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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
29 April 2002
INTERCEPTION AND MONITORING BILL: DELIBERATIONS
Acting Chairperson: Ms F Chohan
Documents handed out:
Interception and Monitoring Bill: Working Draft 3
The Committee started off by doing a recap of the previous meeting's discussion on Part 1 and 2 of the Interception and Monitoring Bill. The Committee spent a considerable amount of time trying to find clarity on Clauses 7 and 8, which deal with the 'prevention of bodily harm and damage of property'. Likewise Clause 10 caused much debate as to whether technicians intercepting information about criminal activities in the course of their work should report this to the police. The committee met both in the morning and afternoon. The afternoon session was not minuted by PMG
Mr Labuschagne, the departmental drafter, gave a brief summary of the previous meeting's deliberations. After doing a recap, members asked some questions around Clauses 7 and 8.
Clauses 7 and 8: Interception to prevent serious bodily harm or in case of emergency
Mr Labuschagne gave a recap on Clauses 7 and 8. He stressed that these clauses should be read together. Both these clauses deal with interception of communication by law enforcement officers to prevent bodily harm or damage to property. According to these clauses, any law enforcement officer may intercept communications on the basis of the above grounds even if s/he is not party to that communication. Mr Labuschagne gave an example of a situation in which a person is at sea in a boat that is sinking. In this situation the law enforcement officer may intercept the communication for the purpose of helping that person. Committee members asked if by so doing they were not giving too many powers to the law enforcement officer. Mr Labuschagne indicated that this should be viewed as part of the job of any law enforcement officer to save people or protect them from bodily harm.
Clause 10: Interception for purposes of installation or maintenance of equipment
Mr Labuschagne explained that this clause gives the technicians the right to intercept communication for the purpose of maintenance of repairing the telephone equipment. In other words, the technician may intercept communication even if he is not party to that communication.
The Chairperson asked if the Bill gives the technicians the obligation to report crime to a law enforcement officer. For example, if the technicians discover, during the course of their duty, that there are people communicating on the phone, planning to rob a bank. Her question was largely concerned with whether or not those technicians have the responsibility to act quickly (or to prevent that crime from happening) by reporting the matter to a law enforcement officer. Or does the technician simply ignore the information and proceed with the repair job? Or does the technician have to hand over that information to a law enforcement officer? These questions created an intense debate in the committee.
Dr. Delport (DP) referred the members to Clause 33 which deals with prohibition of disclosure of information. His view was that encouraging technicians to hand over that kind of information could lead to abuse and unintended complexities. He further stressed that doing so would be futile since that kind of information cannot be used as evidence in the courts. However he continued that by so doing, the Bill should not be protecting criminals, but the unlawful or unconsented interception of communication.
The Chairperson's response was that Clause 33 did not sufficiently deal with the case at hand. Instead, it deals with investigation. She asked if there was a role that the common law should play in that regard. This view was also highlighted by Mr. Jeffery (ANC). The Chairperson again asked if, by not encouraging the technicians to provide that kind of information to the relevant law enforcement officer, that was not overriding the principles of common law thereby indirectly ignoring the serious problem of crime.
Mr. Labuschagne stepped in to indicate that it was the obligation of every citizen to report the crime to the relevant law enforcement officer. He referred the committee to Clause 33 which covers the public's obligation to report the crime.
"So, the common law still exists?" the Chairperson asked.
Dr Delport again reminded the committee that, "We exclude the use of that information in the courts".
Mr. Masutha asked if Dr. Delport was aware of the consequences that Clause 10 would have if technicians were not allowed to provide that information - given the prevalence of crime in the country.
Debate around Clause 10 continued without showing any signs of abating. As a result, the issue was flagged and the Chairperson asked the committee to move to the next clause.
Clauses 11 & 12: Interception of indirect communication in connection with carrying on of business & Interception of communication in prison
There was no comment on Clauses 11 and 12.
Clause 13: Application for interception direction
This deals with the issuing of an interception direction. This must be done by means of forwarding a written application to the judge. Mr. Labuschagne indicated that the whole of Chapter 3 had been discussed previously and that they had agreed to exclude the archival information.
The afternoon session was not covered by PMG.