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Cape Town - A key clause of the protection of information bill still falls foul of the Constitution because it infringes on the presumption of innocence, a senior counsel has warned.
The Open Democracy Advice Centre (Odac) said on Wednesday it solicited legal opinion from SC Colin Kahanovitz, and that he believed section 38 of the bill would place too heavy an onus on whistleblowers to prove that they are not guilty of a crime.
The section criminalises disclosure of classified information and prescribes prison sentences of up to five years for contravention.
The proposed legislation is now in a second year of deliberations.
The latest version of the bill allows for exceptions where disclosure is protected under the Protected Disclosures Act, the Companies Act or any other law.
Kahanovitz said the clause "imposes an unreasonable limitation on an accused person's right to be presumed innocent, and would therefore likely be found to be unconstitutional".
Storm of protest
"As it stands, the drafting means that the person accused of the crime would have to prove to the court that one of the exceptions listed [such as when the accused is a protected whistleblower] applied and therefore that in their case they were not guilty of the crime," Odac quoted Kahanovitz as saying.
"This creates a 'reverse onus' which violates the right of the accused to be presumed innocent, and goes against the general rule that the state is the party required to prove all the elements of the crime beyond a reasonable doubt."
Odac has passed the legal opinion to MPs, who were due to resume deliberations on the bill later on Wednesday.
The bill has provoked a storm of protest since it was re-introduced in Parliament in mid-2010, with critics saying it was a crude attempt to clamp down on the media and keep citizens in the dark about the government's actions.
In June, the ANC backed down on a number of contentious issues after the Congress of SA Trade Unions threatened to challenge the legislation in the Constitutional Court.
One of Cosatu's main concerns was the lack of protection the legislation would afford whistleblowers.
The new version of section 38 was recently proposed by the ANC, apparently with that in mind.
The ANC also relented on calls to restrict the right to classify information to the intelligence services, but has in recent weeks appeared reluctant to impose clear limits on the instances where classification would be justified.
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