All crimes/offences have an “unlawfulness” requirement built in. You are only liable to criminal punishment if your conduct is “unlawful”. Unlawfulness is judged by the “legal convictions of the community” but ultimately, by the values in the Constitution. Thus the unlawfulness requirement in every offence is really a requirement that one’s conduct must be unconstitutional. It is therefore not possible to be convicted of any offence, including any under the Protection of State Information Bill (once enacted), if one’s conduct is Constitutional. That is, if you would be permitted by the values in the Constitution (such as the rights to freedom of the press and to information and expression) to possess or disclose classified information, doing so would be lawful, and one cannot be convicted of any offence for doing so.
Although this defence which I will call the “Consitutional-lawfulness defence” must be recognised by our Courts, I appreciate that it will come as little consolation to anyone contemplating possessing or disclosing classified information – until the courts have recognised the defence and set out its parameters and the relevant factors for consideration. This raises a problem, as things stand, of uncertainty.
Certainty of law (which arises out of the rule of law – also entrenched in the Constitution) requires, at the very least, that people who are subject to the law must be able to determine with reasonable accuracy, what they are permitted and not permitted to do.
Although the overriding Constitutional-lawfulness defence must be recognised, I do think it would be preferable, even demanded by the rule of law, for the parameters and relevant factors of this defence to be spelt out in the Bill, in as much detail as possible, so that anyone contemplating ostensibly contravening the Protection of State Information Bill (once enacted), will have as much certainty as possible.
Although I am open to persuasion, it is not clear to me that the latest amendments to the Bill (in Bill B6D) achieve what is required. In the circumstances, and assuming that the Bill in its current form is made law and enforced, the Consitutional-lawfulness defence may need to be relied on.
* Thanks to David O Sullivan for taking an interest in this argument and for challenging me to summarise it as (I hope) I have done here.
** This argument was originally published in very brief form on Politicsweb in Dec 2011 (available at
*** The full piece (including the argument that despite the existence of a defence in the “unlawfulness” requirement, the demands of legal certainty require that the defence is set out) was published in the South African Journal of Human Rights, Vol 28, Issue 2, 2012. Ironically, although I wrote it, I am not permitted to post it on the net. It is possible to access it, by subscribing to the journal, or otherwise purchasing a copy through Sabinet (for a whopping R200 – none of which I will ever see). If it were my choice, I would make it available freely.

  1. Tsakani says:

    Another element of criminal liability is intention is it not? So what if you possessed or publish the information though while knowing its a crime created by that statue, you thought you were acting lawfully on grounds of the justification you just mentioned. Would be it possible in this instances to raise both defenses?

    • James Grant says:

      Hi Tsakani
      You are right – depending on the fault required. A possible mistake of law could be claimed. I cover this in some detail in the actual article – published in the SAJHR in 2012 – see the full reference in the post.

  2. Tsakani says:

    Can’t those rights be limited in terms of section 36 of out constitution.

  3. deanjoffe says:

    Great Piece. Thanks James

  4. Mbeks says:

    Good piece. The first word on paragraph 3 should be ‘certainty’ and not ‘certainly’.

  5. Dee says:

    Super clear and coherent. Thanks for this.

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