By Kim Hawkey – editor

Despite receiving much publicity over the past few months, one aspect of the controversial Protection of State Information Bill (B6 of 2010) has not received much attention, yet it could have a drastic impact on the court system.

Chapter 12 of the Bill, titled ‘Protection of state information in courts’, deals with the practicalities of what will happen when the record in a matter before court contains classified information.

Section 52(1) of this chapter in the Bill provides:

‘In any proceedings where an official or a functionary of an organ of state intends to file a record that contains classified information, that official or functionary must alert court officials and the court of the classification of the information and request court officials to protect the record or parts of the record that contain classified information from disclosure or publication pending a court determination on the proper handling of such information during the course of the legal proceedings.’

Section 52(2) further provides:

‘Classified information that is filed 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.’

These two subsections create an onerous obligation on court officials to ensure that any classified information in any document, as defined in the Bill, is protected from publication or disclosure, which would not only apply to disclosure to the media, foreign states, the public in general, etcetera, but also to those within the court precinct itself. Bearing in mind the large quantity of information that may potentially be classified in terms of the Bill, as well as the number of organs that can classify such information – including municipal managers, the police and chief executive officers of public bodies – this is a heavy burden that a court system already under pressure may struggle to meet.

The consequences of a failure to do so, however, including due to negligence, may be met with the sanction of ten years in prison (s 49(d) of the Bill).

In addition, the court itself will have to make a determination about whether the classified information may be disclosed, in whole or in part or not at all, and, if disclosed, whether any conditions should be attached to such disclosure. In doing so, the court has to consider the open-ended notion of ‘national security’ – one of the contentious aspects of the Bill. The court also has to take reasonable steps to obtain and consider submissions of the respective classification authority or director-general (and other interested parties if the court deems this necessary) in making this decision.

If the court decides not to order disclosure, it is then obliged to issue directions ‘for the proper protection of such information during the course of legal proceedings’.

This may include holding proceedings in camera, preventing portions of the court record from being made public and/or implementing measures to ‘confine disclosure’ to only those specifically authorised to receive the information. (This, in itself, is a challenge to the principle of open justice, although it is noted that, in s 52, the Bill states that a court acting in terms of this section must endeavour to accommodate this principle – it is, however, subject to the overriding principle of national security.)

Anyone who discloses or publishes classified information in contravention of such a court order or direction issued in terms of s 52 may face up to five years’ imprisonment.

Not only will the Bill increase the workload of the courts (which, in addition to the above, will have to consider applications by those aggrieved by a classification authority’s decision, requests for information, appeals of Classification Review Panel decisions, applications for urgent relief, criminal matters involving those alleged to have breached the Bill’s provisions, as well as general matters that involve classified information), but it will require significant investment in court infrastructure and competent staff to ensure the high level of security deemed necessary for classified information.

Without this investment, it is unclear how the country’s courts – already under strain from a lack of resources, lengthy delays and backlogs – will handle this additional time-consuming bureaucratic burden.

At present, many lawyers will attest to an administration in disarray at many of the country’s courts, where documents and transcripts regularly disappear from court files, where entire court files go missing and occasionally even the duplicate file vanishes. The filing system at many of our courts is already wanting in several respects.

It is hoped that this chapter of the Bill is scrutinised further and that there will be proper consultation with the heads of courts and other legal functionaries likely to be affected by its provisions, in order to ensure that compliance with the legislation, when enacted, is possible without further compromising an already strained court administration.

This article was first published in De Rebus in 2012 (April) DR 3.