What a day in court might look like if secrecy bill becomes law

While academics and theorists debate potential scenarios which may arise out of the Protection of Information Bill let’s take a trip in a time machine to a bail application that we can look forward to at the end of next year.

Hopefully this will finally bring home the reality as opposed to the theory.

BAIL APPLICATION FOR JOURNALIST ARRESTED IN TERMS OF SECTION 33 OF THE PROTECTION OF INFORMATION BILL.

The parties are before a magistrate in the Johannesburg Magistrate’s Court and the advocate acting on behalf of the journalist has just finished reading his client’s affidavit in support of the bail application into the record and handed it up.

MAGISTRATE: Advocate Smith I accept for argument’s sake that your client’s evidence is that he has a defence in terms of the public interest clause (if it is later inserted in the bill after a Constitutional Court ruling and then the bill enacted) and that this may (not “does”) stand in his favour in respect of not posing a flight risk but I have substantial difficulty in believing that he does not constitute a threat to the investigation or pose a danger to the safety of the public. Your client has been found in possession of classified documents which, in terms of the legislation concerned, is a breach of the national security of South Africa. According to your client’s papers this is not in dispute.

ADVOCATE SMITH: If it pleases the court Your Worship my client has obtained documents which clearly demonstrate that the building of the toll roads in Limpopo were as a result of improper tenders and that senior members of the ministry of public works have received substantial benefits as a result of their unlawful actions.

MAGISTRATE: Sir I understand all that and no doubt the merits or demerits of the documents involved in this case will be debated at trial what I am trying to ascertain for the purpose of the bail application is how your client came into possession of documents that have been classified in the interests of our national security. If your client admits, as he appears to do in the papers, that he was given these documents by a member of the department itself then that in itself is an offence and the fact that he refuses to disclose who that person is offers little comfort in terms of his co-operating with authorities during the investigation. In addition it seems that there is the real prospect of your client interfering in the investigation as his disregard for legislation designed to protect our top secret documents clearly shows.

ADVOCATE SMITH: Your Worship the documents concerned, which were shown to the court in camera, can have no other meaning but that suggested by my client. As such it is vital that the public know where billions of rands of their money is going.

MAGISTRATE: Advocate Smith the authenticity and value of the documents are not for this forum to decide, the charges relate to your client breaching the terms of Section 33 of the Protection of Information Bill. This, if you don’t mind me repeating, does not appear to be in dispute. If that is the case on what grounds might I assume that the accused, who has chosen to ignore legislation carrying dire consequences, will not continue to do so but rather will henceforth apply for documents to be declassified?

ADVOCATE SMITH: Your worship the accused cannot wait for documents to be declassified because it could take months or even years and the parties who are responsible for doing so are part of the problem. There is reason to believe that certain individuals may even destroy evidence.

MAGISTRATE: Again sir you are not helping the court. What you are saying is that your client has to break the law in order for him to achieve what he believes to be justice. Can you imagine what would happen if the courts allowed this to be carried on by the entire population. Your client can’t break the law for some greater good. There are procedures which are available to the public for declassifying documents. This application revolves around issues of national security and the courts are forced to weigh that concern in when deciding on whether to allow bail

ADVOCATE SMITH: Your Worship my client has complied with all the requirements for his release on bail. He has submitted his full details, his address has been verified, he has no previous convictions or cases pending …

MAGISTRATE: Advocate Smith your client also has to satisfy this court in respect of other terms of the provisions of Section 60 of the Criminal Procedures Act and as I have pointed out his infringement of legislation, which is designed to protect our national security, means that I cannot ignore that there is a risk that he poses a danger to public safety and the investigation itself.

ADVOCATE SMITH: Your Worship I humbly submit to the court that the continued detention of my client would be an infringement of his constitutional rights and that it is in the interests of justice that he be released even if the court believes that stringent conditions be imposed.

MAGISTRATE: Thank you sir is that the application?

ADVOCATE SMITH: It is Your Worship.

After the state has led evidence by members of the police, intelligence and other individuals who are highly concerned that proof of corruption be released to the public … sorry my mistake that should read, documents in the interests of national security be protected, the journalist may very well find himself in jail pending the trial.