DEBATE ON THE NATIONAL KEY POINTS ACT OF 1980
I S Mfundisi
Friday, 08 November 2013
The National Key Points act is a relic of the old apartheid laws which the democratic order inherited holus bolus while other laws that preceded the Interim Constitution of 1993 were tweaked and tinkered if not repealed altogether. It is not surprising that Murray Hunter terms it: “A dinosaur that has survived the extinction and is wandering around in contemporary society”.
The unwieldy powers given to the Minister who administers the act are the source of concern. The problems lie in the secrecy and lack of accountability and lack of clarity about what constitutes an offence under this act. The Minister under whose authority the Act falls has total and unfettered discretion in designating places as key points, which is contrary to principles of accountability and transparency.
Section 3 of the Act pertinently states that: “The owner of the national Key Point concerned shall after consultation with the Minister, at his own expense, take steps to the satisfaction of the Minister in respect of the said point”. If this were followed to the letter we would not be expected to fund the upgrades at Nkandla.
The secrecy surrounding the application of the Act is surprising when even members of parliament do not know how many National Key Points are there let alone which are they. This defies a supposed democratic transparent government of our age.
At the time the idea of the act was hatched, institutions of government such as police stations, military basis and all instances manned by security forces were not identified as key points as the users, the security forces, would protect and secure the installations themselves but these days it is so scary when even the police are protected by private security companies.
If the Waterkloof Air Force Base, which has more stringent security measures than an average National Key Point is not one, like President Zuma made it clear to his cabinet, we shall keep guessing which institution or installation is a Key Point. We in the UCDP believe that the days of secrecy are over; the South African citizens deserve to be treated with trust and respect and be told which institutions are National Key Points. If a Military Air Force Base is not a National Key Point, What is? We need to know. After all knowledge is power.
The absence of a public list of Key Points results in that anyone can claim a facility as a Key Point as happened in January when we saw pictures of warders at Green Point Prison fatally beating a prisoner and Hon Vincent Smith as Chair of the portfolio committee on Correctional Services berated them for breaking the law by taking photos at a National Key Point. He placed emphasis on the photographs rather than on the assault that resulted in death at the hands of government officials. Evidence was lost as photos were destroyed.
We notice that government always applies a “better safe than sorry” approach in some cases and unfortunately this default position more often than not ends up in the rights of the public being compromised as it was the case with one clause in the Protection of State Information Bill that sought to overrule the Promotion of Access to Information Act.
The UCDP stands to speak out and state that the Act falls foul of legality, an important aspect of the rule of law as there is no list of key points, something that makes it impossible for the public to know where they should behave accordingly. The concomitant vagueness and uncertainty render legal compliance impossible. Prof Pierre de Vos summed it up well when he said: “We are unable to comply with the law because we are not allowed to know what the law has prohibited”.
Let us hope that as South Africans speak, they will be heard and the goodness will follow.
I thank you