Updated: February 27, 2021
South Africa’s President Cyril Ramaphosa has requested Parliament to reconsider the Protection of State Information Bill and the Liquor Products Amendment Bill.
The presidency said the request was based “on reservations the President has about the constitutional validity of provisions in the draft legislation.”
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The President has, in writing, drawn the attention of the Speaker of the National Assembly, The Honorable Thandi Modise, to constitutional reservations emanating from the Bills which have been referred to the President for assent and signing into law in terms of Section 79 of the Constitution.
The section of the Constitution requires the President to itemise any reservations in relation to a Bill.
For the Protection of State Information Bill, which was first submitted to the Presidency in November 2013, the President has requested the National Assembly to reconsider the Bill.
The request follows the President’s receipt of a number of legal opinions as well as public submissions received by the Presidency over the lifetime of the Bill.
The Bill provides for the protection of sensitive state information; a system of classification, reclassification and declassification of state information; the protection of certain valuable state information against alteration, destruction or loss or unlawful disclosure, and regulates the manner in which state information may be protected.
The presidency said Mr. Ramaphosa is concerned that “certain provisions in the Bill are in conflict with Sections 16 and 32 of the Constitution which respectively address the right to freedom of expression, which includes freedom of the press and other media, and the right of access to any information held by the state and is required for the exercise.”
It added: “The President believes the Bill as it stands limits the freedom of the media and everyone else to access or receive and impart information and prohibits people from accessing certain information held by the state.
“The President also has reservations about the broad nature of some of the definitions in the Bill that may fail to provide adequate guidance to officials tasked with taking decisions in terms of the legislation.
“Furthermore, the President is concerned about deficiencies in the public-interest defence provisions in the Bill, including criminal liability on the part of whistle-blowers who may be in possession of documents that may be wrongly classified to cover up corruption or hide illegalities or maladministration.
“The President is of the view that the lack of a public interest defence will create an unjustifiable, chilling effect on the freedom of expression and limitations in this regard could be open to legal challenge on the basis that the limitations are arbitrary and irrational.
“Other concerns flagged by the President relate to provisions on the classification and declassification of documents.
“The President’s reservations extend also to the fact that the National Council of Provinces had not processed the Bill in spite of provisions in the draft legislation that have an impact on the interests of provinces, including the management of provincial archives.
“With regard to the Liquor Products Amendment Bill, the President is requesting the National Assembly to reconsider the Bill which, among other measures, provides for requirements regarding beer, traditional African beer and other fermented beverages, and repeals a provision on the authorisation of certain alcoholic products.
“The Bill contains a new Section 68, which deals with requirements regarding traditional African beer.
“The Bill describes how such beer should be made and what its composition should be.
“The President is of the view that the Bill should have been referred to the National House of Traditional Leaders in terms of Section 18(1)(a) of the Traditional Leadership and Governance Framework Act of 2003.
“The President’s view is based on the fact that traditional beer is an intrinsic part of a number of cultural practices. Customary practices require that the production and consumption of such beverages be effected in a particular manner.
“The President believes the Bill will regulate how traditional beer is produced and such, the Bill will affect its production, distribution and consumption.
“The President notes that the State Law Adviser had recommended that the Bill not be referred to the National House of Traditional Leaders, in spite of the inclusion of traditional African beer in the draft legislation, which has implications for customary law or customs of African traditional communities.
“The President points out that Section 211 and section 212 of the Constitution recognize the role of traditional leadership and its institutions in matters affecting local communities.”