Provisions Relating to the Protection of Information in the South African Defence Act*

Tertius Geldenhuys
Professor, Department of Criminal & Procedural Law University of South Africa

* Funding for the larger project of which this article is part was kindly provided by the United States Institute for Peace, the Canadian Embassy Dialogue Fund in South Africa, the Royal Netherlands Embassy in South Africa and the Hanns Seidel Foundation

Published in African Defence Review Issue No 17, 1994

* The provisions of the South African Defence Act that deal with the protection of information are not the only ones dealing with the protection of information relating to military matters. To a large extent, the Protection of Information Act, Act 84 of 1982, was enacted to deal with the same matter. The provisions in the Defence Act can therefore not be viewed in isolation, but should be viewed as part of a larger picture.

Section 23 of the Constitution of the Republic of South Africa, Act 200 of 1993, provides that every person has the right of access to all information held by the state or any its organs, at any level of government, in so far as this information is required to exercise or to protect any of his rights. This provision forms part of the Charter of Fundamental Rights which enjoys special protection. In fact, in terms of the Constitution, any Act of Parliament which is in conflict with the Constitution may be declared invalid by the Supreme Court or the Constitutional Court. Any revision of existing legislation should therefore be done in a way which would ensure its validity in terms of the constitution.

The wording of section 23 of the Constitution necessitates a completely new approach towards information held by the state. Until now the government has followed a 'blanket secrecy' approach towards the protection of information. This meant that all information held by the state was protected by means of legislation. No information that an employee of the state may have obtained during the course of his employment, could be disclosed to anyone but an employee of the state who needed this information in order to perform his duties in a proper manner, unless such a disclosure was authorised by the appropriate authority, which is normally the head of the department. This meant that a citizen wishing to obtain information from the state found it extremely difficult and often was refused such information, simply because the appropriate authority thought best to 'play it safe' and refused to authorise the disclosure. Furthermore, in terms of existing legislation, disclosure to outsiders would not only render the person making the disclosure criminally liable, but also the person receiving it. Should the recipient pass this information on to others, he would be criminally liable for that disclosure as well. This approach towards the protection of information will have to be revised completely. A citizen will, from now on, be entitled to obtain that information required to protect or exercise his or her rights. Access to that information may, of course, still be limited, but only to the extent that is allowed by the provisions of sections 33 and 34 of the Constitution. Section 33 deals with limitations on the rights entrenched in chapter 3 of the constitution and section 34 with the proclamation of a state of emergency

Clearly the Constitution now necessitates the promulgation of legislation to regulate access to information by citizens. This could be based on the Freedom of Information Acts in operation in other countries. Without such legislation the government may be faced with enormous problems in dealing with requests for information since every department, including the Department of Defence, would probably develop its own procedures. This will inevitably result in persons taking the departments to court, wastage of money and time and will eventually, only over some years, result in the courts developing uniform guidelines to regulate the access to state-held information.

Apart from the imminent changes to the State's approach to the protection of information, the need for the adoption of some sort of Data Protection Act has also increased dramatically in the light of the Constitution. A Data Protection Act regulates the gathering of information concerning individuals and the provision of such information to others including the exchange of such information between government departments. This could also have an effect on the Defence Act.

Finally, South Africa, and especially the Department of Defence, is increasingly making use of computers and communication via telephone lines and otherwise between computers. This opens up the possibility of people (like hackers) gaining access to extremely sensitive data stored on computers of the Department of Defence. All the major Western nations have adopted legislation in which offences relating to the use and abuse of computers were created. Some countries, such as the UK, have even adopted special provisions regulation the access to computers of the Department of Defence. In this regard South Africa lags far behind and there is an urgent need for such legislation in South Africa. In fact at present a person who gains access to the computers of the Department of Defence via a telephone line, will not be guilty of any offence. This is untenable and should immediately be addressed. .

In conclusion, while the existing provisions in the Defence Act regarding the protection of information (sections 89, 101, 118 and 119) could be retained, various additional measures are required including:

the insertion into the Act of provisions regulating access to computers of the Department, declaring the gaining of unauthorised access to the computers an offence and creating the necessary powers to conduct investigations into suspected intrusions;



the enactment, of provisions regulating the classification of documents and the security grading of personnel; and



the forming of an interdepartmental working group (which should have the power to co-opt individuals or specialists from outside) to make recommendations for a new comprehensive policy with regard to the protection of and access to government-controlled information and new legislation to achieve this.