THE NATIONAL KEYPOINTS ACT

Following an alarming increase in the number of photographers who are being harassed by both the South African Police and Metro Police it is essential for photographers to know where they stand legally when it comes to where, and what they photograph.

The law that prohibits photographers from photographing certain places of strategic importance (installations) is the notorious National Key Points Act, 1980 (Act 102 of 1980), that is currently under review by the Minister of Police, Mr. Nathi Mthethwa. This law specifically applies to Strategic Installations and not public places. The incidents of Police forcefully deleting photojournalists images captured in public places constitutes destruction of personal property, a criminal offence. These incidents should be reported to the Independent Police Investigative Directive  (IPID, formerly the ICD) as well as to the South African National Editors Forum (SANEF).

There is currently no law in South Africa that prevents photographers from taking photographs on private property, however the law of trespass prevents or restricts access to private property. Bearing in mind that people have a Right to Privacy, especially around the financial exploitation of a photograph/film that they are featured in, permission should always be obtained by a photographer when entering and photographing someone on private property, failing which the photographer may be charged with trespassing.

The following is an excerpt from the book ‘EXPOSED – The Business of Photography’ by Deryck van Steenderen, published by Verse Creative.

National Key Points or Strategic Installations are places that the government determines to be important enough to the well being of the country to be protected and restrict access and activities to.

The National Key Points Act was originally implemented by the apartheid government under the guise of protection from terrorism. Unfortunately the current government uses it at it’s convenience. Whilst protection from acts of terrorism is essential the loosely worded act gives the government broad sweeping powers open to it’s interpretation.

According to the South African Police Service (SAPS) web site:

The transfer of functions from the Department of Defence to the Department of Safety and Security was signed by the State President on the 10th of February 2004.

Categories of National Key Points:

  • Electricity
  • Petro Chemical
  • Munitions
  • Air transport
  • Water supply
  • State Administration
  • Fiscal
  • Chemical Industries
  • Data Processing
  • Research
  • Communications
  • Heavy Industries”The Protection of Strategic Installations Act” serves to protect installations of strategic importance like power stations, military installations, Government buildings, ports, harbours and railway stations.

Photography is listed as a prohibited activity of and around these installations. There is currently no published list available to the public of these ‘strategic installations’. The government claims that publishing a list in the public domain creates a security threat to the strategic installations. The logical question is if we don’t know what or where they are how do we know not to photograph them?

A member of the SAPS, charged with safety and security in the RSA, can refuse you permission to photograph State owned property claiming protection under this vague Act. Whilst photojournalists have been recently arrested and detained under this act the charges have been dropped. If arrested under this act, the SAPS may confiscate a photographers camera equipment as evidence, for which they must issue a property receipt. They may not delete the images but may use the images as evidence in court. The photographic equipment must be returned if the charges are dropped.

The following extract is from an article by Robyn Curnow of CNN titled “Why Mandela still matters to South Africans fearful for future”

“Ironically, the government is using the National Key Points and Strategic Installations Bill – previously known as the feared National Key Points Act – to increase the powers of the security structures to declare, in secret, buildings that are of “national importance.” This law was created in 1980 at the height of the state of emergency and policed by apartheid forces. 

When reporters stood on the perimeter of the military hospital believed to be where Mandela was being treated, they were threatened with arrest if they filmed the hospital building. One photographer was detained briefly and has since been released. The same law has been evoked in a case against two news agencies, which apparently set up cameras outside Mandela’s Eastern Cape home.

Legal experts hope that a case goes to court because they say this “key points” legislation would never pass a constitutional test.” 

 

 

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