10
IMPLEMENTATION AND MONITORING
Responsibilities of Agency
33.The Agency is responsible for monitoring—
(a)all organs of state for compliance with prescribed controls and measures to
protect valuable information; and
(b)all organs of state referred to in section 3, excluding the South African Police
Service and the South African National Defence Force for compliance with
the prescribed controls and measures to protect classied information.
CHAPTER 11
OFFENCES AND PENALTIES
Espionage and related offences
34.(1) It is an offence punishable on conviction by imprisonment for a period not less
than 15 years but not exceeding 25 years—
(a)to unlawfully and intentionally communicate, deliver or make available state
information classied top secret which the person knows or ought reasonably
to have known would directly or indirectly benet a foreign state; or
(b)to unlawfully and intentionally make, obtain, collect, capture or copy a record
containing state information classied top secret which the person knows or
ought reasonably to have known would directly or indirectly benet a foreign
state.
(2) It is an offence punishable on conviction by imprisonment for a period not less
than 10 years but not exceeding 15 years—
(a)to unlawfully and intentionally communicate, deliver or make available state
information classied secret which the person knows or ought reasonably to
have known would directly or indirectly benet a foreign state; or
(b)to unlawfully and intentionally make, obtain, collect, capture or copy a record
containing state information classied secret which the person knows or ought
reasonably to have known would directly benet a foreign state.
(3) It is an offence punishable on conviction by imprisonment for a period not less
than three years but not exceeding ve years—
(a)to unlawfully and intentionally communicate, deliver or make available state
information classied condential which the person knows or ought
reasonably to have known would directly or indirectly benet a foreign state;
or
(b)to unlawfully and intentionally make, obtain, collect, capture or copy a record
containing state information classied condential which the person knows or
ought reasonably to have known would directly or indirectly benet a foreign
state.
(4) If a court is satised that substantial and compelling circumstances exist which
justify the imposition of a lesser sentence than the sentence prescribed in this section, it
shall enter those circumstances on the record of the proceedings and must thereupon
impose such lesser sentence.17
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Receiving state information unlawfully
35.(1) It is an offence punishable on conviction by imprisonment for a period not
exceeding 25 years to unlawfully and intentionally receive state information classied
top secret which the person knows would directly or indirectly benet a foreign state to
the detriment of the national security of the Republic.
(2) It is an offence punishable on conviction by imprisonment for a period not
exceeding 15 years to unlawfully and intentionally receive state information classied
secret which the person knows would directly or indirectly benet a foreign state to the
detriment of the national security of the Republic.
(3) It is an offence punishable on conviction by imprisonment for a period not
exceeding ve years to unlawfully and intentionally receive state information classied
condential which the person knows would directly or indirectly benet a foreign state
to the detriment of the national security of the Republic. .
Hostile activity offences
36.(1) It is an offence punishable on conviction by imprisonment for a period not
exceeding 20 years for any person to—
(a)unlawfully and intentionally communicate, deliver or make available state
information classied top secret which the person knows would directly or
indirectly benet a non state actor engaged in hostile activity that would
prejudice the national security of the Republic; or
(b)unlawfully and intentionally make, obtain, collect, capture or copy a record
containing state information classied top secret which the person knows
would directly or indirectly benet a non state actor engaged in hostile activity
that would prejudice the national security of the Republic.
(2) It is an offence punishable on conviction by imprisonment for a period not
exceeding 15 years for any person to—
(a)unlawfully and intentionally communicate, deliver or make available state
information classied secret which the person knows would directly or
indirectly benet a non state actor engaged in hostile activity or prejudice the
national security of the Republic; or
(b)unlawfully and intentionally make, obtain, collect, capture or copy a record
containing state information classied secret which the person knows would
directly or indirectly benet a non state actor engaged in hostile activity or
prejudice the national security of the Republic .
(3) It is an offence punishable on conviction by imprisonment for a period not
exceeding ve years for any person to—
(a)unlawfully and intentionally communicate, deliver or make available state
information classied condential which the person knows would directly or
indirectly benet a non state actor engaged in hostile activity or prejudice the
national security of the Republic; or
(b)unlawfully and intentionally make, obtain, collect, capture or copy a record
containing state information classied condential which the person knows
would directly or indirectly benet a non state actor engaged in hostile activity
or prejudice the national security of the Republic.
Harbouring or concealing persons
37.Any person who harbours or conceals a person whom he or she knows, or has
reasonable grounds to believe or suspect, has committed, or is about to commit, an
offence contemplated in section 34 or 36 , is guilty of an offence and liable on conviction
to imprisonment for a period not exceeding 10 years.
Interception of or interference with classied information
38.(1) Subject to the Regulation of Interception of Communications and Provision of
Communication-Related Information Act, 2002 (Act No. 70 of 2002), a person who
intentionally accesses or intercepts any classied information without authority or
permission to do so, is guilty of an offence and liable to imprisonment for a period not
exceeding 10 years.18
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(2) Any person who intentionally and without authority to do so, interferes with
classied information in a way which causes such information to be modied, destroyed
or otherwise rendered ineffective, is guilty of an offence and liable on conviction to
imprisonment for a period not exceeding 10 years.
(3) Any person who unlawfully and intentionally produces, sells, offers to sell,
procures for use, designs, adapts for use, distributes or possesses any device, including
a computer program or a component, which is specically designed to overcome
security measures for the protection of state information, for the purposes of
contravening this section, is guilty of an offence and liable on conviction to
imprisonment for a period not exceeding 10 years.
(4) Any person who intentionally utilises any device or computer program mentioned
in subsection (3) in order to unlawfully overcome security measures designed to protect
state information, is guilty of an offence and liable on conviction to imprisonment for a
period not exceeding 10 years.
(5) Any person who contravenes any provision of this section with the intent to
interfere with access to an information system so as to constitute a denial, including a
partial denial, of service to legitimate users commits an offence and is liable on
conviction to imprisonment for a period not exceeding 10 years.
(6)(a)Without derogating from the generality of subsection (6)(b)—
‘‘access to a computer’’includes access by whatever means to any program or data
contained in the random access memory of a computer or stored by any computer on any
storage medium, whether such storage medium is physically attached to the computer or
not, where such storage medium belongs to or is under control of the State;
‘‘content of any computer’’includes the physical components of any computer as well
as any programme or data contained in the random access memory of a computer or
stored by any computer on any storage medium, whether such storage medium is
physically attached to the computer or not, where such storage medium belongs to or is
under the control of the State;
‘‘modication‘‘includes both a modication of a temporary or permanent nature; and
‘‘unauthorised access’’includes access by a person who is authorised to use the
computer but is not authorised to gain access to a certain programme or to certain data
held in such computer or is not authorised, at the time when the access is gained, to gain
access to such computer, programme or data.
(b)Any person who wilfully gains unauthorised access to any computer which
belongs to or is under the control of the State or to any programme or data held in such
a computer, or in a computer to which only certain or all employees have restricted or
unrestricted access in their capacity as employees of the State, is guilty of an offence and
liable on conviction to a ne or to imprisonment for a period not exceeding two years.
(c)Any person who wilfully causes a computer which belongs to or is under the
control of the State or to which only certain or all employees have restricted or
unrestricted access in their capacity as employees to perform a function while such
person is not authorised to cause such computer to perform such function, is guilty of an
offence and liable on conviction to a ne or to imprisonment for a period not exceeding
two years.
(d)Any person who wilfully performs an act which causes an unauthorised
modication of the contents of any computer which belongs to or is under the control of
the State or to which only certain or all employees have restricted or unrestricted access
in their capacity as employees of the State with the intention to—
(i) impair the operation of any computer or of any programme in any computer or
of the operating system of any computer the reliability of data held in such
computer; or
(ii) prevent or hinder access to any programme or data held in any computer,
is guilty of an offence and liable on conviction to a ne or to imprisonment for a period
not exceeding ve years.
(e)Any act or event for which proof is required for a conviction of an offence in terms
of this subsection which was committed or took place outside the Republic is deemed to
have been committed or have taken place in the Republic: Provided that—
(i) the accused was in the Republic at the time he or she performed the act or any
part thereof by means of which he or she gained or attempted to gain
unauthorised access to the computer, caused the computer to perform a function
or modied or attempted to modify its content;
(ii) the computer, by means of or with regard to which the offence was committed,
was in the Republic at the time the accused performed the act or any part thereof19
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by means of which he or she gained or attempted to gain unauthorised access to
it, caused it to perform a function or modied or attempted to modify its
contents;
(iii) the accused was a South African citizen at the time of the commission of the
offence; or
(iv) the offence was committed against a government facility of the Republic abroad,
including an embassy or other diplomatic or consular premises or any other
property of the Republic.
Registration of intelligence agents and related offences
39.(1) Any person who is in the Republic and who is—
(a)employed or operating as an agent for a foreign intelligence or security
service; or
(b)not employed or operating as an agent for a foreign intelligence or security
service but is in the Republic with the expectation or potential of activation or
re-activation as an agent of such an intelligence or security service, must
register with the Agency.
(2) Any person who fails to register as an intelligence or security agent in accordance
with this section is guilty of an offence and liable on conviction to imprisonment for a
period not exceeding ve years.
Attempt, conspiracy and inducing another person to commit offence
40.Any person who attempts, conspires with any other person, or aids, abets, induces,
instigates, instructs or commands, counsels or procures another person to commit an
offence in terms of this Act, is guilty of an offence and liable on conviction to the
punishment to which a person convicted of actually committing that offence would be
liable.
Disclosure and possession of classied information
41.Any person who unlawfully and intentionally discloses or is in possession of
classied state information in contravention of this Act is guilty of an offence and is
liable to a ne or imprisonment for a period not exceeding ve years, except where such
disclosure or possession—
(a)is protected or authorised under the Protected Disclosures Act, 2000 (Act No.
26 of 2000), the Companies Act, 2008 (Act No. 71 of 2008), the Prevention
and Combating of Corrupt Activities Act, 2004 (Act No. 12 of 2004), the
National Environmental Management Act, 1998 (Act No. 107 of 1998), or the
Labour Relations Act, 1995 (Act No. 66 of 1995);
(b)is authorised in terms of this Act or any other Act of Parliament; or
(c)reveals criminal activity, including any criminal activity in terms of section 45
of this Act.
Failure to report possession of classied information
42.Any person who fails to comply with section 15 is guilty of an offence and liable
to a ne or imprisonment for a period not exceeding ve years.
Provision of false information to national intelligence structure
43.Any person who provides information to a national intelligence structure that is
false or fabricated, knowing that it is false or has been fabricated is guilty of an offence
and liable on conviction to a ne or imprisonment for a period not exceeding ve years.
Destruction or alteration of valuable information
44.Any person who unlawfully and intentionally destroys, removes, alters or erases
valuable information is guilty of an offence and liable on conviction to a ne or to
imprisonment for a period not exceeding two years.20
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Improper classication
45.(1) Any person who intentionally classies state information as—
(a)top secret;
(b)secret; or
(c)condential,
in order to achieve any purpose ulterior to this Act, including the classication of state
information in order to—
(i) conceal breaches of the Prevention and Combating of Corrupt Activities Act,
2004 (Act No. 12 of 2004), as well as any other unlawful act or omission,
incompetence, inefficiency or administrative error;
(ii) promote or further an unlawful act, inefficiency, or administrative error;
(iii) prevent embarrassment to a person, organisation or the Agency; or
(iv) give undue advantage to anyone within a competitive bidding process.
(2)(a)In the event of subsection (1)(a)is guilty of an offence and liable on conviction
to imprisonment for a period not exceeding 15 years;
(b)in the event of subsection (1)(b)is guilty of an offence and liable on conviction to
imprisonment for a period not exceeding 10 years; or
(c)in the event of subsection (1)(c)is guilty of an offence and liable on conviction to
a ne or to imprisonment for a period not exceeding ve years.
Failure by head of organ of state or official of organ of state to comply with Act
46.A head of an organ of state or an official of such organ of state who willfully or in
a grossly negligent manner fails to comply with the provisions of this Act commits an
offence and is liable on conviction to a ne, or to imprisonment for a period not
exceeding two years.
Extra-territorial application of Act
47.Any act constituting an offence under this Act and which is committed outside the
Republic by a citizen of the Republic or a person ordinarily resident in the Republic
must be regarded as having been committed in the Republic.
Authority of National Director of Public Prosecutions required for institution of
criminal proceedings
48.No prosecution or preparatory examination in respect of any offence under this
Act which carries a penalty of imprisonment of ve years or more may be instituted
without the written authority of the National Director of Public Prosecutions.
CHAPTER 12
PROTECTION OF CLASSIFIED INFORMATION BEFORE COURTS
Protection of classied information before courts
49.(1) In any proceedings where an official or a functionary of an organ of state
intends to le a record that contains classied information, that official or functionary
must alert court officials and the court of the classication of the information and request
court officials to protect the record or parts of the record that contain classied
information from disclosure or publication pending a court determination on the proper
handling of such information during the course of the legal proceedings.
(2) Classied information that is led in the manner contemplated in subsection (1)
may not be disclosed to persons not authorised to receive such information unless a
court, in the interests of justice, and upon considering issues of national security, orders
full or limited disclosure, with or without conditions.
(3) Unless a court orders the disclosure of classied information or orders the limited
or conditional disclosure of classied information, the court must issue directions for the
proper protection of such information during the course of legal proceedings, which may
include, but is not limited to—
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(b)the protection from disclosure or publication of those portions of the record
containing the classied information; or
(c)the implementation of measures to conne disclosure to those specically
authorised to receive the classied information.
(4) A court may not order the disclosure of classied information without taking
reasonable steps to obtain the written or oral submissions of the classication authority
that made the classications in question or alternatively to obtain the submissions of the
Director-General of the Agency.
(5) If it appears to a court that it would, in any hearing held in terms of this section be
in the interest of the national security or in the interest of justice that such hearing be
heldin cameraor that the submission referred to in subsection (4) be not publicly
disclosed, the court may direct that the hearing must be heldin cameraand that any
person not authorised to receive such classied information may not be present at such
hearing.
(6) A court may, if it considers it appropriate, seek the written or oral submissions of
interested parties, persons and organisations but may not disclose the actual classied
information to such persons or parties prior to its order to disclose the classied
information in terms of subsection (2).
(7) A classication authority or the Director-General of the Agency, as the case may
be, in consultation with the relevant Minister, must declassify classied information
required in legal proceedings, either in whole or in part, unless it is strictly necessary to
maintain the classication in terms of this Act.
(8) In addition to the measures set out in this section, a court in criminal proceedings
has the same powers as those conferred upon a court under section 154(1) and (4) of the
Criminal Procedure Act, 1977 (Act No. 51 of 1977), and the said section applies with the
necessary changes.
(9) Any person who discloses or publishes any classied information in contravention
of an order or direction issued by a court in terms of this section is guilty of an offence
and liable on conviction to imprisonment for a period not exceeding ve years.
(10) A court which acts in terms of this section must endeavour to accommodate the
principle of open justice to as great an extent as possible without risking or
compromising the national security.
CHAPTER 13
GENERAL PROVISIONS
Reports
50.(1) Each head of an organ of state must, by no later than 31 December of each
year, submit a report to his or her relevant Minister and forward a copy of such a report
to the Minister and the Agency that describes the application of the protection of
information policies and procedures, and in particular the application of the classica-
tion and declassication standards and procedures of that organ of state during the
preceding year.
(2) The Agency must by no later than 31 December of each year submit an annual
report to the Classication Review Panel and the Minister on the execution of its
responsibilities in terms of this Act.
(3) The Agency must report annually to Parliament on the monitoring carried out in
terms of this Act and on the status of the protection of information practices by all organs
of states.
(4) When the Agency tables its report to Parliament, the Agency must forward copies
of the report to every head of an organ of state.
(5) For the purpose of this section‘‘head of an organ of state’’includes a head of a
Service dened in section 1 of the Intelligence Services Oversight Act, 1994 (Act No. 40
of 1994).
Regulations
51.(1) The Minister must make regulations consistent with this Act regarding—
(a)the controls and measures required to effectively protect valuable, and
classied information, including the appropriate physical security, informa-22
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tion and communication technology security, technical surveillance counter-
measures and contingency planning for the protection of state information;
(b)the responsibilities of a head of an organ of state to ensure that valuable and
classied information are adequately protected;
(c)training and guidance to be supplied to state employees in respect of their
responsibilities to ensure that valuable and classied information are
adequately protected;
(d)the organisation and administration of the security function at organs of state
to ensure that state information is adequately protected, including the
establishment of security committees and security policies within organs of
state;
(e)procedure to be followed and manner in which valuable information must be
protected from alteration, destruction or loss;
(f)the marking of classied documents;
(g)restrictions on how classied information may be transferred from one person
to another and from one institution to another;
(h)measures to prevent the over-classication of state information, including
training and guidance to be supplied to staff members on how to classify state
information and how to prevent the over-classication of state information;
(i)the roles of any national intelligence structures with regard to the protection of
classied information;
(j)the reporting of security breaches at any organ of state; and
(k)the procedure to be followed and manner in which a record that is reported and
returned under section 15 to the South African Police Service or the Agency,
as the case may be, must be dealt with;
(l)the procedure to be followed and the manner in which employees, officials,
staff members or any other person who in any manner assists or has in the past
assisted in carrying on or conducting the business of an organ of state may
disclose breaches of the law or unlawful acts or omission, incompetence,
inefficiency or administrative error;
(m)the procedure to be followed by the institutions referred to in section 181 of
the Constitution to access classied information and conditions relating to the
treatment and protection of such information in terms of section 7(1) for the
fullment of their constitutional and legislative mandate, including investi-
gating and reporting.
(2) The Minister must make the regulations referred to in subsection (1) within a
reasonable period from the date on which this Act takes effect.
(3) The Minister, subject to the National Archives and Records Services of South
Africa Act, 1996 (Act No. 43 of 1996), and after consultation with the Minister of Arts
and Culture, may make regulations regarding the protection, transfer, destruction or
alteration of valuable information and must publish the draft regulations for public
comment.
(4) The Minister must, within 12 months of the commencement of this Act make
regulations consistent with this Act regarding—
(a)broad categories and subcategories of state information that may be,
classied, downgraded and declassied and protected against alteration,
destruction or loss;
(b)categories and subcategories of state information that may not be protected in
terms of this Act; and
(c)national information security standards and procedures for the categorisation,
classication, downgrading and declassication of state information, which
standards and procedures include but are not limited to—
(i) organisation and administration of classied information security
matters at organs of state;
(ii) personnel security, including training, awareness and security screening;
(iii) information and communication technology security;
(iv) physical security for the protection of state information in consultation
with the Minister of Police; and
(v) continuity planning.
(5) Before the Minister makes regulations regarding any categories of state
information in terms of subsection ( 4)(a), the Minister—23
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(a)must by notice in theGazetteprovide an opportunity for organs of state and
other interested persons to submit comments in respect of the categorisation in
question; and
(b)may take into account any comments received as a result of the notice
contemplated in paragraph(a).
(6) Subsection (5) applies to any modication made to the categories of state
information in terms of subsection (4).
(7) No regulation made under subsection (4), may impede or prevent the National
Archives or any other archive from preserving and managing public records in terms of
the National Archives and Records Service of South Africa Act, 1996 (Act No. 43 of
1996), or other applicable law or ordinance.
(8) Any draft regulations made under this section must be tabled in Parliament for
approval at least 30 days before the regulations are promulgated.
(9) Any regulations made under subsection (1) may prescribe penalties of a ne or of
imprisonment for a period not exceeding three years for any contravention thereof or
failure to comply therewith.
Transitional provisions
52. (1) The provisions of this Act are suspended from operation pending the
establishment of policies and procedures contemplated in Chapter 3 and the regulations
contemplated in section 54, or for a reasonable period from the date on which this Act
takes effect, except—
(a)Chapter 3;
(b)section 13;
(c)section 32;
(d)section 17;
(e)Chapter 10;
(f)section 51;
(g)the denitions and principles which give effect to the sections referred to in
paragraphs(a)to(f);
(h)Chapter 13; and
(i)subsection (3).
(2) Subject to this Act any state information classied under the Protection of
Information Act, 1982 (Act No. 42 of 1982), MISS Guidelines or any other law must
remain classied notwithstanding the repeal of such law.
(3) Subject to section 15—
(a)Any state information classied under MISS Guidelines, the Protection of
Information Act, 1982 (Act No. 42 of 1982), or any other law, must be
reviewed and an audit report must be compiled by the head of the organ of
state concerned on the classied status of all classied information held by
that organ of state.
(b)The Agency must review and compile an audit report on the classied status
of all classied information of a defunct organ of state or the Agency that has
no successor in function.
(c)The relevant head of an organ of state or the Agency, as the case may be, must
submit an audit report within a reasonable period to the Classication Review
Panel.
(4) In conducting a review in terms of subsection (3) the relevant head of the organ of
state concerned or the Agency, as the case may be, must apply the conditions for
classication and declassication in section 8 to—
(a)conrm the classication of the classied information;
(b)declassify the classied information; or
(c)reclassify the classied information.
(5) The head of the organ of state concerned or the Agency, as the case may be, must
in accordance with section 31 transfer the declassied information contemplated in
subsection (3)(b)to the relevant archive.
Repeal of law
53.(1) Subject to section 52, the Protection of Information Act, 1982 (Act No. 84 of
1982), is hereby repealed.24
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Short title and commencement
54.This Act is called the Protection of State Information Act 2011, and comes into
operation on a date xed by the President by proclamation in theGazette. 25

MEMORANDUM ON THE OBJECTS OF THE PROTECTION OF
STATE INFORMATION BILL
1. BACKGROUND
The Protection of State Information Bill (the Bill) will ensure a coherent approach
to the protection of valuable information and the classication and declassication
of state information. It will create a legislative framework for the state to respond
to espionage and other associated hostile activities.
2. OBJECTS OF BILL
2.1 The Bill provides for classication and declassication of state information,
methods of classifying state information and classication levels.
2.2 The Bill confers on the head of an organ of state or a member at a sufficiently
senior level the authority to classify or declassify state information.
2.3 The Bill provides for a procedure for regular reviews and to request access to
classied information and status review.
2.4 The Bill further establishes a Classication Review Panel to review and
oversee status reviews, classication and declassication and to receive
reports on the review of the status of classied information conducted by
organs of state.
2.5 The Bill creates a legislative framework for the state to respond to espionage
and hostile activities and to provide for certain other offences and penalties.
2.6 The Bill repeals the Protection of Information Act, 1982 (Act No. 84 of 1982).
3. STRUCTURE OF BILL
Chapter 1: Denitions, objects and application of Act
This chapter provides for denitions and interpretation and for the objects of the
Act. This chapter further provides for the application of the Act to apply to all
organs of state with regard to the protection of valuable information, alteration,
destruction or loss. In respect of classication, reclassication and declassication
this Act applies to the security services of the Republic and the oversight bodies
referred to in Chapter 11 of the Constitution. The provisions of the Act may be
made applicable by the Minister, on good cause shown, by publication in the
Gazette, to any organ of state or part thereof, that applies in the prescribed manner.
Chapter 2: General principles of state information
This chapter outlines the principles which underpin the Act and which inform its
implementation and interpretation.
Chapter 3: Policies and procedures
The head of an organ of state where applicable must establish policies and
procedures.
Chapter 4: State information that requires protection against alteration,
destruction or loss
This chapter sets out what information may be protected against alteration,
destruction or loss (known as ‘‘valuable information’’); the process of determining
information as valuable; and how such information is to be protected.26

Chapter 5: Classication and declassication of state information
This chapter provides for—
Nature of classied information;
Method of classifying state information;
Classication levels;
Authority to classify state information;
Conditions for classication and declassication;
Report and return of classied records;
Authority to declassify classied information; and
Maximum protection periods.
Chapter 6: Regular reviews, request for access to classied information and
status review
The head of an organ of state must review the classied status of all classied
information held by that organ of state and must do so at any time but at least once
every ten years. This chapter further provides for a request for access to classied
information. In specic circumstances where the state information reveals
evidence of a substantial contravention of, or failure to comply with the law or an
imminent and serious public safety or environmental risk and the public interest in
the disclosure of the state information clearly outweighs the harm that will arise
from the disclosure, the head of the organ of state concerned must declassify the
classied information in accordance with this Act.
Chapter 7: Classication Review Panel
This Chapter provides for the establishment of a Classication Review Panel that
must review and oversee status reviews, classications and declassications,
receive reports and receive once a year reviews on the status of classied
information conducted by the organs of state.
Chapter 8: Appeals
This Chapter provides for an internal appeal procedure and an application to court
procedure. In circumstances contemplated in section 19 (3) a requester may apply
directly to a court for urgent relief.
Chapter 9: Transfer of records to National Archives and release of declassied
information to public
This chapter provides for the transfer of classied information to the National
Archives or other archives established by law. It further provides for the release of
declassied information to the public in accordance with the provisions of this Act,
the Promotion of Access to Information Act or any other law.
Chapter 10: Implementation and monitoring
This chapter provides for the responsibilities of the Agency.
Chapter 11: Offences and penalties
This chapter provides for the following offences: Espionage offences; receiving
state information unlawfully; hostile activity offences; harbouring or concealing
persons; interception of or interference with classied information; registration of
intelligence agents and related offences; attempt, conspiracy, and inducing another
person to commit offence; disclosure of classied information; failure to report
possession of classied information; provision of false information to national
intelligence structure; destruction or alteration of valuable information; improper
classication; failure by head of organ of state or official of organ of state to comply
with Act; prohibition of disclosure of a state security matter. The penalties may27

vary on the basis of the nature of the offence and the actual or potential harm
caused.
Chapter 12: Protection of classied information before courts
This chapter outlines the process to be adopted by courts in the handling of
classied documents that form part of court records. All classied documents shall
remain protected by courts unless the courts direct otherwise.
Chapter 13: General provisions
This chapter deals with the submission of reports by organs of state and the
Agency; the issuing of regulations by the Minister; and certain transitional
provisions. The provisions of the Act are suspended pending the implementation of
policies and procedures and the regulations, with the exception of several identied
sections.
4. DEPARTMENTS OR BODIES CONSULTED
A draft Bill was distributed to the Department of Police, the Department of Justice
and Constitutional Development and the Department of Defence and Military
Veterans for comments.
5. FINANCIAL IMPLICATIONS FOR STATE
In light of the establishment of the Classication Review Panel there will be
nancial implications for the State.
6. PARLIAMENTARY PROCEDURE
6.1 The State Law Advisers and the Ministry of State Security are of the opinion
that this Bill must be dealt with in accordance with the procedure established
by section 75 of the Constitution since it contains no provision to which the
procedure set out in section 74 or 76 of the Constitution applies.
6.2 The State Law Advisers are of the opinion that it is not necessary to refer this
Bill to the National House of Traditional Leaders in terms of section 18(1)(a)
of the Traditional Leadership and Governance Framework Act, 2003 (Act No.
41 of 2003), since it does not contain provisions pertaining to customary law
or customs of traditional communities.
Printed by Creda Communications
ISBN 978-1-4850-000-0
28