Interception & Monitoring Bill: deliberations

Meeting report

JUSTICE AND DEVELOPMENT PORTFOLIO COMMITTEE
26 February 2002
INTERCEPTION AND MONITORING BILL: DELIBERATIONS

Chairperson: Adv. J H De Lange (ANC)

Documents handed out:
Reinstatement of Legal Professionals Bill
Interception and Monitoring Bill - Draft 2
Interception and Monitoring Bill - Amalgamation of Chapter 3 and 4
Committee Programme
Interception and Monitoring Bill - original tabled version [B50-2001]

SUMMARY
Morning session
The Committee completed deliberations on the amalgamated Chapters 3 and 4.
Afternoon session
Clauses 1 and Chapters 6 and 7 of the Interception and Monitoring Bill were discussed by the committee. The following are the most pertinent issues arising from this discussion:
- the definition of "serious offence" in clause 1 of the Bill;
- the definition of "identity document" in clause 36;
- inclusion of the phrase "any other person" in clause 37;
- the inclusion of "a reasonable time" in clause 38; and
- various unresolved definitions in clause 1 of the Bill.

MINUTES
Announcements
● The Chair noted that the Committee was supposed to be briefed about the investigation into the arms deal, but a postponement had been requested as there is nothing further to report. Adv de Lange suggested that they agree to this, and that a report be given in early April
● As there are fewer plenary sessions next week, the Committee would be meeting more often.
● The Reinstatement of Legal Professionals Bill had arrived and public submissions would be requested. Other bills that they would concentrate on are the Judicial Officers Amendment Bill and then the International Criminal Court Bill - which bill he asked the department to check how far they are with its drafting. If the 'Crossing the Floor' Bill comes along then that would take priority.
● During 2-5 March the Committee would be visiting Chapter 9 institutions (Johannesburg). The next trip (15-19 April) would be visiting the four provinces: North West, Free State, Mpumalanga and Northern Cape, possibly including NCOP representatives. He suggested that they do one day's volunteer work in the provinces.

Interception and Monitoring Bill
The Committee worked through the document in which the drafter had amalgamated Chapters 3 and 4:

Clause 16 Oral application for, and issuing of, oral interception direction
The Chair said that this section is about urgent orders when you do not have time to put matters on paper. He asked why there is the option of {24/48} hours for the submission of a written application after the issuing of the oral interception direction.

Mr Labuschagne replied that Judge Gordon, the judge responsible for issuing directions currently, had requested that this be 48 hours for practical purposes.

Adv de Lange said that he wanted to ensure that only a judge could give an oral direction and he did not have a problem with an oral direction per se. [The direction should be conveyed to the service provider by the judge or someone authorised in his office and not the police].

Mr Labuschagne suggested that he look at 16 (6). Adv de Lange said that this provides for a written direction later. What he is emphasising is that it should be the judge that gives the written direction.

Mr Labuschagne said that this was his intention all along, as the judge had said that he does not usually issue the direction, it is rather one of his clerks.

Adv de Lange suggested that in 16 (3) you issue an oral or written interception direction, and then you describe the process for each of these two circumstances. This was confirmed as a change.

Mr Mzisi (IFP) asked when did an application become urgent?

Adv de Lange replied that they had left it for the judge to decide this. A cop would be able to go to a service provider and say that the judge had said that this is an oral order.

Clause 17 Application for, and issuing of, decryption direction
The Chair asked why there must be an interception direction issued.

Mr Labuschagne said that he cannot see in practice how this would work otherwise. He suggested that they rather add this to the previous section which the Committee accepted.

Clause 18 Application for, and issuing of, an entry warrant
Mr Labuschagne said that this is the first time a judge authorises this.

Adv de Lange asked why they are allowing police access again? Mr Labuschagne replied that the police are allowed in some cases to install monitoring devices and hence require an entry warrant. With direct communications, it is not always the service provider who does this.

Adv de Lange pointed out that 18 (4) states the circumstance in which this can be done and this covers his concerns.

Mr Labuschagne agreed and referred to Draft 2 of the Bill and the definition of 'entry warrant' saying that this should make it clear. Adv de Lange agreed with this.

Mr Mzisi (IFP) asked what would happen if the apparatus belonged to a person who was not the one who was being monitored. Would it not interfere with their privacy?

Adv de Lange replied that this did not matter, as you are merely issuing a warrant for the premises. As long as the four criteria that have been set down for interception are met, there should not be a concern.

Dr Delport (DP) said that you have to accept that this is an invasion of privacy but it is overridden by the need to combat crime.

Adv de Lange said that they are putting in all the checks and balances.

Mr Labuschagne referred to 18 (5) and asked whether it should expire after three months.

Adv de Lange said that as long as 'executed' means both installing and removing, then this is correct.

Clause 19 Reports to judge on progress
The Chair noted that his was a very important clause as it allowed the judge to asked for progress reports, and would hence curb the police agencies in some way.

Clause 20 Cancellation of direction or oral interception direction
Adv de Lange suggested that there might be another reason for which they need the order if the original reason had fallen away, and asked if this should be allowed.

Mr Labuschagne said that they should have to apply for a new order.

Adv de Lange agreed to this saying that the rule of law should prevail. He asked whether or not they should be informed of the cancellation in writing.

Mr Labuschagne agreed that this should be the case, as it also prevented the order from continuing unnecessarily.

Adv de Lange said that they should look at 20(4) with reference to Section 35(5) in the Constitution which deals with evidence.

Mr Labuschagne said that he did not feel strongly about the issue, but had been persuaded by a member of the Directorate of Public Prosecutions.

Adv de Lange suggested that they add at the end of the sentence, a phrase which says 'if this renders the trial unfair', and this would leave it to the court's discretion.

Mr Masutha (ANC) agreed and added that he thought they had been too prescriptive with the word 'must' in 20(2).

Adv de Lange explained that this is necessary because if there is a subsequent written application which is not true, then the judge must cancel.

Mr Masutha said he was not sure about this as the judge is not necessarily in a position to assess this.

Adv de Lange said that the judge has to comply with the two tests in (a) and (b) and this should provide a safeguard.

Mr Masutha accepted the Chair's point.

Chapter 5 Executions and Directions and Entry Warrants
Clause 29 Execution of direction
Adv de Lange asked whether the person executing the direction should be the applicant or someone who is duly authorised by the applicant.

Mr Labuschagne answered that the police have said that it is imperative that 'any other person' be included as they need the assistance of people who for instance run a building. He pointed out that it was unlikely that they would use any other person on the street.

The Chair stated that it should not apply to actually executing the operation, but rather merely with assisting the operation. They should look at the definitions and examine what an interception direction means.

Mr Labuschagne said that they should rather look at the definition of 'intercept' to show that it covers all the situations that the Chair was concerned about.

Mr Masutha asked if the person who is authorised can delegate to another person.

The Chair replied that the applicant can authorise another law enforcement officer to execute the action.

Mr Masutha referred to the common law principle which states that an Act should not allow for delegation to another person without express reference to this, and asked if they could check up on this.

Adv De Lange suggested that they move 29 (4) to subsection 1.

Clause 30 Execution of Entry Warrant
Adv De Lange suggested that the drafter follow the previous format which includes the definition and then another ground.

Mr Labuschagne replied that the other ground is not relevant in this instance.

The Chair said that what he is talking about is 'reasonable grounds'. He suggested that (a)-(c) be left out and the requirement of reasonable grounds rather be used. In this way, the purpose of the warrant is in the warrant rather than the purpose of the Act which had already been considered when the warrant was issued.

The Chair asked why the deleted 30 (3) had been removed.

Mr Labuschagne explained that it was pointless as it would require a person to identify himself which defeated the point of the Act.

The Chair said that there should never be circumstances in which a person can enter premises without a warrant. Hence the new 30 (3) should indicate this.

Dr Delport referred to the protection of a person's right to "his or her privacy" in 30 (2)(c) saying that this did not seem possible. The Chair replied that this was merely a guideline as once you had transgressed the privacy boundary, you should not go beyond what it authorised.

The Chair said that 30 (4) is not possible. He asked the drafter to rethink this section as it looked as if it had been used in other statutes.

Mr Labuschagne said that Telkom thought that this whole section should be deleted as it makes their employees liable.

The Chair replied that this was completely irrelevant as a judge would have authorised this.

Clause 31 Assistance by postal service and telecommunication service provider
The Chair questioned whether you need 'as soon as possible' in (1).

Mr Labuschagne thought the phrase was relevant as the service providers must make interception facilities available as soon as possible.

The Chair asked if the 'or' in (2) means 'and' as well in case it is in both written and electronic form.

Clause 32 Assistance by decryption key holder
The Chair asked where this clause comes from.

Mr Labuschagne replied that it was partly from English law and partly his own initiative.

The Committee then examined the definitions of all the decryption-related concepts, and were satisfied with them - although they did not know what they meant!

The Chair asked why the drafter said {as soon as practicably possible / within 36 hours…}. He suggested that it rather state that they must do as stated in the judge's court order in 32 (1) rather than using 36 hours. The Committee agreed to this amendment.

The Chair asked if there is a contempt of court offence in 32 (3). He said that they should create an offence there.

Regarding 32(4), the Chair said that it looked as if you take away the duty from the "decryption people". Mr Labuschagne replied that he had submitted this to the internet stakeholders because it affects them, but they have not responded. The police and intelligence had approved this, but without the guidance of the internet stakeholders, he did not know what course to take.

The Chair said that he would leave everyone to read through this part as it was very technical. He asked the drafter to ensure that this Act not allow changing the code at the last minute in order to avoid being the person with the decryption code - in other words, there must be no mala fides.

After Mr Masutha pointed out that there was a contradiction between 32 (5) and (6)(b), the Chair asked the drafter to examine this apparent contradiction. Mr Masutha said that thought should be given to separating the concept of acting in a delegated capacity, and the concept of assisting someone else.

The Chair said that the Bill now says you have an applicant as well as a person who can be authorised, and there are no further powers to delegate further.

Mr Masuthu replied that you still need to examine the common law principles of delegation of power.

The Chair referred him back to Clause 29(1) and (4), where it makes it quite clear that there is one type of person who is authorised. He added that there is nothing that stops them from changing the common law.

Chapter 6 Interception Capability , Interception Centres and Costs
Clause 33 Interception capability of telecommunication centres
Regarding 33(1), the Chair asked whether this should rather be split up with separate rules for encryption. He suggested that they should split interception and encryption, as you can intercept something and not be able to read it without an encryption device.

The Chair said that they needed to create a time limit for the service providers to provide interception facilities. If you leave it open ended there is no control over the process and no guarantee that the service providers would make this Act possible. He asked about the process of passing the Act.

Mr Labuschagne replied that 33 (7) dealt with this. He noted that Vodacom had indicated that 33 (7) should provide for a period within which there should be compliance.

The Chair suggested that it should be 'not more than twelve months'. Mr Labuschagne agreed with twelve months as these devices had to be imported from overseas.

The Chair did not understand why both the directive and the licence were not issued at the time of issuing the licence to new service providers. He continued that the established service providers did not need all the time that subclause (7) allowed, and that the changes should be made accordingly. He suggested that (7) should become subclause (3) so that you read the two after each other. He added that the Ministers must do it in consultation so the wording should be changed accordingly. He noted that the drafter would need to change (3)(g) accordingly.

In explaining the difference between (4) and (5), Mr Labuschagne said that one is original costs and the other is further costs. The Chair noted that this was not completely clear.

Regarding (7), the drafter explained that this is a once-off provision and fitted in better there. He continued that the SAPS has indicated that some of the service providers are in the process of obtaining these facilities, and they wished for the Minister of Communications to approve this. However, the Chair said that this was unnecessary as once a directive is issued they had to get the right equipment. They should not buy equipment before the Act is passed.

Mr Masutha said that the Minister of Communication should be separated from the other ministers in a less convoluted way.

The Chair believed that both the Minister of Justice and the Scorpions should be included here. The Committee grappled with some linguistic issues, in order to figure out the clearest manner to refer to the ministers. They decided that 'the Minister' means the Minister of Justice, and the 'relevant Ministers' means other relevant ministers, and this should be clearly stated.

The Chair noted that they should go through the relevant definitions before starting each new section. They have not dealt with 'cellular phone', 'contents', 'ID document', 'interception centre', 'listed equipment', 'postal article', 'postal service', 'national intelligence', 'serious offence', 'SIM card' and 'trade partner'.

[Afternoon session]
Clause 34
The Chair called for the word "authorised" to be removed from the proposed clause 34(1)(a). The drafter was asked to explain whether "may" or "must" would be used in clause 34(2).

Mr Labuschagne replied that the National Intelligence Agency expressed a string preference for the inclusion of "may", and reasoned that it would be the most accommodating in the situation where more than one centre designation would be relevant. He informed the Committee that his preference lies with "must".

The Chair requested Mr Labuschagne to explain the need for subclause 1.

Mr Labuschagne answered that subclause 1 provides that once the interception order has been issued, the service provider then has to be told to which interception centre the interception has to be sent.

The Chair instructed Mr Labuschagne to retain the word "must" in subclause 2. In answer to a query, Mr Labuschagne confirmed that the revised subclause 3 had been moved (as established in a previous meeting).

The Chair referred to the question raised during the public hearings on costs of establishing the link between their machine and the interception centre of the service provider. The drafter was requested to explain which party is responsible for covering these costs.

Mr Labuschagne replied that the Intelligence Agency had indicated in its most recent briefing that it would cover these costs.

The Chair suggested that "this only seemed right", as it seemed unfair to expect the service provider to cover such costs. The job of the service provider is to ensure that their machinery is compatible, but actually getting the equipment to them is the responsibility of the law enforcement agencies. The service provider cannot thus be expected to pay these costs.

There still seemed to be a dispute regarding the party responsible for the payment for the link between the service provider and the monitoring centre, and this has to be resolved as soon as possible. A provision could be included in the Bill that spells out the party responsible, but this depends on the directives to be issued by the Minister of Justice and Constitutional Development (the Minister) in this regard. Should this matter not, however, be resolved in the directives, then it can be inferred that the state has to cover this cost.

Mr Labuschagne informed the Chair that clause 33(4) specifically provides that this cost cannot be borne by the service provider.

The Chair noted this point, and suggested that further discussion on this matter be postponed till after the directives of the Minister have been published.

Clause 35
The Chair stated that the inclusion of subclause 1(a) was welcomed, as it at least fixes a time frame. Subclause 3 seemed like "overkill", as the proposed clause 33(2)(a) already deals with such payment, and subclause 3 merely seemed to provide that a notice has to be issued detailing the tariff charged for the assistance. It was thus recommended that the entire subclause be put in brackets, and a note be attached asking "is this really necessary". The Chair stated that he was not opposed to subclause 3, it just needs to be evaluated further.

The Chair redirected the attention of the committee to the definition section of the Bill.

Clause 1(1)
"Information centre"
He informed members that the definition of "interception centre" has now been resolved in the deliberations on the proposed clause 34, to which this definition refers.

"postal article"
The Chair asked the drafter if the definition of "article" should be included in this definition in the proposed formulation.

Mr Labuschagne answered that it should be included in the manner proposed.

The Chair accepted the proposed formulation of the definition, and turned the focus to the crucial definition of "serious offence".

"serious offence"
The Chair requested the drafter to explain the role of Schedule 1 in this definition.

Mr Labuschagne directed the members to Schedule 1 of the Bill.

The Chair stated that Schedule 1 "is far too long", and proposed the following changes:
- number 5 should include culpable homicide as well;
- number 9 should be removed.

The Chair informed Mr Labuschagne that perhaps more guidance should have been given to the drafter in this regard. Subclause (b) of the proposed definition of "serious offences" refers to organised crime, and it therefore cannot be included in Schedule 1 as a crime committed by a single perpetrator. There is thus no need to painstakingly list every crime committed by a single perpetrator in Schedule 1, only some could be included. In this regard, subsection (e) of the definition of "serious offences" should be placed in the schedule.

The Chair agreed to Mr Labuschagne's suggestion that subclause (d) of the "serious offences" definition should also be moved to Schedule 1.

It was decided that subclause (c) has to be reconsidered because its ambit is rather wide, and the proposed subclause (b) is the type of provision aimed for.

The Chair returned to Schedule 1 and suggested the following amendments:
- numbers 1-4 have to be retained;
- number 5 status is "a yes and no", and will have to be reconsidered.

Mr Labuschagne contended that number 5 would have to be included if that offence were committed by a syndicate in an organised manner, as he could not envisage any situation in which that offence could be committed by a single perpetrator in that context.

The Chair agreed, and called for numbers 6-13 to be removed. The drafter was requested to explain the relevance of clause 20(1) in this regard.

Mr Labuschagne informed the Chair that he would "have to get back to [the Chair] on that one".

The Chair returned to the schedule and made the following amendments:
- numbers 14-15 must be retained;
- numbers 16-19 must be removed;
- numbers 20-23 must be retained;
- number 24 must be removed;
- numbers 25-27 have to be reconsidered as their status is uncertain;
- number 28 status is also uncertain. Mr Labuschagne was asked to explain why only Chapter 3 of the Prevention of Organised Crime Act is referred to here.

Mr Labuschagne replied that this was the view of the National Director of Public Prosecutions (NDPP), and Mr Ngcuka was of the opinion that those offences should be included in Schedule 1 if they are in fact committed by a group or syndicate in an organised manner.

The Chair contended that number 28 cannot simply provide "any offence". Furthermore:
- number 29 status is uncertain.

It is suggested that the current formulation of number 5 be retained, but only in terms of "death", and the phrase "or infliction of bodily harm" should be deleted. If however, this crime is committed by a group, a reference to it should be included in number 5 of the schedule.

As far as the proposed definition of "serious offence" is concerned part (b) essentially provides the judicial officer with discretion to decide to use this clause to intercept and monitor the activity, if the perpetrators are acting with a common purpose.

Mr M Mzizi (IFP) inquired whether such interception and monitoring of telephone calls was used by the law enforcement authorities to capture Mrs De Klerk's murderer.

The Chair pointed out that, in that case, the telephone of the accused was not "tapped" or monitored, but rather the law enforcement agencies scrutinised the telephone records of calls made to and from Mrs De Klerk's home. By studying these records they were able to trace the accused. Under this Bill, such tracing would fall under the "real-time call-related information" definition.

Mr Mzizi thanked the Chair for the clarification.

Dr J Delport (DP) contended that if this is the approach to be adopted by this committee to the definition of "serious offence", parts (a) and (b) of that definition have to be analysed more closely.

The Chair instructed Mr Labuschagne to place those items which the Chair earlier requested to be deleted from Schedule 1, and to place them in the proposed definition of "serious offence". This would effectively mean that when those acts are committed by a group of persons, that clause would expressly cover their consequent liability. It would be impossible to perfect that clause, because there will be overlaps with the schedule.

The Chair requested Mr Labuschagne to explain the absence of "attempt" liability after the proposed part (g) of the "serious offence" definition.

Mr Labuschagne informed the Chair that he, together with Mr De Lange (a second drafter from the Department), are of the opinion that attempt liability in terms of interception and monitoring could not be possible, and should therefore excluded from this Bill.

The Chair responded that if the suggested deletions from the schedule are effected, then attempt liability here would be very important, and should therefore be included.

Mr Labuschagne informed the Chair that "attempt" was specifically excluded when part (a) of the "serious offence" definition was still in place, as attempt liability would not fit in there. Yet that portion has since been removed, and there can therefore be no objections to reinserting the notion of "attempt" liability in the definition.

The Chair agreed, and requested Mr Labuschagne to check the definition of "drugs" under number 20 in Schedule 1. This only refers to section 14(f) of the Drugs and Drug Trafficking Act 140 of 1992, and section 14(e) of that Act is not mentioned.

Mr Labuschagne informed the Chair that section 14(e) of that Act has since been repealed by the bail law amendments.

The Chair stated that part (c)(iii) of the "serious offence" definition has to be renamed part (b)(iv) of the same definition, and the word "irreparable" in brackets in part (c)(iii) has to be included. Then part (c)(i) must be renamed as part (b)(v), and should now read "which may cause substantial {and irreparable] harm to the international relations or economy of the Republic". The word "irreparable" has to be placed in brackets because "substantial" is already a high standard.

Furthermore, the inclusion of the word "premeditated" under part (b)(ii) of the definition is not desirable, as the range of the provision would be too wide.

Mr Labuschagne stated that the wording of this provision mimics the bail and minimum sentencing provisions.

The Chair contended that this seemed repetitive, because there did not seem to be anything under "organised, planned and premeditated" under part (b)(ii) and "on a regular basis" in part (b)(iii) that is not already sufficiently covered under part (a)(i). These provision should rather read as follows:
(b) any offence that is allegedly being or has allegedly been or will probably be committed by a person, group of persons or syndicate acting in-
(i) the execution or furtherance of a common purpose or conspiracy;
(ii) in an organised, planned or regular basis; and

Mr Labuschagne inquired whether there is in fact a difference between "premeditated" and "planned".

The Chair replied that the meanings are similar, because both imply that the perpetrator had given some thought to committing the crime. Yet "planning" seemed to include something else as well. It is suggested that "regular basis" in part (b)(ii) be replaced with "planned manner".

Mr Labuschagne referred to the proposed definition of "organised fashion" and recommended that this term be inserted in part (b)(ii) instead, as its definition is already included in clause 1 of the Bill.

The Chair agreed, but contended that it cannot be restricted to the contents of that definition.

Mr Mzizi sketched the following scenario: a man catches his wife "in the arms of another", turns around and fetches a knife from the kitchen. How would this scenario be incorporated under the definition of "premeditated" in this Bill?

The Chair replied that this is precisely what is being discussed at the moment, whether parts (b)(ii) and (iii) should be replaced in the manner proposed above. Part (b)(ii) now reads "acting in an organised fashion, and this leaves sufficient scope for judicial officers to interpret the provision. The word "includes" should be retained in the definition of "organised fashion", so that the definition may be broadened further. Thus the definition of "organised fashion" may be reinserted in the Bill. Part (c)(iii) would then become part (c)(ii), and part (c)(i) will be renamed part (c)(ii). Part (c)(ii) will then be scrapped.

The Chair requested Mr Labuschagne to further refine the proposed definition of "serious offence" both in the Schedule and the actual definition in Clause 1 of the Bill. The second part of the definition relates to the commission of the offence by a group or a syndicate, and here this Bill will create a general definition for the judicial officer "to work with", and the definition just proposed is preferred.

The Chair urged committee members to read the American and Australian definitions of "serious offence" which are very broad, with the American definition spanning all of 5-6 pages. The definition in the Bill does afford sufficient scope for certainty in terms of the Constitution, as well as the law enforcement agencies. Indeed, Judge Gordon would have sufficient leeway here. It must be remembered that this is only one of five ways in which an interception and monitoring order may be sought.

Chapter 7 Duties of Telecommunication Service Provider and Customer
Clause 36
The Chair suggested that the proposed definition of "customer" in clause 1 of the Bill creates a clear distinction between the very different concepts of "customer" and "service provider", the latter being responsible for actually providing the service in question.

Clause 1(1)
"identity document"
Mr Labuschagne was requested to provide clarity on the term "identity document" in
clause 36(1)(a)(i)(bb), and the reason for the two definitions of "passport".

Mr Labuschagne informed the Chair that the South African Passports and Travel Documents Act 4 of 1994 provides a different definition of "passport" than the Aliens Control Act 96 of 1991. The Committee would have to decide which definition should be included in the Bill.

The Chair suggested that the word "or" simply be inserted between the two provision to now read:
A [South Africa passport or travel document as defined in the South African Passports and Travel Document Act, 1994 (Act No.4 of 1994) or passport as defined in the Aliens Control Act, 1991(Act No. 96 of 1991)}.

Furthermore, the phrase "South African" should be removed from the beginning of part (c) of the definition of "identity document".

Mr Labuschagne was requested to explain the reason for the exclusion of a mobile cellular telecommunication service (mobile telephone) from clause 36(1)(a).

Mr Labuschagne replied that this is dealt with by the Internet Service Provider (ISP).

The Chair instructed the drafter to formulate a better definition of "number" in clause 36(2)(b).

Mr Labuschagne responded that he would obtain further clarity here.

The Chair suggested that the wording of the provision be altered to state "a reference by which such customer is known by the service provider, including any numbers allocated". The drafter was requested to embody this sentiment into a workable and comprehensive provision.

Adv M Masutha (ANC) requested clarity on the definition of "identity number".

The Chair replied that the Bill did not contain this definition, but it did contain a definition of the term "identity document".

Advocate Masutha inquired whether the proposed definition of "identity document" sufficiently accommodates the concept of an "identity number".

The Chair replied that the Act which covers "identity numbers" did not cover "identity document", and provides that both the identity number and document have to be acquired.

Advocate Masutha thanked the Chair for the clarification.

The Chair requested Mr Labuschagne to explain clause 36(3). Is the type of information covered by this provision different from that relating to archived call-related information and real time call-related information? This provision must not be allowed to create a loophole that would enable the law enforcement agency to immediately get hold of the information that it would not usually be able to acquire from an order of court. The difference probably lies in the fact that this type of information relates to the time at which the contract with the service provider is concluded, whereas real time call-related information deals with information once this contract has been concluded and the perpetrator is using the telephone.

Mr Labuschagne replied that the reason for this subclause is the fact that the law enforcement agency cannot be allowed to request and ultimately obtain, from the appropriate service provider, the particulars of the perpetrator without the relevant directive being issued.

The Chair recommended that the phrase "to perform the functions and exercise the powers authorised by law" should be removed from the subclause. It should reflect that the provision only allows the law enforcement agency in question to attain the type of information referred to in subclause (1).

Mr Labuschagne contended that this type of information may in fact be needed to perform its powers and functions. He suggested that the provision stipulate that "the service provider may only provide such information once the directive is issued".

The Chair acknowledged that the problem here is that the law enforcement agency might indeed need such information in order to be issued a direction. The central question is whether the perpetrator has any right(s) that would prohibit the law enforcement agency from requesting and ultimately acquiring the telephone information from the service provider.

The Chair discovered that the subclause did indeed make the acquisition of such information subject to the issuing of a directive, as it provides "who executes a direction or assists with the execution thereof". This provision did not seem logical, as there no longer seemed to be any need for subclause (3). Also, what type of information specifically is being referred to here, because the provision did not even mention this factor. Furthermore, if the direction has already been issued to law enforcement agency, why is such information required? Finally, how is this information to be distinguished from call-related information?

Advocate Masutha suggested that subclause (3) looks very much like a "sneak-in" by the law enforcement agencies.

The Chair agreed, and questioned the need for subclauses 3 and 4, because the latter stems from the former. Furthermore, the heading of clause 36 has to be altered because clause 37 deals specifically with mobile cellular telecommunications, and thus the ambit of clause 36 has to be restricted to "certain" telecommunication service providers.

Advocate Masutha recommended that "identity number" in subclause 1(a) be replaced by 'identity number referred to in (bb), so that a connection between the two may be established. A further reason for this is the fact that this Bill did not contain a definition of "identity number".

The Chair agreed with this proposal, and instructed Mr Labuschagne to effect the changes.

Clause 37
The Chair called for the comma after "manner" in clause 37(1) to be removed so that the provision may read better.

Mr Labuschagne contended that the phrase "any other person" in clause 37(1) should also be deleted, together with both commas in that provision.

The Chair agreed, and requested Mr Labuschagne to "fix it up a bit".

Mr Labuschagne stated that subclause 1covers the distribution channels of the service provider who did not sell the product directly to the end-user, but to the retailer who then makes the product available to the customer.

The Chair recognised this arrangement, but questioned whether the phrase "in respect of a telecommunication service provider referred to in subsection (1)" should be included in subclause (2) at all.

Mr Labuschagne replied that such deletion would effectively exclude the scenario in which the service provider sells the product via a retailer, as this is precisely the scenario referred to in subclause (1). The provision would read better once all the omissions had been deleted.

The Chair suggested that the word "sell" be inserted at the beginning of the provision, so that it may read easier with the phrase "necessary changes, with a cellular telephone or SIM-card sold or provided in any other manner to a trade partner... " subclause (2).

Mr Labuschagne referred the Chair to subclause (3). The Chair stated that the provision now makes it clear that when a service provider provides a service to the retailer, then the retailer itself must acquire all the relevant information on the end-user who buys the product. This duty therefore did not rest with the service provider itself and indeed, it would seem unfair to do so. Also, whoever sells the telephone further along the line, be it a trade partner, the service provider or any other person, the duty would then rest with this person to acquire this information and to make a record of it. The provision is very clear on this matter.

Mr Mzizi inquired whether a street vendor was included within the ambit of this provision.

The Chair answered that it did and he assured Mr Mzizi that the very purpose of this provision is to prevent the selling of such telephones to criminals.

Advocate Masutha inquired as to the manner in which the term "any person" is reconciled with the proposed definition of "trading partner", as the definition of the latter seemed to include the former. Therefore, there did not seem to be a need to include the wider "any person" and two separate definitions.

The Chair stated that this was a "valid point".

Mr Labuschagne replied that Advocate Masutha's proposal was the initial formulation of the provision, but it was requested that "any person" be included here as well. During consultation with Nokia itself, concerns were raised regarding the fact that "any person" could sell the product to the general public without actually being a trade partner of the service provider (Nokia), and without falling in the proposed definition of "trade partner".

The Chair understood the concern, but did not agree with it because, surely, if someone sells the SIM-cards, they have to have concluded some sort of contract with the service provider to be able to sell its product. It has, however, been made clear that this is not the case with the actual mobile telephones. Subclause (2) did seem to cover this scenario because it provides for "a trade partner and a person who sells, or in any manner provides, a cellular phone or SIM-card to any other person".

Mr Labuschagne informed the Chair that he would be meeting with both Nokia and MTN to clarify this issue.

The Chair stated that it is apparent that Nokia itself did not sell the SIM-cards only the cellular telephones, and the reverse applies to MTN, and the one has not concluded a contract with the other for the mutual sale of the other's product. It is thus clear that they cannot be held responsible here. Both the cellular telephone number and the SIM-card number are needed to trace the phone call. Therefore both these have to be included under subclause (2).

Adv Masutha questioned the point of having a cellular telephone as a communication device.

The Chair informed Adv Masutha that the SIM-card is needed to identify both the specific phone from which the telephone call was made, and also to identify the particular SIM-card, so that the authorities "can see where the SIM-card and the phone parted ways".

The Chair inquired whether subclause (3) was then identical to subclause (2).

Mr Labuschagne replied that this is not the case, but that it requires the relevant party to maintain a record of the information of the person to whom the service was provided, so that all the relevant information may then be made available to the law enforcement agencies. This matter is currently being checked.

Clause 38
The Chair stated that the time period in subclause (1) has to be "a reasonable time", and not the proposed "24 hours". This was deemed a "perfect" section, and all members seem satisfied.

Mr Mzizi requested a precise definition of the term "a reasonable time".

The Chair replied that this essentially entails an objective test. The problem with including "24 hours" is that it may be unduly restrictive, and for this reason "a reasonable time" is sufficient here.

Mr Mzizi requested that "24 hours" be included instead, so that the owner of the cellular telephone is required to report its theft immediately.

The Chair informed Mr Mzizi that the aim here is twofold: firstly, to create an offence and secondly, to create a "paper trail" for the law enforcement agency to work with. As far as the latter is concerned, this committee has to be careful not to place too heavy a burden on the law enforcement agency. It seemed that "24 hours" would indeed be too rigid, as the only reasonable time at which the owner could be able to report the theft could very well have been 24 hours and one minute after the commission of the crime. If "24 hours" were included in the provision, this owner would have no recourse under this Bill, and that seemed unjust. Indeed, it may even be that the reporting of the theft one month after the commission of the crime could, in the particular circumstances of the case, be regarded as completely reasonable. Thus a degree of flexibility was needed here, and this is achieved by granting the judicial officer a discretion to interpret the provision on a case-by-case basis.

Furthermore, the South African legal system does not place a duty on its citizens to report crimes, and thus this provision would effectively make it an offence to fail to report the theft of one's cellular telephone, in the context of the Bill.

Mr Mzizi insisted that "24 hours" be included in the provision, as "a reasonable time" allows the owner "too much leeway".

Advocate Masutha disagreed. Numerous cases had been documented in which the owner had not reported the theft within a 24 hour period, yet there were totally legitimate and justifiable reasons for not doing so. Thus the intention of the owner is vital here, and allowing "a reasonable time" allows the owner to explain his/her case to the judicial officer. Should the presiding judicial officer not be of the opinion that the theft was reported within "a reasonable time", the owner would be fully liable under this provision of the Bill.

The Chair instructed Mr Labuschagne to include "a reasonable time", and to place "24 hours" in parentheses for the time being.

Clause 39
The Chair contended, humourously, that this clause dealing with presumptions "could only have been written by the Police".

Mr Labuschagne informed the Chair that this clause corresponds directly to the Firearms Protection Act, instituted by the South African Police Services (SAPS).

The Chair said he expected so, and contended that the phrase "in the absence of evidence to the contrary which raises reasonable doubt" was specifically included as a response to a recent court decision. Mr Labuschagne agreed.

The Chair stated that the request in this clause has to be made in writing, so that proper procedure may be followed. These presumptions should properly be placed at the very end of the Bill, with the schedule of offences. The drafter was asked to explain precisely the type of "information" referred to in subclause (2).

Mr Labuschagne referred the Chair to clause 38(4) and stated that this provision stipulates that this type of information would be spelt out in the Minister's directives.

The Chair stated that the presumption in subclause (2) cannot be enacted, only subclause (1) is permissible.

The Chair considered whether there were any definitions outstanding:

Clause 1(1)
"cellular phone"
The Chair directed the members' attention to the proposed clauses 36 and 37. Should this clause not also contain a reference to "mobile cellular and communications service"?

Mr Labuschagne replied that the Telecommunications Act 103 of 1996 deals with this issue.

The Chair inquired whether the "mobile cellular and communications service" could not also be included in this Bill.

Mr Labuschagne replied that this is not the preferred option, because all the relevant services detailed in that Act would then also have to be included in this Bill.

The Chair recommended that it be included in this Bill via a cross-reference to that Act.

"contents"
The Chair was satisfied with the definition of this term.

"national security"
The Chair instructed the drafter to delete this definition.

"public health or safety"
The Chair instructed the drafter to delete this definition.

"SIM-card"
The Chair was satisfied with the definition of this term.

"listed equipment"
The Chair stated that this definition has to be revisited.

"telecommunication[s] system"
The Chair instructed the drafter to keep this definition in parenthesis, as it is not absolutely certain whether it is needed in this Bill.

Clause 1(3)
Mr Labuschagne explained that this provision deals with E-Mail, and provides that if the message is not opened and remains in the inbox, it is still (legally) regarded as being in the transmission process. The same principle applies to SMS messages.

The Chair inquired as to the effect of this provision on satellite communications.

Mr Labuschagne informed the Chair that Vodacom in fact asked this very question during the public hearings held by the Department of Communications, and that Department replied that the definition is broad enough to include satellite communications. This provision effectively states that South African law enforcement agencies cannot go to Zimbabwe, for example, and seek to intercept the communications of a South African citizen from that location. Such interception and monitoring has to be made from within the Republic.

The Chair agreed, and added that the phrase "effected by conduct" in subclause (3) implies that it has to be done within South Africa.

The Chair informed members that everything except the Preamble and Chapter 8 of Draft 2 of the Bill had been deliberated upon by this Committee. The meeting was adjourned.