The Provisional Oversight Act does not stipulate that withholding information is a crime, former spy boss Billy Masetlha's attorney argued in the Hatfield community court yesterday.
Masetlha is accused of contravening the act by withholding evidence from NIA inspector-general Zolile Ngcakani about the surveillance of businessman Saki Macozoma.
Defence attorney Neil Tuchten said Ngcakani was entitled to ask questions, but witnesses were not obliged to answer them.
"It is not an offence not to answer questions," he said.
He said Masetlha was charged with withholding information and not with refusing to allow the inspector-general access to the intelligence information.
The constitution provided that the inspector-general should have access to the information.
Tuchten further argued that the rights to privacy of citizens is enshrined in the constitution.
In 2005 Macozoma found out that he was under surveillance and reported the matter to Intelligence Minister Ronnie Kasrils.
Masetlha was fired from his job by President Thabo Mbeki after the alleged hoax e-mail saga implicating members of the ANC in a plan to oust Mbeki. - Sapa