n South African Journal on Human Rights - Defences under the Protection of State Information Bill : justifications and the demands of certainty

Volume 28, Issue 2
  • ISSN : 0258-7203



The Protection of State Information Bill (the Bill) has been heavily criticised on several grounds, including that it contains no 'public interest' defence. However, when properly understood, the Bill does contain a public interest defence, or at least, it contains the basis on which disclosing or possessing classified information may be recognised as the right thing to do - as justified - and therefore as lawful and not subject to criminal liability. This defence operates on the requirement of unlawfulness, required for all criminal liability. Unlawfulness requires courts to engage in a balancing exercise of the values, interests and rights of the respective parties. This makes the requirement of unlawfulness the primary mechanism by which the criminal law may honour its constitutional obligations to develop and give expression to the values and rights in the Constitution. This defence, together with some others, may be recognised as a function of very basic, but well recognised, principles of criminal law - as informed by the values in the Constitution of the Republic of South Africa, 1996. Once this is recognised, it seems necessary for this defence to be expressly set out in the Bill in order to avoid violating the principle of certainty and ultimately the rule of law.

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