Protection of Personal Information Bill: Adoption; Judges' salaries: discussion

Meeting report

Protection of Personal Information Bill: finalisation
The Chairperson noted that the Financial Services Board (FSB) had indicated, via the drafters from the Department of Justice and Constitutional Development (DOJ) that it wanted to make input at this meeting.

Mr J Jeffery (ANC) noted that nobody was present from the FSB at this stage. FSB had not raised anything new, but had continuing concerns on issues of cross border flows, its responsibility, and the definition of “accountability”. Sufficient opportunity had already been afforded to the FSB to air its views, which it had done, at length, as well as via National Treasury (NT) and if it wished to say more, it should be asked to motivate when the Bill moved to the NCOP. He also pointed out that when the FSB had last approached the drafters, it was informed that it should approach the Chairperson.

The Chairperson confirmed that nobody had approached him;

Mr Henk du Preez, State Law Advisor, Department of Justice and Constitutional Development, said that when he had received the SMS from the FSB, he had asked that the Chairperson be approached. He had also informed the official that the Committee would be giving final instructions and was hoping to vote on the Bill today.

He clarified that the request from FSB related again to the definition, and FSB had requested an amendment to clause 38, pointing out again that it was required to hold information for other regulatory purposes, not merely for protection of members of the public. These issues had been raised before.

Further proposals for amendment from Departmental drafters
Mr du Preez referred Members to the latest draft of the Bill and wanted to make some suggestions.

He noted that clause 4(2)(a) should read: “ excluded, in terms of 6 and 7, from the operations of this Act”.

In clause 5, the words “including the right” introduced the subparagraphs (a) to (i). In order to read more correctly, subparagraph (e) had to be amended, by changing the phrase “personal information” to read “to object to the processing of his, her or its personal information”.

Clause 5(e)(ii) should refer to “’ read with section 69(3)(c)”.
In Clause 6(1)(c)(ii) the word “” [specific]” should be omitted.

In Clause 15(3)(e) the phrase “in an identified form” should be replaced with “in an identifiable form”.

In Clause 26, the word “concerning” must be moved to the margin.

In clause 40(1)(a)(v), the words “with or without a request” should be deleted and replaced with the phrase “upon request or on its own accord”. He pointed out that similar wording had already been amended this way during a previous meeting and this was done for the sake of consistency.

In clause 44(3), in the last line, “regard” should be used, instead of “regards”.

Outstanding matters from last meeting
Mr Jeffery reminded Members that they now had to consider clause 7 and the issues around journalists who were not subject to a Code, as well as cross-border flows of information. He also noted that some discussion was needed on the Schedule’s amendments to the Promotion of Access to Information Act (PAIA).

In relation to the Schedule, he  had understood that it was the intention that a person should apply for information under PAIA, follow an internal appeal, and then had a choice whether to go to the Regulator or to Court, so that a straight line approach was followed.

Ms D Smuts (DA) agreed, saying that originally there had been a “triple avenue”, of using either the internal procedure, or the Regulator, or the Court, which may explain the wording of the heading. She asked if the words “information officer” should be deleted from the heading.

Mr du Preez said that the heading did not need amendment, pointing out that internal appeals were only compulsory in relation to the “hard-core” public bodies, but would not apply to the other categories.

Ms Smuts then suggested that amendments were needed to the amendments for section 78(1) of PAIA, as set out on page 72, as there should be a reference to the new section 77A, correcting the situation that people must exhaust the Regulator’s procedures.

Mr du Preez agreed that the drafters had looked at this. Although he did not have a written handout for the Members, he read out the proposed changes. The new section 78(1) of PAIA, in the Schedule on page 72, should read:
”A requestor or third party may only apply to court for appropriate relief in terms of section 82 in the follow circumstances:
(a) after that requestor or third party has exhausted the internal appeal procedure referred to in section 74; or
(b) after that requestor or third party has exhausted the complaints procedure referred to in section 77A

Section 78(2) would remain in its original  form – in other words, without deleting subparagraphs (c) and (d). A new subparagraph (e) would then be inserted, reading:
”(e) that is aggrieved by any decision of the Information Regulator”. 

The same approach would be followed for section 78(3), so that it should revert to its original wording, including the previously-deleted (c) whilst a new subparagraph (d) would be inserted, reading: “(d) that is aggrieved by any decision of the information regulator”.

Members agreed to these changes.

Mr Jeffery asked the drafters to deal with the issue of the journalists who were not subject to a Code. The drafters had originally suggested including them under clause 7. He noted that, in a previous meeting, the Committee had discussed that these journalists would be able to get a Code, under clause 65. It had also debated how the Regulator should deal with complaints, in the clause dealing with the matters that the Regulator had to take into account. It had been decided to move wording relating to literary and artistic expression, and put it under the clause 7 exclusions, so that this would apply to all journalists, with he same test to apply as was applicable to a decision on literary and artistic expression. Essentially there would have to be a reconciliation of the right to privacy and public expression. However, the wording that was initially produced was not, to his mind, clear enough. The Regulator could deal with complaints. Journalists under a Code were effectively excluded from the application of the Bill, and all the Regulator could do, in terms of 7(2) would be to evaluate the Code itself.

He noted that a new draft clause had been circulated to Members earlier, in which (7)(1)(a) and (b) were combined into 7(1) and 7(2). The intention was to make this read more clearly.

Ms Smuts agreed that there was merit in spelling out exactly what should happen. The additional words that “any alleged interference may be adjudicated in terms of that Code” would make matters more clear, and subclause (2) would deal with the situation where the matter was referred to the Press Ombud or similar body.

Ms D Schäfer (DA) asked what qualified a person to call himself a journalist, if he was not subject to a Code.

Ms Smuts responded that this would encourage online journalists to start creating a Code, under the new press structure. She agreed that at one stage there was a problem that anyone could style themselves as a journalist, but this new draft catered for the problem because the Regulator would be able to take complaints. If a person had abused personal data, the Regulator could apply this test, and deal with the person encroaching on privacy. It would also apply to freelance journalists who filed abroad, if they did not happen to fall under a Code, and they too would be encouraged to incorporate under a Code.

Mr Jeffery stressed that the Bill did not relate to journalists as such, but to “journalistic expression”, and neither that, nor literary and artistic expression, had been defined. It was not quite the same as an exclusion, because the Regulator would be adjudicating on the right to privacy against the right to freedom of expression. The Regulator must have regard to the factors referred to in clause 7, and the intention was that journalists not subject to a Code would nonetheless be subject to the Regulator. Both tests would apply.

He noted that the referencing in clause 44 would have to change, to reflect the changes to clause 7.

Mr Jeffery then moved to the question of historical, statistical or research purposes, which was also linked with the question of trans-border information flows, and the application of clause 72. Clause 37 allowed the Regulator to exempt responsible parties processing information for historical, statistical or research activities, from the provisions of the Bill. He had understood that clause 37 only applied to the conditions set out in Chapter 4, and had questioned whether academics, researchers and others would not have difficulty in sending off information with a personal slant. Ms Ananda Louw of the South African Law Reform Commission had responded that clause 37 applied to the whole Bill, and had also said that clause 72 would be the first condition, as referred to in clause 8. It was possible that the exemptions could also apply to direct marketers. Whilst he had no problem with the principle, he remained concerned that the wording was not sufficiently clear. He had read clauses 69 to 72 as stand-alone clauses, not as giving the Regulator powers to exempt. He suggested that clause 37(1) should perhaps use the same wording as clause 8, so that the Regulator could grant an exemption to process the information, and another alternative might be to specify what would happen in the case of a breach.

Mr du Preez responded that the drafters had looked again at these issues, and had some proposals.

In clause 37(1), after the phrase “for the processing of such information”, he proposed the insertion of “or any measure that gives effect to such condition”.

Ms Smuts agreed that there was no harm in spelling it out in this way.

The Chairperson noted that since these were the proposals for amendment, the Committee could now consider the adoption of the Bill.

At this point representatives from the FSB asked to be heard, and he recognised their presence.

Ms Nonkumbule Tshombe, Head, Legal Department, FSB, said that she had been communicating with Mr du Preez and the FSB was concerned about the effect of clauses 38 and 72, as raised previously.

The Chairperson said that whilst the Committee appreciated the work of the FSB, it was in no different position to other State structures. The FSB was informed on Monday that it should approach the Chairperson. There had been no direct approach to him, and the Committee Secretary, Mr Vhonani Romaano, had received an SMS only this morning. The Committee had responsibilities and could not hold back this piece of legislation any longer. The legislation was introduced in 2009 and the FSB had only recently approached the Committee. The Committee intended to finalise the Bill today, and all proposals had already been considered. The fact that FSB approached the Committee did not imply that its requests would be approved.

Ms Tshombe apologised for being late, as her flight was delayed. The FSB received the communication from Mr du Preez on Monday, but on Tuesday had sent a response, to the National Treasury to clarify exactly what the FSB wanted. She had believed that she should not communicate with the Committee directly, but only via National Treasury, and FSB was then given to understand, in an e-mail, that it would be able to attend this meeting and clarify further. She had understood that Mr Ismael Momoniat, Deputy Director General, National Treasury, would be sending the clarification on to the Committee.

The Chairperson confirmed that he had had no contact with anyone from National Treasury. The FSB had regrettably undertaken a wasted trip. He could not say what the response would have been if Mr Momoniat had contacted him, but it probably would have been the same.

Mr Jeffery noted that he had just checked his phone and had received an SMS from Mr Momoniat at 09:04. This read “Sorry to contact you so late, but the FSB has some concerns. They will be there, should you be open to hearing them…” He noted that the text of this message made it clear that the concerns were those of the FSB, and not NT. He pointed out that the wording of clause 72 had been changed after the meeting with FSB on 14 August. Clause 38, as tabled together, remained the same as it was on 14 August. FSB had been asked to comment on it, but had not done so.

Ms Annah Manganyi, Senior Manager, FSB, reiterated that the comments had been sent through to NT. The FSB was an agency that operated under NT as a government department, and did not, as she understood the position, have the authority to communicate directly with the Committee.

The Chairperson heard that point, but said that NT had not raised that issue.

Ms Manganyi said that the concern was that clause 38 did not include cover for clause 16.

Ms Smuts pointed out that it did now.

Ms Manganyi said that there was a need to consider the exercise of statutory authority. Apart from acting as a public body, the FSB operated with other regulators. For instance, FSB and Council for Medical Schemes had to share information, not in terms of the Financial and Intermediary Services Act, because FSB had been accredited for purposes of the medical legislation. In clause 38(2)(b), the comma, after the word “law”, meant that whatever appeared after comma would be subject to (1) and (2). FSB would only be exempted if it was doing what was set out in (i) and (ii). Its activities in conjunction with other regulators would not be covered. She suggested that the comma should be removed.

Ms Smuts and Mr Jeffery said that this had been dealt with. This clause was tabled three weeks ago. It gave the FSB an exemption from certain conditions, which was actually more than FSB had requested. The medical aid schemes also wanted an exemption from the Act, but the Committee felt that all such bodies had to look after their personal information. If the FSB was not covered by clause 38 (which exempted those doing functions under clauses 11, 12, 15 and 18), then FSB must follow all the conditions, or apply to the Regulator for an exemption under clause 37.

Mr Jeffery added that the Financial Intelligence Centre (FIC) had raised some concerns very early on, and had ensured that they were discussed with the drafters. The FSB now appeared to be trying to include the FIC in its submissions, but the FIC itself had not indicated any further concerns. If the FSB was still not happy, he suggested that it make further submissions at the NCOP. As to the protocol, he said that he would have expected NT to revert to the Committee if it had concerns, but at the moment NT was not taking up those issues. He stressed that the FSB should not have simply arrived without checking that its representatives were allowed to speak. The Committee had actually decided, earlier in the meeting, that it would not hear them.

Ms Louw said that the Committee had discussed the issues raised. There was a decision that the FSB would not be subject to civil remedies in clause 99, and, although its last submission had been considered, the drafters and Committee did not agree with the points raised.

The Chairperson added that clause 15 was included under clause 38(1). Effectively, this Committee was now giving the FSB a hearing, despite having previously decided not to do so. He urged the FSB to put its house in order, reiterating a point made earlier that it was wasteful expense for the representatives to fly to Cape Town without ascertaining if they would be heard. Mr Momoniat had only sent an SMS this morning, after the meeting had begun.

Ms Manganyi apologised for inconveniencing the Committee. The NT had told the FSB that it should attend the meeting today and raise its concerns. She handed a copy of the e-mail to the Chairperson, who asked that it be distributed to Members. However, he pointed out that Mr Momoniat’s SMS was in conflict with the advice apparently given to the FSB, because the SMS specifically said “should you be open to hearing them” which implied that the Committee must still make a decision on that point.

Ms Manganyi started to outline the issues that the FSB still had.

Several Members raised objections, saying that the Committee had already advised that the door was closed, and it was impossible to expect that any body could make submission after submission. At some point, the Committee had to draw a line and make its decisions. If this Committee had not had the other outstanding matters still to settle, none of which were related to the FSB, the Bill would have been finalised last week.

Ms Tshombe wanted to clarify that the FSB had not acted irresponsibly in booking a flight. She reiterated that she had sent through input to the NT after the meeting on 15 August. She questioned the Committee’s decision on the interpretation of “accountable” and said that the FSB had made other suggestions.

The Chairperson repeated that all the submissions had been considered carefully and diligently. The Committee was not obliged to accept the points, and whilst some elements of the submission were accepted, others were rejected.

Ms Tshombe said she had not known whether the Committee had considered the further proposals.

The Committee noted Ms Tshombe’s reassurances that the FSB had not acted irresponsibly but pointed out that NT had not contacted the Committee.

Mr Jeffery believed that it was irresponsible for the FSB to have caught a flight to Cape Town. The FSB could have visited the PMG website to check what was discussed at the meetings, or spoken to the Committee Secretary. He emphasised again that the Committee had considered the submissions, but was not persuaded by them. The FSB had an exemption already from civil liability. He felt almost that the FSB was now “badgering” the Committee, and that these continuous approaches were inappropriate. The proper legislative process had been followed.

Adoption of Bill and Committee Report
The Chairperson then put the Bill to Members, as amended. Members unanimously voted to adopt the Bill, with no abstentions recorded.

Mr du Preez asked when the second reading might be.

Mr Jeffery said that the provisional date was for 11 September, subject to availability of the Minister.

Members noted that they had received copies of the draft Report.

Ms Smuts noted that she had suggested a few technical corrections, to the document with the number (2), including a reference to the Data Privacy Directive of 1995 and other instruments that had a bearing on South Africa’s international trade status. There was a reference to the constitutional right to privacy, whilst still allowing for the free flow of information, and a grammatical re-wording of paragraph 3.

The Chairperson said that paragraph 3 should retain the reference to the Bill being introduced in 2009, and it was agreed to “re-insert the phrase “which was introduced in 2009”.

Ms Christine Silkstone, Content Advisor, Parliament, questioned whether paragraph 5 should refer to the Chairperson.

Members agreed that there was no need to do so, and that it should simply state “this Bill envisages that there would be a permanent member…”.

Mr du Preez noted technical and spelling corrections. He also suggested that, in paragraph 3, the phrase “personal information” be used, instead of “personal data” to be consistent with the Bill.

Mr Jeffery added that “personal consumer information” should then also be used.

Mr du Preez commented that he personally did not like the acronyms that tended to be used for Bills.

The Chairperson agreed that the suggested acronym of “POPI” was not desirable. He agreed also that the acronym “PAIA” should be removed from the Report, and the full title used.

Mr Jeffery finally noted that the Bill had been re-written, and the Committee Secretary had indicated that the correct heading should be “presents the Bill as follows”.

Members adopted the Report, as amended.

Judges’ salaries
At the beginning of the meeting, the Chairperson noted that the Committee had received several requests from magistrates, not only the Judicial Officers Association of South Africa (JOASA), to address the Committee. There was a further proposal to request the presence of the Independent Commission for the Remuneration of Public Office Bearers (the Commission) as well. The Gauteng High Court had recently delivered a judgment, which would have some bearing on the matter.

Mr Jeffery noted that Judge Seriti had recused himself when dealing with salaries so he would not be able to speak on that issue. He said that the Committee should be cautious in how it attempted to get the information, as it should not be seen to interrogate. He suggested that the representative from the Commission should probably be the Secretary, who was not party to the decision, but who had knowledge of the matters. He suggested, and other Members agreed, that the Committee should hear the magistrates, and postpone its decision on the magistrates’ salaries.

Mr Jeffery noted that no submissions had been made in relation to the judges’ salary increases. The recommendation of the Commission appeared to have been followed. . 

Members agreed to deal with the judges’ salaries separately, and they unanimously agreed to recommend the proposed salaries for approval by the House.

Mr Johan de Lange, Principal State Law Advisor, Department of Justice and Constitutional Development, briefly outlined the procedure that had to be followed for salaries of judges and magistrates, culminating in the proposals being tabled and adopted in Parliament before the President would gazette them.

Mr Jeffery commented that the basic complaint from the magistrates appeared to be lack of consistency, with the point made that public servants had received a higher increase, disadvantaging the magistrates. The same would hold true of judges, councillors and MPs. A further submission was made, in the case involving the Association of Regional Magistrates that magistrates’ salaries failed to keep up with inflation. However, he seemed to recall that they had received significant increases some years back, and asked if Mr de Lange could provide statistics on the increases over the last ten years. Judge Bertelsmann had commented that the failure to consider the personal circumstances may have resulted in magistrates’ salaries falling behind those of “other public office bearers” (presumably he was referring to “public servants”.

Ms Schäfer said that the concerns were not quite as simplistic, as the magistrates were also complaining that the proportion of their pensionable salary was at 63%, not the same 72.3% as the judges. Furthermore, there were concerns that some National Prosecuting Authority (NPA) officials were on higher brackets. She felt that a comparison of the packages was needed, given the move to a single judiciary.

Mr Jeffery summarised that the Committee, before hearing the magistrates’ concerns, should be provided with information on:
 - the packages over the last ten years
- how these compared to the judges’ packages
- the fact that judges did not contribute to a pension fund, so this must be taken into account
- what qualifications were needed for a magistrate, and those for a judge
- how many magistrates had been appointed as judges
- the comparison of NPA salary levels, to ascertain whether a prosecutor would receive less than a district court magistrates, or a regional court prosecutor receive more than a regional court magistrate.

Ms C Pilane-Majake (ANC) supported the proposed meeting with the magistrates and said that although pensions were more applicable to public servants, it was a factor to be considered.

Mr J Sibanyoni (ANC) agreed with these comments, and said it was also necessary to see whether the President was prepared to reconsider the point.

The Chairperson commented that it had been a good move to put the salaries in the hands of the Independent Commission, and said that Members should ask whether these concerns had been aired to the Commission. If so, then the question was whether the Committee could go into the issues again.

Mr Jeffery said that when Judge Moseneke had chaired the Commission, everything had been linked in quite an elaborate structure, to try to ensure consistency, although this too had sparked some complaints, with magistrates complaining that there was a substantial gap between salaries of judges and magistrates. At the same time, there was also quite a large divergence between the MPs, Ministers and President’s salaries. One difference, however, was that politicians could move between backbenches and Cabinet, either through executive decisions, or when elections were lost, and that was part of the democratic system. However, magistrates and judges, once promoted, would not be demoted, so there were not exact parallels. He agreed that the Independent Commission allowed for a dispassionate examination of the structures.

The Chairperson said that whilst the Committee could give the magistrates a chance to air their concerns, it should be stressed that this did not imply that the Committee had the necessary authority to review the matter.

Ms L Adams (COPE) queried if there was then any point in hearing them.

The Chairperson countered that at this stage it was not known whether the issues had been placed before the Commission. The Committee’s powers were limited to recommending approval or rejection to the House. It could recommend, in the event of rejection, that the matter be sent back to the President for reconsideration.

Ms Pilane-Majake thought that the mere fact that the grievances were being set out in this forum might persuade other structures to reconsider, and the Commission should be aware of this approach.

The Chairperson said that the magistrates should know how the system worked. It was on their insistence that the salary determinations were removed from the politicians.

Ms Schäfer pointed out that this Committee might recommend that the salaries for magistrates not be approved.

Mr Jeffery reminded Members that the salaries would become effective only once approved in the NA and NCOP, and gazetted. If this Committee decided not to recommend approval, the magistrates would not get the increase. Another possibility was that the Committee might recommend an interim approval but ask the Commission and President to consider other additional factors. The magistrates could be asked how they suggested that the Committee should deal with the matter.

Mr de Lange confirmed, in answer to a request from the Chairperson, that the date of “2010” was correct. He agreed to work on the information requested. He commented that there was no authority for the President to reveal the reasons for decisions, except perhaps for Regional Court Magistrates. The most recent judgment was binding on the Committee, but there was likely to be an appeal.

The Chairperson said that if this was the case, then perhaps the Committee might need to hold its decision in abeyance, although it was unlikely that this could be settled before next year. The Committee would await the meeting with the magistrates.

Other Committee Business
The Committee agreed that it would meet with the Human Rights Commission on Tuesday, and to meet with Judge Dennis Davis on Wednesday

A Committee Member had written a letter pointing out that the Acting Head of the SIU had re-appointed a senior staff member who had already been in breach of a contract. The Committee agreed that the Acting Head be called in to explain the matter.

The meeting was adjourned.