Constitutional Amendment & Second Amendment Bills, 2002: briefing; Interception & Monitoring Bill: deliberations

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
25 April 2002
CONSTITUTION OF RSA AMENDMENT & SECOND AMENDMENT BILLS, 2002: BRIEFING; INTERCEPTION AND MONITORING BILL

Chairperson: Adv J H De Lange

Documents handed out:
Constitution of RSA Amendment & Second Amendment Bills, 2002
Proposed Amendments to Section 158A (6) (Appendix 2)
Interception and Monitoring Bill: Working Draft 3
National Director of Public Prosecutions: Comments on Interception & Monitoring Bill (Appendix 1)
Chapter 19-36 of the Criminal Procedure Act 51 of 1977

SUMMARY
Aspects of the crossing of the floor legislation which applied to the current structure of local government were highlighted. The present structure allows for councils to construct sub-councils and a potential problem of crossing of the floor was that, should crossing take place at either council or sub-council level, the other council would then not necessarily be proportionally representative. Hearings on this legislation will run from 13-17 May.

With the Interception and Monitoring Bill, the Committee considered the test to obtain a direction from a judge to gather archived information. The test was essentially one of necessity. A further provision of the Bill requires that should an officer request a direction, copy of the application should be placed on review for the record.

MINUTES
The Chair noted that there had been comments made in the press recently about members not attending meetings. That was true to a degree however most members had good reasons for not attending and had apologised. Concerning the crossing of the floor legislation, he had discussed it with three other chairs and they had agreed to begin holding public hearing from Monday 13 May, with hearings continuing throughout that week. It was hoped to have the Bills operative by the end of June.

Loss or Retention of Membership of the National and Provincial Legislatures Bill
Dr P Bouwer, Head: Legal Section, Department of provincial and local government, briefed the Committee on the Bill. He was accompanied by Mr Sledge Selesho (Chief Director: Institutional Capacity Building and Support) and Mr P W Heydenrych (Senior Planner in Mr Selesho's Chief Directorate).

Dr Bouwer sketched the electoral structure as it currently stands in terms of s 23(1) and 62 of the Municipal Structures Act and s 155(1) of the Constitution. The Constitution provides for three categories of municipalities. Category A municipalities consist of metropolitan councils, i.e. municipalities that can stand alone and do not share anything with other municipalities. Outside category A municipalities, all other municipalities are regarded as belonging to category C municipalities which include category B municipalities within their area.

The Constitution allows for various permutations for electoral systems and these were left for legislation to decide upon. The party system had been decided on. In practice, one first waited for the election results before adjusting the numbers of the seats so that it would be proportionally representative (PR). In terms of the ward side of the election, the candidate who received the largest number of votes would win the election. District councils were different because they did not have wards. Councillors were elected from the party lists. A distinction was made between the PR side and the ward councillor. An independent ward councillor may join a party or a ward councillor who had a "party ticket" may become an independent.

On the structures of the municipality, he said that it was the question of a Constitutional Amendment as it would have a slightly higher status than an ordinary Bill. No provision was made for rearranging the municipal structure but there was nothing to say that they could not be reconstructed. This had led to the addition of ss(d) to s(6) of the Proposed Amendment to section 158A, which states that "…all the structures of such a Municipal Council must be reconstituted in accordance with applicable law".

In metropolitan councils, the council may decide to form a sub-council and the councillors themselves would decide on how to construct the sub-council. The only requirement was that all the wards must be part of the sub-council. In his opinion, it would be inappropriate to make provision for the restructuring in the Structures Act and not the Constitution as it might be open to challenge if you did not put the requirement in the Constitution. He cautioned against being two technical with words such as "reappoint" so instead the words "anew/afresh" had been suggested in ss(e). Section (e) states that "if such a Municipal Council appoints members of another Municipal Council as provided for in section 157 (1)(b), members must be appointed anew/afresh in terms of national legislation to represent the appointing council."

Discussion
The Chair said that he could see the necessity of (e) but was unsure as to (d), which he felt was more of a political act. The issue centred on indirectly elected people. In practice, and NCOP member could not cross the floor, but if the numbers changed in the provinces it could mean, for example, that an ANC person would be withdrawn and an IFP person put in his place. A similar thing could happen at local government but he thought that it could happen automatically.

Dr Bouwer noted that one concern of his was Schedule 4 of the Structures Act, in terms of which a by-law may determine the number of councillors and how they were constituted. The metropolitan councils would determine the sub-council area and those members within the ward area of that sub-council would automatically become members of the sub-council and then the PR members would be appointed.

The Chair enquired if the independents only got onto the ward system and not the PR system.

Dr Bouwer replied that it did.

The Chair suggested the possibility of working out how many people live within an area and then working out the number of seats.

Dr Bouwer felt that this could not be done because the PR system would have to be used.

Mr Heydenrych was of the opinion that talking of votes becomes, in a sense, ludicrous and undemocratic because those votes represent the voters. He wondered if there was a need to go into great detail. He felt that it was possible to make the system simpler.

The Chair felt that it was for the legal advisors to sort out. He was just following what Dr Bouwer had said. He also believed that it would be quite simple because the issue revolved around seats and mathematically you would have to get a certain number of votes to get a seat. The easiest way of doing it would be to say that one loses a seat and another obtains it.

Mr Heydenrych felt that if the quotas of sub-council were to be changed it might affect the smaller parties who ran the risk of losing their seats.

The Chair remarked that that was how democracy worked and that it occurred all over the world. It was good that the problem had been raised and there were 14 days left in which to solve it.

Dr Bouwer remarked that if only the ward councillors were to change, the sub-council may then not necessarily reflect the PR of the Council. He had not thought it through but it was important to highlight the important issues.

The Chair commented that the Deputy President had stressed the urgency of passing the Bill. It was therefore necessary to pass them as soon as possible as a package and then take care of any urgent changes via the amendments. He requested that at least one person from Dr Bouwer's department be linked to the Committee and thanked them for a very useful preliminary discussion.

Interception and Monitoring Bill
Mr Labuschagne, the department's legal advisor, was present to answer questions on the Interception and Monitoring Bill (IMB).

The Chair noted that the Committee would be starting on Clause 14, which used to be s12. He noted that the brackets had been removed and enquired why a "judge" had been added to the provision.

Mr Labuschagne replied that if this was not so, the ordinary judge would not be able to be approached for a warrant.

The Chair did not feel it necessary to have the provision there and stated that it was part of a policy decision taken by the committee. He enquired as to Clause 21 of the Bill.

Mr Labuschagne replied that Clause 21 referred to an oral application.

The Chair asked if the previous provision had also been subject to Clause 21 and Mr Labuschagne replied that it had.

The Chair said that the word judge in ss(3) and (4) would have to be deleted.

Mr Labuschagne pointed out a footnote referring to a comment by the NDPP, who felt that the test was much higher than for an ordinary search warrant. He had made copies of provisions of the Criminal Procedure Act for the Committee to look through.

The Chair questioned why the provision had been equated with a search warrant.

Mr Labuschagne replied that when you entered a person's premises, it was also regarded as an invasion of privacy. The issue was discussed in the NDPP's comments of Clause 21.

The Chair enquired if the constitutionality of the provision in the Criminal Procedure Act had been tested. He felt that it was possible that the provision was unconstitutional. In terms of the IMB provision, the "gathering of… must be necessary" so that the test is one of necessity.

Mr Labuschagne was of the opinion that there was a vast difference between search warrants and the gathering of archived information.

The Chair felt that there were three tests. The judge would have to be satisfied on reasonable grounds that the gathering of information was necessary.

Mr Labuschagne noted the NDPP's comment that there should be some test, however not so high.

The Chair noted that three of the tests are that of necessity, with another requiring that a serious crime must be committed.

Mr Labuschagne directed the Committee's attention to the NDPP's motivation in their recent submission.

The Chair read through this and agreed that the gathering of archived information could not be compared to a search warrant. Secondly, he felt that it was possible that warrants in that form were not constitutional.

Mr Labuscagne suggested the option of deleting the word "satisfied" so that if it appears to the magistrate that there are grounds, he could issue a warrant.

The Chair agreed that that could be done but was unsure what the word "necessary" referred to, was it perhaps necessary for the prevention of crime? He suggested the use of the words "access to" or "gathering. He did not want to create the impression that this scenario only applied to the gathering of information for intelligence purposes. He recommended that it somehow be added that the warrant be necessary for the gathering of information for the investigation of a crime. He felt it important that the principle be correct. There provision required two limitations. Firstly, a warrant should only be able to be obtained for the five types of situations contemplated by the Bill and secondly that the test was one of necessity.

The Chair moved on to Clause 6, for which there was no comment, and then Clauses 7 and 8.

Mr Labuschage commented that this was a new provision which requires a judge, whenever he issued such direction, to register a copy, but he did not think that the provision was relevant as the provision on judges had been deleted.

The Chair felt that the provision could still be important because if a person had to ask for a direction for which an order had already been issued, there would at least be a record of it.

Mr Labuschagne suggested that another reason was if the law enforcement agency approached a judge who refused to issue a direction and so approached another judge, there would then be a record of it.

The Chair was happy with the provisions and felt that they should be kept. The Chair moved on to s15. He was concerned about a reference back to another provision. To prevent confusion he felt that the test should be repeated within the same provision.

Mr Labuschagne noted that changes had been made to the numbering of the provisions.

Appendix 1:
TO THE PORTFOLIO COMMITTEE ON JUSTICE AND CONSTITUTIONAL DEVELOPMENT

FROM: THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS

SUBJECT: COMMENTS ON INTERCEPTION AND MONITORING BILL, 2001

DATE: 4 MARCH 2002

I wish to thank the Committee for affording my Office the opportunity to make further submissions in respect of the amended Bill. Most of our concerns in the first Bill and Working Document(Draft 1) have been dealt with in Working Document(Draft 2) and the proposed merging of Chapters 3 and 4. In the mean time we have received detailed comments from Adv ALJ Steynberg(DSO Kwazulu-Natal) relating to Draft 1. His comments have been included in our further comments hereunder.

1. Clause 1
1.1 The definition of "serious offence" is much broader than the definition proposed in the first Bill and the definition proposed by my Office. I support a broad definition, but the constitutionality thereof is arguable. Consideration should also be given to the inclusion of offences in terms of Chapter 3 of the Prevention of Organised Crime Act.

1.2.1 The definition of "archived call related information" refers to information stored by the telecommunication service provider "for a period of at least 12 months from the date of the transmission of the indirect communication to which that call-related information relates". There appears to be no corresponding clause in Chapter 7 which specifically requires the service provider to keep such information. The period of 12 months, for which it appears to be contemplated that service providers be obliged to store such information, is regarded as entirely insufficient. Experience has shown that investigations are often only received by the Directorate (or by the DPP) long after this period has expired. Furthermore, such information often only becomes relevant once the matter reaches trial and a specific defence is advanced, which may only be several years down the line. Although the amended definition will extend the period for a further three months, the view is held that it is still insufficient.

1.2.2 It is therefore recommended that a clause be inserted in the Bill specifically requiring the telecommunication service provider to archive call related information for a period of at least 36 months (preferably 60 months) from the date of the transmission of the indirect communication to which that call-related information relates, and that the above definition be amended accordingly.

1.3. Ad definition of "direct communication"

The opinion is held that where any person engages in a communication in the presence of a third person whom he or she knows to be there, such communication cannot be said to be "private" vis a vis that third party. Thus, such third party would be entitled to disclose the contents of such a conversation in evidence in any subsequent prosecution of the first person. Therefore, there seems to be no reason why such a third party should not be included in the definition of "direct communication" as contemplated in paragraph(b). The inclusion of the proposed paragraph (b) is therefore supported.

2. Clause 11(1)(a)
2.1 We have serious misgivings about the wording of clause 11(1)(a), in particular the phrase "cannot be investigated in another appropriate manner". The opinion is held that this will open the door for the challenging of a directive, with the benefit of 20:20 hindsight, on the grounds that there were indeed other avenues of investigation open to the applicant of which he or she must have been aware, and that the application must accordingly have been made male fides. It would be a very difficult burden to discharge to show that no such avenues existed. It is accordingly submitted that, if it is felt that this clause is indeed intended to be a requirement for the application, then it should be qualified by the insertion of the adverb "effectively" or "adequately" in front of the word "investigated". This will enable the court to discount every possible avenue of investigation which ingenuity may suggest, where such methods of investigation are unlikely to have produced the desired results.

2.2 We therefore recommend the deletion of the words "and cannot be investigated in another appropriate manner" in clause 11(1)(a), alternatively that clause 11(1)(a) be amended to read "and cannot be adequately/effectively investigated in another appropriate manner".

2.3 It is suggested that similar amendments be effected in respect of the above wording in other provisions of the Bill. See for example clause 11(1)(c), (d) and (e).

3. Clause 12
3.1.1 The obtaining of telephone and cellular phone records is an invaluable and routinely used investigative tool, especially in the investigation of crime syndicates. In the past, telecommunication service providers have freely provided such information to law enforcement agencies upon the mere production of a subpoena in terms of section 205 of the Criminal Procedure Act or section 28 of the National Prosecuting Authority Act. No other formality is required, nor does the agency have to lay any substantive basis for their need for such documentation. This status quo has not to date, to our knowledge, been successfully challenge in our courts. The possibility of such a successful challenge, however, cannot be excluded. This information is of a confidential nature and it could be argued that allowing law enforcement agencies unfettered access to such information is in breach of the clients right to privacy. Nor, it can be argued, do the provisions of section 205 or section 28 provide an adequate safeguard against the abuse of such powers. These sections were rather intended to compel recalcitrant witnesses to produce required evidence and not to provide "checks and balances" against executive abuse. Although the application for a section 205 warrant has the effect that a member of the NPA must apply his or her mind to the request for evidence, it can be argued that, in line with the principle of separation of powers, this function should rather be performed by a member of the judiciary. (The same principles can be said to apply to requests for banking records, insurance details, medical records and any other instances where the owner of such records owes a duty of confidentiality towards the customer. Further consideration may have to be given to the procedures for obtaining this type of information in due course.)

3.1.2 It is accordingly submitted that the enactment of provisions to regulate the obtaining of call-related records is prudent and in line with the spirit of the Constitution. However, a clear distinction needs to be drawn between the levels of protection necessary to protect the privacy of such records as opposed to the privacy of the actual conversations. As is the case with bank records, all customers must be aware that telecommunication service providers keep records of their customers call for legitimate business purposes. In the absence of any specific agreement to the contrary, it must be foreseen by the customer that such records may be made available to law enforcement agencies investigating a crime. Consequently, it is submitted, that the obtaining of such records does not constitute nearly as egregious an inroad into a customer's right to privacy as the actual interception of the contents of his communication (in which the customer may suo moto implicate himself or herself in the commission of an offence). Such records also constitute real evidence, which the courts are far more ready to admit despite an infringement of an accused's constitutional rights. (See, for instance, S v Naidoo and Another 1998 (1) SACR 479 at 526 e to 527 f)

3.1.3 It is therefore submitted that the inclusion in clause 12 of the various requirements set out in clauses 11(5)(a)(see the proposed clause12(2)(b) and (4)(a) of the proposed merging of Chapter 3 and 4) is entirely unnecessary and will create a severe and unjustifiable obstacle to the effective investigation of crime. It must be pointed out that the proposed procedure is far more onerous than that prescribed in the Criminal Procedure Act for the obtaining of a search warrant. In terms of section 21, read with section 20 of the Criminal Procedure Act, any magistrate may issue such a warrant if he or she is satisfied that evidence on oath exists that an article (which, inter alia, may afford evidence of the commission of an offence) is in the possession or under the control of any person ¼ or upon or at any premises within his area of jurisdiction. Armed with such a warrant, a law enforcement officer may enter a person's home, by force if necessary, and search through his or her most personal possessions and documents - a far greater invasion of privacy than merely obtaining some phone records!

3.1.4 Of particular concern is the proposed requirement that the offence "cannot be investigated in another appropriate manner". Such information is often required as the starting point of an investigation, for instance to determine the lines of communication of a syndicate and thereby identify its members. The inclusion of this requirement would effectively relegate this investigative technique to "method of last resort". It is submitted that this would amount to a serious and unjustified curtailment of the investigative process. It is furthermore submitted that there are no compelling reasons to limit the application for such information to "serious cases". The situation can be envisaged in which such information could be required in order to investigate, for instance, the theft of a cell phone, or the making of obscene phone calls.

3.1.5 In view of the above it is accordingly recommended that a less stringent procedure be included in the Bill to regulate the application for archived call-related directions, akin to the procedure prescribed in the Criminal Procedure Act for the obtaining of a search warrant. It is submitted that this would provide adequate protection for the privacy of the individuals phone records without unduly hampering the effective investigation of crime.

4. Clause 13
4.1 Many of the arguments raised in paragraph 3 above apply equally to the gathering of real-time call related information in clause 13. Again it can be argued that the degree of the invasion into the customers privacy is far less than in the case of interception of an actual communication. It is recognised, however, that such a direction would impose a serious imposition on the telecommunication service provider in terms of cost and manpower, and for this reason a somewhat more stringent procedure than that recommended in paragraph 3.1.5 supra, might be appropriate.

4.2 In view of the above it is recommended that clause 13 be amended along the lines set out in paragraph 3.1.5 supra, except that such application should be made to a judge of the High Court and only in relation to "serious crimes", as defined.

5. Clause 51
5.1 It is recommended that transitional arrangements be included to provide for the admissibility of archived call-related information obtained prior to the fixed date by any other available procedure.

6. In the final instance it is recommended that consideration should be given to the inclusion of a "whistle-blower" clause in Chapter 8 prohibiting a telecommunication of postal service provider, or any other person, from informing a customer of any application or direction relating to the interception of communications or the provision of call-related information.

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS

Appendix 2:
Proposed Amendment to Section 158A(6)
(6) After the composition of a Municipal Council has been changed as a result of the provisions of subsection (2), (3) or (4)-
(a)…
(b)…
(c)...; and
(d) all the structures of such a Municipal Council must be reconstituted in accordance with applicable law; and
(e) if such a Municipal Council appoints members of another Municipal Council as provided for in section 157(1)(b), members must be appointed anew/afresh in terms of national legislation to represent the appointing Council.