The Committee had received a draft Committee bill to amend the Sexual Offences Act, and it was also sent to the Women’s Legal Centre. Although the Committee wanted to have this Bill passed in the week ending 1 June, it seemed that the Chief Whips Forum had decided not to deal with any legislation. A Committee Member left the meeting to attend that Forum and ask for permission to deal with the matter. The Committee resolved to agree to suspension of any rules, as necessary, to allow the matter to be dealt with urgently.
The Committee then resumed deliberations on the Prevention and Combating of Trafficking in Persons Bill, noting the latest proposals for amendment by the drafters. Submissions on the Bill had been made by MWeb and the Internet Service Providers Association (ISPA). Both had objected to clause 8 of the Bill, believing that it conflicted with the Electronic Communications and Transactions Act (ECT Act) and RICA legislation dealing with interception of electronic communications. They suggested that if internet service providers (ISPs) were expected to monitor and block communications, this was disproportionate and well-nigh impossible, as well as departing from the general principle and international best practice that ISPs were merely conduits for the sites they hosted. They felt that unduly harsh sanctions were imposed for non-compliance, and suggested that the Bill was infringing rights to privacy, violating the rights of individuals to due process, since the ISPs would be taking unilateral action to block sites, and interfering with freedom of expression. They felt that it was unreasonable to impute knowledge that a site was being used for trafficking purposes. The drafters from the Department of Justice and Constitutional Development and South African Law Reform Commission explained the intention behind these clauses. It seemed that clause 8 had been misinterpreted by these bodies. The obligations cast by this Bill were not dissimilar to those that ISPs were already performing under the Film and Publications Act, Children’s Act and ECT Act. However, to achieve greater clarity, it was suggested that the word “intentionally” be inserted in clause 8(1)(c), and the words “all reasonable steps” be replaced with “such reasonable steps as may be required”. Specific references would be made to matters “as prescribed by ICASA”. A new subclause 8(5) would be added, stating that nothing in this section required an ISP to monitor activities, worded similar to the parallel provision in the ECT Act.
Members agreed with the insertion of clause 8(5), and the reference to matters prescribed by ICASA, and agreed that ISPs were regarded as conduits and should not be required to intercept communications or actively snoop in sites. A Member raised concerns whether clause 8(1)(c) was intended to refer to a perpetrator only, as the wording seemed also to incorporate ISPs and print and broadcast houses. Suggestions were made that the clause could be broken up, or should specifically exclude ISPs. Members felt the word “ensure” was too prescriptive in clause 8(2). Some Members were concerned that clause 8(3) came close to prescribing what the Independent Communications Authority of South Africa should do. Members questioned what “intercept” would mean, and asked what “an internet address” would cover. They distinguished between the position of ISPs and “traditional” media. They also noted the objections that had been raised, in respect of other legislation, to the words “ought reasonably to have known” although they were convinced that this was appropriate in the context of clauses 8(1)(a) and (b). After extensive debate, the drafters noted instructions from the Committee to insert the word “intentionally” in clause 8(1)(c), and remove “knows or ought reasonably to have known” from that clause, to check whether the Regulator could make regulations for ISPs, and to check whether “internet address” was broad enough to cover other sites. The drafters would suggest alternatives for the word “ensure”, and clause 8(4)(c) was flagged for further debate around possible cancellation or revocation of licences. The Committee further noted that it would discuss the concerns raised by the Department of Home Affairs when debating the Bill, but did not need to consult with this department again. It was hoped to present the Bill to plenary either later in the term, or early in the next term.
The Committee noted the latest technical amendments to the Sheriffs Amendment Bill, and passed the Bill with amendments, as well as the Committee Report. The DA representative indicated that she had no objections to the Bill but had to formally present it to her caucus, and abstained from voting.
The Committee discussed a request from Parliament’s International Office to meet with a delegation from
Procedure for Sexual Offences Amendment Bill
Mr J Jeffery (ANC) noted that a draft new Sexual Offences Amendment Bill was being distributed to Members, and it was originally suggested that a motion should be moved in the House the following day, asking for leave to introduce the Bill, with the intention that it be passed in the following week.
He had just heard that the Chief Whips Forum had agreed not to have any legislation in the following week. However, he would attend a meeting with that Forum, at 10:00, to ask them to reverse that decision and allow the Bill to be introduced and passed. He noted that it may be easier if the Bill passed without declarations or debate, and suggested that if parties wanted to say anything, they should rather do that on 24 May, when the resolution was adopted. Some Rules may have to be suspended, as there would not be public hearings. Although the rules allowing for publication to be suspended in certain circumstances, including urgency, they did not speak directly to Committee Bills, but he asked that, to be procedurally correct, this Committee resolve that the matter was urgent and agree that any applicable Rules could be suspended.
Ms D Schäfer asked that the Committee be careful to follow the right process. She said that, since debating the matter on the previous day, she had wondered if the proposed amendment was specific enough, as the Prins judgment had said that a person could not be punished until s/he knew what the maximum penalty was. The Committee must ensure that it had covered all grounds.
Mr Lawrence Bassett, Deputy Chief State Law Advisor, Department of Justice and Constitutional Development, responded that the Bill had been sent to the State Law Advisors and Counsel, to check precisely that point.
Mr S Swart (ACDP) supported a suspension of Rules as necessary, and urged Members to pass the necessary resolution. He also urge Members to ensure that when they spoke to anyone on this issue, the remarks should be confined to this issue narrowly, and no extraneous matters introduced.
The Chairperson noted that he had submitted the draft to the Women's Legal Centre.
Members agreed unanimously to proceed as suggested by Mr Jeffery, and to pass the resolution to call for suspension of the necessary Rules in this case.
Prevention & Combating of Trafficking in Persons Bill
Mr Bassett noted that there were two outstanding issues, after the last meeting of the Committee on the Prevention and Combating of Trafficking in Persons Bill (the Bill) on 7 December 2011. A revised document had been sent to Members in the meantime, noting some additional amendments that needed to be made (see attached Proposed amendments to version of 12 January). The latest draft of the Bill was dated 22 May (see attached document). The drafters would set out the comments on the Internet Service Providers.
Ms Engela Steyn, State Law Advisor, Department of Justice and Constitutional Development, said that during December submissions had been received from internet service providers (ISPs) expressing their concern on clause 8 of the Bill. She reminded Members that this clause criminalised conduct that assisted trafficking in persons. In terms of the clause, an ISP was supposed to take reasonable steps to prevent hosting of internet sites that facilitated trafficking, and also to prevent advertising, publishing, broadcasting via the ISP. The ISP was also required to report knowledge of such internet sites or activities to the South African Police Service (SAPS) and take reasonable steps to prevent trafficking via these sites that the ISP hosted. Clause 8(3) made it an offence for an ISP to fail to comply with clause 8(2), and clause 8(4) said that a finding by a court of an offence would lead to withdrawal of the ISP’s licence.
MWeb had submitted that this clause imposed disproportionate obligations and contained unduly harsh consequences for non-compliance. In the view of MWeb, this wording would actually require ISPs to monitor and block communications, would required them also to assess the communications of their customers, and to check their files. This would all require sophisticated systems. It would be impossible for an ISP to gain a reasonable suspicion of trafficking, without monitoring of all communications.
MWeb expressed concern that these provisions represented a departure from the existing provisions in the Electronic Communications and Transactions Act (ECT Act) and the “RICA” legislation, dealing with interception and monitoring of electronic transactions. MWeb drew attention to Chapter 11 of the ECT Act, and said that section 78 did not place any general obligation on an ISP to monitor data of its clients, nor establish the legality of what they were doing. Section 83 of that Act said that when an ISP distributed data, it was acting as a mere conduit and would not be liable for wrongful actions on the part of its clients. MWeb suggested that Chapter 11 of the ECT Act accorded with best practice and provided adequate provisions to assist the law enforcement agencies.
MWeb submitted that this Bill was also in conflict with RICA, as in that legislation there was no suggestion of general monitoring, but only monitoring of specific transactions, following an order made by the RICA judge. Certain requirements around identity, law enforcement officers, grounds, full particulars, other investigative procedures and the period for which monitoring was required were specifically stated. If the judge was satisfied that these requirements had been met, s/he would make a directive in writing, and had the power to impose conditions.
MWeb was of the view that a generalised monitoring, as suggested in this Bill, infringe the Constitutional rights of privacy, just administrative action and access to courts, and the freedom of ISPs to conduct their business. It was not possible, in MWeb’s opinion, to extend the scope of regulation beyond section 16 of the Constitution, unless regulation met the criteria of justification as prescribed in section 36 of the Constitution. Clause 8 contained no safeguards to protect the constitutional right to privacy, if ISPs were being expected to monitor clients’ communications. Furthermore, the Bill violated the rights of individuals to due process and access to court, as the ISPs were required to make unilateral decisions without affording individuals the opportunity to be heard. MWeb quoted a case in the
MWeb added that clause 8 went beyond what was necessary to give effect to the United Nations Protocol on Trafficking. It concluded that the ECT Act and RICA were sufficient to deal with any problems that may arise, as well as the common law, and clause 10 of this Bill, and suggested that clause 8 be removed.
MWeb agreed that ISPs should report sites that facilitated trafficking to the relevant law enforcement authorities, but stated that actual knowledge should be required. In relation to the requirement that ISPs should take down such sites, MWeb suggested that the Bill provide that an ISP could take down a site in terms of the ECT Act, but that ISPs also be indemnified for any wrongful take-down.
MWeb thought the penalties were excessive, and moreover suggested that they would interfere with the regulatory licensing activities of the Independent Communications Authority of South Africa (ICASA).
MWeb pointed out that, in practice, ISPs would struggle to comply with clause 8(2), because they would not be sure what were the “reasonable steps” that they were required to take to prevent hosting of illegal sites. As stated earlier, it was unlikely that these sites would be known unless specifically pointed out. In this case, the ISPs would inform the law enforcement agencies, and MWeb believed it was up to those agencies to take the necessary steps. MWeb reiterated the difficulty of any ISP being able to determine whether its suspicions were correct that a site was being used for unlawful activity, and if the ISP took down a site, this could well interfere with investigations by the law enforcement agencies. MWeb believed that SAPS and the ISPs should work together, and preferred that, rather than “prowling”, the ISPs should report concerns to the appropriate bodies. The final practical problem was that an internet site that had been taken down could immediately be re-born with another name, and the ISPs would face the same difficulty in tracking it.
The Internet Service Providers’ Association (ISPA) also made a submission. It had suggested a definition for an Internet Service Provider as “an electronic communications service provider who provides access to…”. The State Law Advisors, however, pointed out that the definition would follow the definition in RICA.
ISPA also thought that the Bill’s clause 8 was in conflict with Chapter 11 of the ECT Act, which dealt with the liability of ISPs in relation to the information contained on their information systems. Similar concerns were expressed to those of MWeb, in relation to the perceived conflict with sections 77 and 78 of the ECT Act. ISPA also stressed that ISPs were not required to undertake a blanket monitoring of the systems. It submitted that the taking of “all reasonable steps” would require ISPs to enter into contractual agreements with their subscribers that the subscribers would not use any sites for illegal means. ISPA pointed out that apart from this not being desirable, it was physically impossible for ISPs to intercept and monitor all communications. RICA already set out a framework for lawful interception of communications. Instead of having clause 8(2)(b)(iii), ISPA suggested that it was possible to use section 205 of the Criminal Procedure Act (CPA).
Ms Steyn noted that section 205 of the CPA provided for the taking of evidence as to an alleged offence, and she did not understand how ISPA linked taking steps to deactivate a site with this section.
ISPA had gone on to note that clauses 8(3) and 8(4) were not clear as to exactly what would constitute an offence, and claimed that they were in any event disproportionate because they placed a huge burden on the ISPs.
Ms Steyn said, in relation to the last point, that the offences in 8(3) and 8(4) were essentially a failure to comply with the provisions of clause 8(2). Clause 8(2) required an ISP to take reasonable steps to prevent the use of its sites for hosting, to report knowledge of illegal sites, to preserve evidence and to take down sites that were illegal in terms of the Bill. If an ISP failed to do any of these, it would constitute an offence.
Finally, ISPA had urged that improved interaction was needed to create a clear understanding.
Ms Steyn said that the origins of clause 8 stemmed from the South African Law Reform Commission (SALRC) Paper on Trafficking. It was important to ensure effective combating of certain activities. SALRC had suggested that any legislation should criminalise the lease of premises that were to be used for trafficking, advertising to the public or printing of information about trafficking, including using the internet. SALRC had also recommended that the ISPs who became aware of illegal trafficking activities should report them to SAPS. SALRC also urged that there should be appropriate penalties imposed for non-compliance, in line with the provisions of the Children’s Act. SALRC also subsequently advised the Department of Justice and Constitutional Development (DOJ), when this Department asked if ISPs would be required to screen all sites on their service, that ISPs should not be required to do so, but should only report those sites of which they had knowledge, and take reasonable steps to prevent those sites being used as hosting trafficking.
Ms Steyn pointed out that there were other pieces of legislation that regulated ISPs. Section 24(c) of the Films and Publications Act (FPA) related to child-oriented services, including chat groups on the internet or mobile phones. Here, ISPs must moderate and take steps to ensure that the services were not being used for the purpose of committing an offence. ISPs were required to display safety messages, and provide a mechanism for children to report suspicious behaviour or any behaviour that was indicative of the commission of an offence to SAPS. ISPs were also required to report on appropriate software that could block a site, if a child being able to access that site would constitute an offence under the FPA.
Ms Lowesa Stuurman, Principal State Law Advisor, South African Law Reform Commission, added that section 27A of the FPA also dealt with obligations of ISPs, and contained provisions similar to those of clause 8 of the Bill, although the FPA provisions dealt with child pornography, whilst the Bill dealt with trafficking. The FPA was amended in 2009, to add a penalty provision for ISPs who failed to comply with the provisions of this section, including imprisonment of up to five years. She wondered why the ISPs had not objected to this provision, but were objecting to the Bill.
Ms Steyn added that IPSA had been asked how ISPs were currently complying with the FPA, who had responded that there were “acceptable use” policies, rules for chat-rooms, set procedures, and removal of sites when requested. MWeb had noted that the public was quick to complain about offensive sites and they would usually be taken down as soon as a request to do so was received under the ECT Act. However, she stressed that ISPs were only able to take down the sites that they themselves hosted, and not sites of other providers, or those offshore. The requirements were primarily aimed at protecting children. ISPs were required to moderate services and take reasonable steps to ensure that their own-hosted sites were not used for the commission of an offence, so she pointed out that this was not anything completely new. In addition, the Children’s Act contained provisions similar to clause 8(2), referring specifically to the prohibition on leasing premises to harbour a child who was a victim of trafficking, or advertising, publishing or broadcasting information, including internet advertising, around child pornography. MWeb had also already confirmed that it would inform SAPS of any contraventions that came to its notice.
Ms Steyn concluded that it seemed that neither MWeb nor ISPA had properly understood the reasons, rationale and wording of clause 8(2). The intention was not, as they had suggested, to require ISPs to monitor all services, but to require them to report knowledge. Again, she stressed that similar reporting requirements were already expected of the ISPs under other legislation. An amendment had, however, been formulated by the drafters, for consideration by the Committee, in order to clarify any uncertainty.
She set out these amendments. For subclause 8(1)(c), she suggested that the word “intentionally” be included. She pointed to the footnote, also, in relation to the use of “and”, and suggested that this word be replaced with “or”.
In respect of 8 (2), it was suggested that the words “all reasonable” should be replaced with “such reasonable steps ….as may be required”.
The words “has knowledge” should be replaced with the phrase “is aware, or becomes aware”.
In subclause 8(2)(b)(ii), the words “all reasonable” would again be replaced with “such reasonable steps (to preserve, as may be required)”. She said that it might be necessary for SAPS or the NPA, on a case-by-case basis, to indicate what the steps may be, depending on what emerged.
In subclause (iii) the same replacement was needed for the words “all reasonable”.
A reference should be made to “as prescribed by ICASA” to put the requirements beyond doubt.
Ms Steyn then suggested that subclauses 8(3) and 8(4) should remain in their current wording, as the drafters did not agree with the submissions on these clauses.
Finally, a new subclause 8(5) would be added, stating that nothing in this section required an ISP to monitor activities, and it would be worded similar to the parallel provision in the ECT Act.
Ms M Smuts (DA) agreed with the insertion of a new subclause 8(5). She noted that the current legislation was under pressure, because so much crime was being committed over the internet. However, some of the requirements were simply not realistic. She agreed that ISPs were a mere conduit, although she predicted that in future more active steps may be required of them. The cases from the
Ms Smuts also raised another issue. She had queried the original rationale behind clause 8(1)(c), and agreed that the word “intentionally” should be inserted. However, she thought that this subclause was surely intended to refer to the perpetrator, which was why “intentionally” was needed. As presently worded, the clause seemed to deal with both the perpetrator and ISP, for the words “should have known or suspected”, in the second half of that subclause, seemed to now be referring to the ISP. The SALRC had originally recommended that this clause be inserted to deal with perpetrators, and this was the reason why all the “old” broadcasting and advertising mediums had been included. The introduction of the internet raised other technological issues. She did not believe that any ISPA member should be held responsible or regarded as negligent if illegal material appeared on the sites they hosted. Ms Smuts therefore suggested that subclause 8(1)(c) should be broken up into separate portions, one dealing with the perpetrator and the other with the ISP.
Ms Smuts went on to comment on clause 8(2), saying that it was not possible for ISPs to "ensure" what the clause was suggesting. She agreed with the insertion of a reference to “as are prescribed by ICASA”. However, she was extremely concerned at the wording around the revoking of licences. This was not the first time that the DOJ&CD had inserted such a provision. She pointed out that the Regulator, ICASA, issued licences on the basis of a broad range of criteria, and it was quite wrong for the Legislature to say that a court must instruct a Regulator to revoke a licence, when the licences were governed by another set of laws. She reiterated that the ISPs were acting only as conduits, not putting up the offensive material themselves. There was only so much that ISPs could do.
Mr Jeffery commented that he did not see much difference between using “all reasonable” and “such reasonable” steps. He agreed that MWeb’s concerns about the inappropriate and disproportionate obligations were correctly framed; the clause said specifically that the ISPs would be required to take “reasonable” steps so they would clearly not be expected to take steps that were not reasonable. He did agree with inserting the reference to the ICASA regulations, as he pointed out that self-regulation by the ISPA was likely to involve over-reliance on self-regulations. Finally, he agreed with Ms Smuts that “ensure” was perhaps not the right word, but was not entirely convinced that “prevent” was ideal, although it was certainly a less imperative verb.
Mr Swart thought the proposals now put forward by Ms Steyn were good, and agreed that this Bill should be brought as closely in line as possible with the ECT Act. He also approved of inserting a reference to “as prescribed by ICASA”, although the final wording may still need to be debated. He also agreed that a better word than “ensure” could be debated. He shared the concerns of Ms Smuts in relation to the present requirement that the authority granting the licence “must” review the licence and revoke or cancel it. He suggested that perhaps it might be better to consider whether something could be inserted into the regulations. He thought that the court should bring any matters to the attention of ICASA, who should then act in terms of their own legislation and regulations. He also agreed with the insertion of the new clause 8(5). Finally, he asked if these suggestions represented consensus between the SALRC and DOJ&CD drafters.
Ms Smuts noted the reference to the 2009 amendments to the FPB legislation, and said that this was a poor piece of work.
Ms Stuurman confirmed that clause 8(1)(c) was intended to refer to the perpetrator. She wondered if the word “intentionally” was needed, as the word “knows” was used already.
The Chairperson said there was no way that an ISP could “know” everything put on the internet.
Ms Schäfer noted that the perpetrator could also potentially include ISPs, because it referred to anyone who broadcasted.
Ms Smuts agreed that this was how it read, but did not believe this was the intention of the SALRC. For this reason, she suggested that the second half of this clause be taken out.
Mr Swart stated that if the intention was that ISPs not be covered, it would surely be easier to add the phrase “excluding ISPs”.
The Chairperson thought that clause 8(2)(a) sought to address that. Committee Members themselves did not seem to find agreement on who was broadcasting, so there was clearly uncertainty.
Ms Schäfer wondered if the words “causes to be published” might solve the problem.
Ms C Philane-Majake (ANC) said that it was possible that the ISP could be regarded as providing the information.
The Chairperson clarified that an argument had been raised that the ISP was merely a conduit. If it asked its client if the site would be used to advertise trafficking, the client would clearly say that it would not.
Ms Schäfer added that the ISPs had noted that they would take down an undesirable site if this was brought to their attention. She agreed that it was undesirable to have active monitoring, but noted that if a trafficking site was not taken down, this was equally undesirable.
The Chairperson asked for clarity on what “interception” meant. He thought that if something was already placed on the site, there was nothing to “intercept”, unless if referred to e-mail interceptions.
Members debated whether using words such as "if it is brought to the attention of a service provider that a site is being used for…" would assist, but decided that it was already covered.
The drafters confirmed, in answer to a specific question from the Chairperson, that the ISP could prevent access to an internet address by blocking the site.
Ms Smuts reverted to her objections to clause 8(4). She made the point that ICASA regulated and licensed under the Broadcasting Act, the ECT Act, the ICASA Act and other pieces of legislation. There were many criteria both around licensing and revocation of licences. She was concerned with the problems inherent in preventing free speech, and again urged that clause 8(4) should be removed altogether.
The Chairperson responded that the wording of the clause was “serving as a ground for” and there was nothing actually requiring that the licence must be revoked. ICASA would still have the right to say that it did not agree with a court.
Ms Smuts took the point, but felt that this was still trying to add additional grounds to something legislated for elsewhere, and that this was inappropriate. An ISP could not be criminalised for the fact that somebody else was attempting to traffick via one of its sites, as the ISP had not actively done anything itself, although it may have failed to block the site or interact, or take reasonable steps as prescribed by ICASA.
Ms Philane-Majake noted that it was sometimes very difficult to enforce compliance because the sanctions were lacking, and she thought that if this clause would assist ICASA, then it should be left in. ICASA would clearly have to consider whether the finding justified revocation of the licence.
The Chairperson pointed out that there were checks and balances. Ultimately, the decision would lie with ICASA and not the court.
Ms Schäfer asked that the Committee consider clause 8(1)(c) again. She wondered if it was possible to distinguish between advertising, and allowing advertising to be done, and, in the latter case, actual knowledge should be needed. She thought that imposition of penalties would be appropriate if ISPs were aware of what was on the sites they hosted, but failed to stop it.
Ms Stuurman referred to the previous suggestion of Mr Swart, and asked Members to consider if the problem might not be solved by including, in this clause, the words “other than an ISP”. If the ISP did know of the content and failed to act this would be covered under 8(2)(b).
Ms Schäfer thought this might work, but asked the drafters if the reference, in this clause, to an internet address would also cover e-mails, websites, blogs and other things. She would be happy with an assurance that 8(2) (b) was broad enough to cover everything, and an exclusion of ISPs from 8(2)(c).
Ms Smuts cautioned that an exclusion of ISPs under clause 8(2)(c) might lead to unintended consequences. The print media and their editors would be caught under this section if they published, printed and distributed material that advertised or promoted trafficking. She conceded that they were in a different position to the ISPs, as they were clearly in a position to check what they published. She reiterated her opinion that the whole subsection ought to refer to the actual perpetrator only.
Ms Stuurman confirmed that the print media would be caught under 8(2)(c), but only if they knew or ought reasonably to have known of the trafficking. If there was no knowledge or no negligence, they would be excluded.
Mr Swart suggested that a practical example be used, and suggested that if an advertisement for a massage parlour was placed, it might fall foul of this section. He noted that the Department of Home Affairs (DHA) continually had problems with places such as Mavericks, although he conceded that this was mainly around illegal immigrants. DHA had already expressed its concerns on the Bill, and felt that it left a number of loopholes.
Mr Swart also commented on the “ought reasonably to have known”, which essentially created a reverse onus on the accused. He hastened to add that he thought it was appropriate in this Bill, but noted that the attempt to create a reverse onus had recently been criticised by commentators from the Legal Resources Centre in relation to the Protection of State Information Bill. If ISPs were excluded specifically, it was still necessary to consider the broader context. He added that people may even place advertisements for something as innocuous-sounding as employment agencies, and he wondered whether the newspapers would be obliged to check that these were legitimate employment agencies.
Ms Schäfer thought there was a distinction between a matter publicised as possibly linked to trafficking, and one that was, on the face of it, something such as an employment agency. She thought it would be unreasonable to require the print media to check the background to all its advertisers.
Ms Stuurman confirmed that it was not intended that there be any obligation on the media to investigate whether there was anything behind a seemingly-respectable advertisement.
The Chairperson asked for comment from the drafters on Mr Swart’s point about the reverse onus.
Mr Bassett said that clause 2 of the Bill, which dealt with the application of the Bill, seemed to cover the position already. He wondered if it was necessary to use the phrase “knows or ought reasonably to have known” at all in clause 8(1)(c).
Ms Stuurman said that, throughout the Bill, the words "or ought reasonably to have known" had been added wherever “knows” appeared.
Mr Swart suggested that the word “intentionally” could replace “knows”.
Ms Steyn said that the words “knows or ought reasonably to have known” were in clauses 8(1)(a) and (b).
Members agreed that the phrase was appropriate in this context, but should be removed from 8(1)(c), which dealt with something different.
Ms Smuts confirmed that ICASA was a full rule-making body and she was almost sure that it did cover ISPs. It certainly licensed the ISPs, so it followed that ICASA would be likely to prescribe for them also. She noted that other Members did not seem to agree with her objections on clause 8(4).
Members agreed that clause 8(4) should not be removed. However, Mr Swart wondered under what circumstances ICASA would revoke or cancel licences, and he wondered if, instead of making a specific reference to revocation or cancellation, the words “to take the necessary steps” should be used.
The Chairperson asked what would happen if ICASA did nothing.
Mr Swart noted that the ISP would still be guilty of an offence under clause 8(3), and because of this, it was unlikely that ICASA would fail to act altogether. However, a deterrent was needed.
Mr Bassett said that this clause was similar to provisions in the Sexual Offences Act. He commented, to follow up on Mr Swart’s suggestion, that perhaps the clerk of the court should notify ICASA, being the authority who granted the licence, of the offence.
Ms Schäfer said that she was not confident that the clerks of the courts would in fact do so.
Mr Swart said that clause 8(4)(a) introduced the grounds for revocation, once informed by the clerk of court.
Ms Schäfer did not agree, pointing out that there was nothing compelling a revocation. She suggested that wording along the lines of: “may revoke where necessary" might be preferable. It was necessary to find a balance between prescribing what must be done, and providing a deterrent for the ISPs.
The Chairperson wondered if merely using the words “review of the licence" was sufficient, as this did not seem overly-prescriptive.
Ms Schäfer agreed with this suggestion.
A DOJ&CD official said that an indication of why it should be reviewed, and guidelines would be required.
The Chairperson reiterated that a notification by the clerk of the court might be grounds for the review. ICASA must be aware that this was a serious offence, and take it into consideration when reviewing the licence.
Ms Schäfer suggested that other possible wording might be: “must consider the offence and consider whether it justifies termination or revocation of the licence”.
Mr Bassett recapped the instructions that the Committee had given to the DOJ&CD as follows:
- In clause 8(1)(c), to insert the word “intentionally” and remove “knows or ought reasonably to have known” and the words up to “facilitate trafficking”
- The DOJ&CD would check if ICASA could make regulations for ISPs
- The use of the verb “ensure”, and its possible replacement with “prevent” in clause 8(2) was flagged for further debate
- The DOJ&CD would check whether the reference to “internet address” in clause 8 (2)included emails an suchlike
- Clause 8(4)(c) was flagged for further debate around the use of either “may, where necessary, revoke or cancel the licence” or “with a view to considering whether the offence justifies…”
The Chairperson thanked the drafters.
The Chairperson noted that the concerns of the DHA also needed to be considered by the Committee. The Committee would not like to delay the matter by having more discussions with DHA. In answer to a question from Mr Swart, he said that it was possible that the Committee might be able to finalise the Bill in this term, or take it to a plenary session as soon as possible in the next term. The Committee shared the concerns of the public with the seriousness of the matters and would not like the process to drag out too long.
Sheriffs Amendment Bill [B2-2012]
Mr Johann Labuschagne, Principal State Law Advisor, DOJ&CD, tabled and explained the latest amendments to clauses 3 (insertion of a new section 2A) and clause 13 (amending section 27) of the Sheriffs Amendment Bill. He noted, in respect of clause 13, that a whole new section 27(1A) had been inserted. Because the clause referred to a subsection in that same section, it was not necessary to repeat the section number again. (See attached document for full wording). He noted that similar amendments would need to be effected to the Memorandum on the Objects of the Bill.
The Chairperson asked if the Committee could proceed, or would have to wait for that wording.
Mr S Holomisa (ANC) thought that the Committee could take this as agreed, and authorise Mr Labuschagne to effect the necessary changes in the electronic version.
Mr Labuschagne agreed that it was not necessary for him to provide a completely new and revised Bill to the Committee. He would communicate with the Committee Secretary before he sent the A list to the printers.
The Chairperson asked if Members needed to go through the Bill clause by clause.
Mr Holomisa said that this had already been done. He proposed the adoption of the Bill, and Prof L Ndabandaba seconded that proposal.
Ms Schäfer noted that she had no objections to the Bill, but would have to take it to her caucus, so she would abstain from voting on the Bill.
The remainder of the Committee voted unanimously to adopt the Bill, with amendments
Members also voted to adopt the Committee Report, which noted that the Committee had adopted the Bill, with amendments.
The Chairperson noted that he had received a letter from Parliament's International Relations Office, who informed him that Parliament was processing a request from a delegation from
Ms Smuts thought that the Committee did not have the time to spare, and suggested that the Committee should politely decline. However, her view was not shared by others, who suggested that the Committee could try to accommodate the delegation either at lunch, or a short session. It was noted that the International Relations Office had given no details on whether this delegation dealt with justice matters. Prof L Ndabandaba (ANC) pointed out that justice formed an important component of society and there was therefore merit in meeting with any delegations.
The meeting was adjourned.
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