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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
24 April 2002
INTERCEPTION AND MONITORING BILL: DELIBERATIONS
Chairperson: Adv De Lange
Documents Handed Out:
Interception and Monitoring Bill: Working Draft 3
Report of the Portfolio Committee on Justice and Constitutional Development on the Suspension and Removal from Office of Mr R M Nongena, Additional Magistrate, Humansdorp
Extracts from Magistrate's Act 1993 Regulations No R 361, 11 March 1994
The Committee had to focus solely on the Interception and Monitoring Bill as the other presentations were not ready. The Committee went through Parts 1 and 2 of the Bill.
The Committee considered the application by the Magistrate's Committee and the Minister of Justice and Constitutional Development that Additional Magistrate Nongena of Humansdorp be removed from office.
Adv de Lange opened the meeting by stating that, due to either the person designated to give the presentation, or the paperwork referred to in the presentation, not being available, the Committee were forced to postpone the following discussions:
Suspension and removal from office of a magistrate;
Sexual abuse of children;
Presentation by the Department of Local Government on the 'crossing the floor' legislation; and
The Directives on Plea Bargaining.
Interception and Monitoring Bill
Adv De Lange noted that the comments received from the Prosecuting Authority, in addition to informal representations from the service providers and other interested parties, had been incorporated into the current working draft.
Adv De Lange decided not to begin with the Definitions Clause, rather to refer back to it during the deliberations as matters arose. Therefore, discussion began with Chapter 2, Clause 2.
Mr Labuschagne said the service providers had asked that all references to 'call-related' be altered to read 'communication-related' as the former could be mistakenly taken to mean only those attempted communications which had been successfully received. This new terminology would more clearly encompass attempted, but failed, communications. Also the reference to 'an employee' of the service provider was asked to be omitted, as the service provider did not want their employees involved. The service provider should be approached officially and directly.
Adv De Lange asked whether sub-clause (3)(b) was necessary. Sub-clause (1) was a clear prohibition, (3)(a) again seemed a clear prohibition. Therefore, (3)(b) was excessive. Or, otherwise, why did a similar clause not arise in (2)? Mr Labuschagne asked if the Committee wanted the exception to appear in sub (2) also. Adv De Lange said the alternative was that the exception was moved. Mr Labuschagne agreed to consider this and to report back. Adv De Lange said he wanted the exception to be 'clean'.
Part 2 Exceptions to Prohibitions
Mr Labuschagne said he had thought about previous comments from the Committee on the issuance of an order by a judge. He said that it seemed the rule was 'you may not intercept.' Therefore, the exceptions had to relate to the rule, not to the procedures one must go through in order to attempt to gain judicial approval to intercept. Until an interception occurred, the rule had not been breached.
Adv De Lange said Mr Labuschagne's comments made sense, but the exceptions may need to be split up and categorised.
Mr Labuschagne said the reference to 'including a law enforcement officer' had been removed because he felt they could safely be included under the reference to 'any person.' Sub-clause (2) had been included to provide for law enforcement officers to intercept a communication without a court order if it appears a serious offence was being, or was about to be committed and there is no time to apply for an order. But the Bill proposes that, even in these cases, the officer is later forced to apply for a court order to retroactively approve of the interception.
Adv De Lange asked if sub-clause 2(a) was actually needed. A law enforcement officer's ability to intercept a communication they were a party to had already been granted in sub-clause (1) above.
Mr Labuschagne said there was a difference because you could be party to a communication without being addressed by any of the parties. These cases should be regulated.
Adv De Lange asked if the test in sub-clause (c) should be that of 'urgency'? Should the test not be more closely linked to 'criminality'? Also, sub-clauses (3), (4) and (5) seemed extremely bureaucratic. Adv De Lange said he would look at this section again to see exactly where the problem lay.
Mr Labuschagne said that these provisions were based on the Canadian legislation which was very strict in this area.
Ms Camerer (NNP) said that sub-clause (4) seemed to say that a law enforcement officer need not always have their actions formally documented. This was not welcome.
Adv De Lange said that there was a chance that the entire clause from 2(c) would either be deleted or substantially changed. Therefore this section should be put in square brackets with the insertion of the word 'and' placed at the end of 2(a).
Ms Camerer said this would obviously address her concerns.
'authorised person' - deemed acceptable.
'business' - this was a wide definition including government departments and agencies.
'communication' Mr Labuschagne said many found the terms 'direct' and 'indirect' communication confusing. Direct communication was when one person heard another person without any electronic or other machinery. 'Indirect' communication was communication via, for example, the telephone where the communication was only effected with the help of other devices. Therefore, one could be eaves-dropping, yet still be classified as having heard 'direct' communication.
This clause regulated the ability of a party to a communication being able to consent to an interception.
Mr Labuschagne said that again sub-clause 2(c) should be put in brackets as its relevance should be checked up just as in Clause 5.
Adv De Lange asked why sub-clause 2(b) was included. If a party to a communication gave consent, they gave consent. He was also concerned over the structure of sub-clause (2)(b), suggesting that it be re-drafted with the text coming after the semi-colon at the end of sub-clause (ii) being converted into paragraph (c).
Mr Labuschagne said the Bill sought to ensure that one was unable to give consent for another to intercept a communication in order that they can commit a crime. The Committee discussed several examples of these situations and agreed that such a position was necessary.
Adv De Lange said that he understood Mr Labuschagne had adopted the strict Canadian approach in this area. However, he felt it should be noted that Canada had the benefit of a very low crime rate whereas South Africa had an extremely high one and a relatively poor rate of detection.
Clauses 7 and 8
The text of this clause should be read in conjunction with Chapter 8. Additional clauses had to be written into the Bill to allow for emergency interception to prevent loss of life or serious bodily harm.
There were two examples mooted by the Committee. Firstly, in the case of kidnapping if the kidnapper had a cell-phone, the route of the car could be traced by sending an SMS to the phone as the location of the nearest transmitter to it would be recorded. Secondly, there was an occasion when the NSRI had been refused any information from a service provider as to the location of a cell phone even though a call had just been made from it to say the ship the caller was aboard was in trouble.
Again, Adv De Lange said the relevance of the reference in sub-clause (c) to 'urgency' would need to be looked at.
Any records relating to the interception should be destroyed. He suggested that a possible clause should ensure the law enforcement officer involved had to make an affidavit to say that the records presented to the court were all the records taken, enclose the records, and that they be destroyed in the presence of the judge.
The references to the protection of 'property' also rested uneasily with the Committee as it simply did not seem to be as strong a reason as 'serious bodily harm' or loss of life. They decided to leave the decision as to whether to remove it to a later date.
Ms Camerer (NNP) said she found the paragraphs in Clause 7 to be clumsily linked but Adv De Lange said they appeared workable.
Mr Labuschagne asked the Committee to note that the heading to this section was incorrect.
Adv De Lange said the provisions of this section concerned him. If the customer was empowered to ask a service provider whether their communications were being intercepted, then a 'gangster' could simply ask the service provider if there was a 'tap' on the line and the service provider would be obliged to answer. This could thwart the investigation of the crime the interception order had been provided to assist.
Mr Labuschagne said this eventuality appeared to be covered by Clause 33, however, it did create a potentially conflicting position so it should be addressed. Adv De Lange said they must consider how the clause would work in practise in order to amend it. It was certainly the case that unlawful interceptions could be reported to the customer, and that sometimes it would be necessary to obtain information from the service provider to ensure the Act was being complied with. However, criminals and even crooked law enforcement officers must not be entitled to obtain information on lawful interceptions as this would impede the investigative process.
The Committee felt they must think about whether or not to simply scrap Clause 9.
There was a grammatical error in sub-clause 10(c) where 'that duties' should read 'those duties.'
Mr Labuschagne said this was a very difficult clause.
Adv De Lange asked whether sub-clauses (2)(a)(i)(dd) and (2)(a)(ii)(aa) were not simply the same. Mr Labuschagne said they appeared to be so he would delete one of them.
Mr Labuschagne said that sub-clause (ii)(bb) had been copied from the UK legislation and it related to counselling organisations such as Childline and the Samaritans. As South Africa had no comparable organisations, perhaps the clause should be deleted. Adv De Lange said it was fine to leave it in provided it did no harm.
Mr Labuschagne said that he had deleted 2(e) as it had been copied from the UK legislation but it seemed to provide for 'warrantless' interceptions which he did not think the Committee would approve of. Adv De Lange confirmed that he was correct to delete it.
Space had been made for the insertion of a clause on the interception of prison communication.
Mr Labuschagne outlined the current USA position; when a prisoner was received in the prison he or she was given a handbook which said their communications may be intercepted. Thereafter, the prisoner would be required to sign a 'consent' form agreeing that the authorities had the power to intercept his or her communications. At the public telephones, a sign would be displayed warning that the call may be intercepted and before the call was placed a message would be played warning that interception could take place. After that, if the prisoner continued with the call, they would be deemed to have consented. The Committee was not impressed with this form of forced 'consent' but did recognise that the issue should be regulated.
The Committee was concerned that awaiting trial prisoners, who were held with the general prison population, would lose their rights. They also did not want the provisions extended to youth holding centres, mental health hospitals and the like, even if those held there had been convicted of a crime.
Mr Labuschagne said that the Bill could simply empower Correctional Services to make Regulations covering the interception of communication. The Committee said he should draft a suitable proposal, including a sub-clause to say that the Regulations must be submitted to Parliament.
Removal of Mr Nongena, Additional Magistrate
Mr Allers, representing the Department of Justice, began to outline the events leading up to and including the decision by the Magistrate's Committee and the Minister to remove Mr Nongena from office.
After a discussion the Committee were in complete agreement that they could not clearly see what charges the recommendation to remove Mr Nongena from office were based on. They asked for much more concise information relating to the decision of the Magistrate's Committee and the Minister and they would withhold any decision until such information was forthcoming.
Adv De Lange said he would like an explanation as to why the matter had taken so long to come from the Minister to the Portfolio Committee; there was a gap of over one year.
He stressed that in matters relating to the independence of the judiciary, procedure was of paramount importance.
Mr Allers asked if the Committee would rather the Magistrate's Committee came before the Portfolio Committee to report on these matters. Adv De Lange said he was happy for them to attend if they were needed.
Interception and Monitoring Bill
Applications for and issuing of directions
The first four sections of the clause had incorporated all the changes the Committee required and they were quite happy so far with it.
In sub-clause 5, the Committee decided to use the word 'probably' rather than 'possibly' as this created a stricter test. They also decided to use the 'adequately,' rather than 'effectively.'
Mr Labuschagne asked if deliberation of sub-clause (5)(iv) could be held over until he had spoken to Ms Chohan-Kota (ANC) as she was worried about the international dimension. The Committee also had difficulty finding their way around the document as there had been so many changes effected, so Mr Labuschagne asked if he could delete all the parts the Committee had agreed to. This was approved.
Sub-clause (5)(c) was necessary to ensure that the law enforcement officers had to prove that they had tried other means to obtain the information and that the interception of communications was the last effort.
However, Adv De Lange was concerned that there was too much duplication with the references in some of the sub-clauses to 'and cannot adequately be investigated in another appropriate manner.' The Committee, therefore, decided to alter sub-clause (5) by removing the statement 'and cannot adequately be investigated in another appropriate manner' from sub-clauses (a)(i), (iii), (iv)(bb) and (v) and rewording (c) to state:
'In respect of paragraphs (a)(i), (iii), (iv)(bb) and (v), other investigative procedures have been applied and have failed to produce the required evidence or reasonably appear to be unlikely to succeed if applied or are likely to be too dangerous to apply in order to obtain the required evidence and that the offence therefore cannot adequately be investigated, or the information therefore cannot adequately be obtained in another appropriate manner.'
Adv De Lange was also concerned with the syntax in sub-clause (iv) as he felt the words 'the gathering of information' were in the wrong place. He asked Mr Labuschagne to consider altering the structure of the sentence.
The Committee considered the definition of 'serious offence' and the provisions of Schedule 1.
The definition of 'organised crime' had come from the Organised Crime Act. The schedule refers to all crimes where the sentence is seven years or more. Adv De Lange said he thought ten years may be a better figure so he asked that both be included.
Mr Labuschagne said that he had not shown a copy of the draft Bill to the Police Department but that he was certain they would be of the position that the definition of 'serious offence' was not wide enough. However, Mr Labuschagne was firmly of the opinion that many of the offences were termed 'serious' by other legislation which should definitely not be included in Schedule 1.
Mr Labuschagne went back briefly to sub-clause 13(3)(c) and he queried the provisions that the service provider should be informed as to why the interception order had been granted. He said that this was none of their concern, so he believed the section should be reworded. Adv De Lange told him to redraft the sub-clause.
The meeting was adjourned.