Protection of Personal Information Bill; Constitution 17th Amendment Bill: briefing; UN Security Council proclamations iro entities involved with terrorist activities

Meeting report

Protection of Personal Information Bill [B9B-09]: Department of Justice and Constitutional Development and SA Law Reform Commission briefing
Ms Ananda Louw, Principal State Law Advisor, South African Law Reform Commission, outlined the context of and gave an overview of the Protection of Personal Information Bill (the Bill). She went through the aims, purposes and goals, the key compliance aspects, the policy commitments, legislation and implementation arrangements for the Bill.

She noted that there were some commonly-held misconceptions about this Bill. Privacy, as defined in the Bill, was not in fact to do with the right to be left alone. It was about the right to retain control over personal information, even after it had been disclosed to others for a lawful purpose. It was inevitable that a certain amount of personal information must be disclosed. However, people had the right to ensure that the information would not be widely dispersed, without lawful reason, and so this Bill essentially looked at how the further spread of the information provided would be regulated.

Mr A Matila (ANC Gauteng) interjected to ask for the distinction between the Protection of Personal Information Bill and the Protection of State Information Bill.

Mr Henk du Preez, State Law Adviser, Department of Justice and Constitutional Development, responded that the Protection of State Information Bill dealt with the regulation and classification of information held by certain organs of the State, and that it was intended to replace the current Protection of Information Act and Minimum Security Standards. It would apply only to government bodies. On the other hand, the Protection of Personal Information Bill applied to both private and public spheres and it merely regulated the manner in which personal information had to be processed by relevant institutions, and did not deal with the classification of State Information.

Ms Louw said that the Protection of State Information Bill was popularly referred to as the “Secrecy Bill”, while the Protection of Personal Information Bill was referred to as the “Privacy Bill”. This gave an idea as to their differing focus.

The Chairperson urged members of the Committee to focus on the Protection of Personal Information Bill, and not to try to confuse the issues. The Protection of State Information Bill was an entirely separate piece of legislation.

Ms Louw continued that the second misconception, held by some government and private entities, was that privacy was an obstacle to be overcome. On the contrary, the Bill was going to enhance the management of the records of companies and entities, which was a good thing for the companies.

The third misconception was that privacy control was going to hinder the flow of information. The Bill and the privacy control were only going to regulate, not necessarily hinder, the flow of the information. 

Ms Louw then took the Committee through the Bill in greater depth. The aims, purposes and objectives of the Bill included practical considerations, constitutional imperatives and international obligations. On a practical level, the South African Law Reform Commission (SALRC) was asked by Parliament to conduct research on the Bill, after the Open Democracy Bill was drafted, which had contained one portion dealing with access to information, and one dealing with protection of information. Although this Bill was not pursued, the access to information part was translated into the Promotion of Access to Information Act (PAIA), but the protection of information part was never well researched and developed until now.

The Protection of Personal Information Bill (the Bill) was aimed at preventing concerns such as identity theft, financial fraud, data gathering for billing purposes, stalking, corporate espionage, phishing, target marketing and reward programmes. Institutions often requested a host of information from individuals, not all of which was necessarily relevant to the contract being entered into, or the checks required.

She reminded Members that the common law had always protected the right to privacy, and this was then taken over into section 14 of the Constitution, which made specific provision that the right to privacy must be protected.

Information privacy was not a domestic policy problem but was a worldwide concern. There were international obligations in relation to information protection, informed by the need to protect human rights, economic interests and security concerns, and which sought to harmonise and standardise the protection of information around the world. There was consensus on the major principles, although the implementation differed from country to country. The African Union was developing a Convention on the protection of personal information. Other African countries such as Senegal, Benin, Morocco, Burkina Faso and Mauritius already had legislation protecting personal information. There were 76 countries in the world that had protection of personal information legislations.

The main benefit of the Bill was that it was going to enhance investment and thereby also the creation of jobs. South Africa, being an English speaking country and with the same time zone as Europe, was a potentially profitable location for many call centres, which basically had to deal with information provided by customers. However, the huge international corporations wanted to ensure that South Africa would be compliant with international obligations, hence the need for the Bill. She indicated that the information lifecycle started with the collection of information, followed by the distribution or archiving of the information which could all lead to the destruction of the information as the end of the lifecycle. The cycle could only end once the information was destroyed. During the entire lifecycle, the information had to be protected and used responsibly.

Ms Louw moved on to describe the key compliance drivers. There had to be a commitment to protecting the personal information provided by individuals, there had to be a good understanding of the Protection of Personal Information legislation and there had to be a good working relationship with the personal information regulatory institutions. These echoed the ideals of policy, legislation and implementation.

She stated that the Bill complied not only with sound business practices, but with common sense, and would enhance the efficiency of companies and government. Other key instruments, with which there must be compliance in protecting personal information also were Codes of Conduct and other sector-specific legislation, which formed part of the overall privacy framework for the country, including PAIA, the Protection of State Information Bill, the National Credit Act, the Consumer Protection Act and the National Health Act.

She emphasised that the Bill was principles-based and not rules based. It made provision for an overarching framework, and it concentrated on outcomes and not processes. It required compliance with the spirit of the law. Best practice controls were complemented by detailed rules, codes of conduct and guidelines. The idea of working with an Information Regulator was very important, as there was the need for an authority to champion the process and the facilitation of informal resolution of disputes and the general enhancement of the processes. She described this as a hybrid piece of legislation, in that it incorporated both human rights perspectives and provided for economic expediencies. Because there was concentration on the spirit of the law, it would be difficult for companies to circumvent it, and it must be interpreted with reference to the international instruments from which it originated.

Mr Du Preez then took the Committee through some critical sections of the Bill. He noted and explained the Preamble. He then pointed to particular definitions that were of importance. He then briefly outlined the twelve chapters of the Bill.

The Chairperson noted that this was merely a preliminary briefing and that the Committee should note any questions and remarks. A further meeting would be held with the Department of Justice and Constitutional Development on the Bill.

Proclamations in respect of entities involved in terrorist and related activities identified by the United Nations Security Council: Department of Police
The delegation from the Department of Police was led by Ms Kobie Strydom from the Legal Services: Crime Operations.

Colonel M Magapi, Legal Services: Crime Operations, South African Police Service, noted that she would give a very brief outline. The presentation was based on proclamations 41 to 47, and these were made in respect of entities whom the UN Security Council had identified as being involved in terrorist and related activities.

Proclamation 41, which was dated 20 July 2011, related to two names that were being de-listed at the request of the Ombudsman. Proclamation 42 of 20 July 2011 was the delisting of two names. Proclamation 43 of 20 July 2011 was amending of the name of one individual. Proclamation 45 of 4 August 2011 related to the delisting of the names of two individuals. On 9 June 2011, the committee had amended the names of nine individuals. On 15 June 2011 two names were added, and on 22 June 2011, the committee delisted two names of individuals and one entity. Proclamation 47 of 25 August 2011 was the most important proclamation, because, prior to this proclamation, individuals and entities concerned with Taliban and Al-Qaeda were under one list, but the United Nations Security Council decided to make two listings, distinguishing between the two organisations.

The South African government had agreed to accept and carry out the decisions of the UN Security Council, in accordance with the UN 1948 Charter.

The Chairperson again asked Members to note their questions and remarks, for a later interaction.

Briefing on Written Submissions to Constitution 17^th Amendment Bill in preparation for debate in the National Council of Provinces (NCOP)
The Under-Secretary, NCOP, indicated the process leading up to the debate on the Constitution 17^th Amendment Bill, which was scheduled to take place on Thursday, 22 November 2012. All the documentation had been tabled and made available to members, and this presentation was intended to give the Select Committee some background and formal details.

She noted that section 74 of the Constitution made provisions for amendments to the Constitution, which required the approval of the Houses of Parliament, the National Assembly (NA) and the National Council of Provinces (NCOP). Some Constitutional amendments did not require the approval of the NCOP. However, in those instances, the NCOP should debate the particulars of the proposed amendment, after examining the submissions that were made from stakeholders and members of the public. The Constitution 17^th Amendment Bill was not referred to the Select Committee and the NCOP was not expected to vote on it, as it had been classified as one in which the NCOP should merely debate the issues. This was further elaborated upon in NCOP Rule 85.

Mr Johan de Lange, Principal State Law Adviser, Department of Justice and Constitutional Development, said that this was not a particularly complex Bill. It was originally published for comment and submitted to the NCOP and the various provincial legislatures in 2010. It was now known as the Constitution 17^th Amendment Bill of 2011. It dealt only with the five areas.

The first amendment was intended to state clearly that the Chief Justice was the head of the Judiciary and the leader of the Judiciary. This was done to fill the discrepancy that existed because the judiciary had to be independent, yet there was no system of judicial management, particularly at the level of the lower courts. Parliament and the Executive could not manage the judiciary, because of the independence requirement, and it was decided that power should vest in the Chief Justice. The amendment simply empowered the Chief Justice to exercise the functions of judicial management.

The second amendment was that the wording was amended to provide for a single High Court of South Africa. This was related to the Superior Courts Bill, which was introduced simultaneously with this amendment.

The third factor was that this amendment would change the jurisdiction of the Constitutional Court, to confirm it as the apex court of the Country. The Constitutional Court’s jurisdiction was currently confined to matters connected to the Constitution. However, the jurisprudence around the Constitutional Court had developed over time, and the interpretation was that since all law in the country was derived from the Constitution, it was difficult to say that a matter was not “connected to” the Constitution. The amendment was therefore now needed to say that the Constitutional Court would, in addition to dealing with matters directly related to the Constitution, also be able to deal with all other matters connected thereto, directly or indirectly. This had resulted in further consequential amendments relating to the Supreme Court of Appeal, and had developed further to include some other amendments in relation to appeals from other courts.

The Bill also made provision for the appointment of an Acting Deputy Chief Justice. The legislation already in place provided that the Deputy Chief Justice would always step in to the shoes of the Chief Justice, if the Chief Justice was absent or incapacitated. It was therefore important to have a provision for the appointment of an Acting Deputy Chief Justice to fill this post temporarily.

One of the amendments that was initially published for comment had been an amendments to section 178 of the Constitution, relating to the term of office of Constitutional Court Judges. However, after comments were received, this particular aspect was dropped, and it did not form part of the Bill which was introduced to Parliament.

Mr de Lange presented to the Committee a summary of all the comments received on the Bill by the Department of Justice and Constitutional Development. This summary also outlined some of the comments that had to do with the Superior Courts. Particulars were submitted to all the provincial legislatures, but only two inputs were received, from the Gauteng and Northern Cape Provincial Legislatures, the latter merely saying that it had no comment. The Gauteng Provincial Legislature had raised a concern and expressed a reservation about extending the scope of the Constitutional Court to be at the apex of all matters, including appellate matters, but had concluded that the Bill was consistent with the Constitution and all international practices. There had been considerable debate and full examination of the issues in the Portfolio Committee on Justice.

Discussions
Mr D Bloem (COPE Free State) asked if the intention of the Department was to bring the Constitutional Court to the same level as other High Courts around the country. He questioned the need for an Acting Deputy Chief Justice, pointing out that there was already a Chief Justice and Deputy Chief Justice.

Mr de Lange replied that the issue of the Constitutional Court being an apex court was the most-debated point. There was no longer seen to be a clear distinction between a “constitutional and “non-constitutional” matter. All matters could potentially end up in the Constitutional Court. The Bill gave the Constitutional Court the discretion not to take all matters that the litigants sought to refer to it, especially if those matters had gone through various other stages of appeal.

Mr de Lange answered the concerns about the appointment of an acting Judge, by pointing out that the Constitution made provision for the appointment of an Acting Judge in the case of a vacancy or absence. However, it did not currently make provision for the appointment of an Acting Chief Justice, or Acting Deputy Chief Justice, if their positions needed to be filled.

Mr Bloem was not satisfied, and said he still did not understand why an Acting Deputy Chief Justice might need to be appointed, and therefore why a Constitutional amendment was needed.

Mr M Makhubela (COPE, Limpopo) also asked what prompted the amendments, and what the problem was with the existing provisions.

Mr de Lange replied that the reason for the amendment was to close the gap created by the current lack of a clear line of judicial authority, starting from the Chief Justice, down to the presiding officers at the lower courts. The second motivation was the rationalisation of the high courts. There was a need to revert to having one single High Court of South Africa, with various divisions. The empowering provision was going to be in the Constitutional amendment, but the operational aspects would appear in the Superior Courts Bill.

Mr D Joseph (DA Western Cape) asked if the Judiciary and the Department of Justice had agreed on these provisions.

Mr de Lange replied that Department of Justice and Constitutional Development had held a colloquium in 2005, where some of the proposals were raised. At the time, they were seen as controversial but currently, there was nothing controversial in the Bill. There would, however, be the usual academic debates on the issues raised. The main aspects of discussion had been the jurisdiction of the courts. The fear that the Parliament and Department might be interfering in the functioning of the courts had been cleared, and the provisions that were seen as offensive were removed from the Bill.

Mr A Matila (ANC, Gauteng) asked if the amendment was going to solve the problems that the lower courts were facing.

Mr de Lange replied that his experience was that problems could rarely be solved through legislation, but the amendments would provide a means to address some of the challenges. He repeated that there was currently a gap with regard to judicial management. There was a link between the authority which was given to the Chief Justice as the head of the judiciary, and the provisions in the Superior Courts Bill. The lines of authority would be followed down, through the various heads of courts. There was great hope that most of the challenges faced by lower courts were going to be solved, but only the creation of a distinct judicial line of authority could handle this.

Mr M Mokgobi (ANC Limpopo) asked for the implications of the debates of the NCOP on the process, and asked whether the NA would decide on the Bill irrespective of the input of the NCOP.

Mr de Lange replied that the debate in the NCOP was a procedural requirement of the Constitution, and should ideally ake place to ensure that all procedural requirements were met.  The NA would invariably take note of all the issues raised in the NCOP debate.

The Chairperson asked what the Bill was going to do to change the status of the Constitutional Court.

Mr de Lange replied that the Bill was actually enhancing the status of the Constitutional Court by making it the highest apex court in the country, and by emphasising the role of the Chief Justice.

The meeting was adjourned.