Repeal of Black Administration Amd Bill; Prevention & Combating of Trafficking in Persons Bill: SAPS, Depts of Justice / Social Development input; Protection of Personal Information Bill; Traditional Courts Bill Committee Report on public hearings

Meeting report

Repeal of Black Administration Act and Amendment of Certain Laws Amendment Bill: briefing
Mr L Landers (ANC), Justice and Constitutional Development Portfolio Committee Chairperson, briefed Members on B40-2012. His Committee decided that it should table a Committee Bill to remove the 'sunset clause' in the Repeal of the Black Administration Act and Amendment of Certain Laws Act (No 28 of 2005). That Act provided that Sections 12 and 20 as well as the Third Schedule of the Black Administration Act 1927 would be repealed on or before 30 December 2012. As Members would be aware, the Traditional Courts Bill was still before the Select Committee. Given that it was the end of November, it would be highly unlikely that the Traditional Courts Bill would be approved by Parliament before 30 December 2012, which then created a problem. The Portfolio Committee therefore thought that the only solution was to table this Committee Bill, which removed the 'sunset clause' and then said that these sections remained in operation until the Traditional Courts Bill became law. In essence that was all that this Bill sought to do.

Repeal of Black Administration Act and Amendment of Certain Laws Amendment Bill: voting
Mr D Bloem, (Free State, COPE) said that this was a straightforward Bill. He supported it and proposed adoption. Mr A Matila (Gauteng, ANC) seconded. Mr L Nzimande (KwaZulu-Natal, ANC) added his support.

The Committee approved the Bill without amendment.

Prevention and Combating of Trafficking in Persons Bill: Departments’ input on implementation
Adv Lawrence Bassett, State Law Adviser, said that the Department had given a briefing on this Bill the previous week, when Ms Engela Steyn, State Law Adviser, had spoken on the Bill itself. He noted that the Department of Social Development and the South African Police Service (SAPS) would provide input on their roles and responsibilities with regard to implementation, after the DOJ&CD had done so:

Department of Justice and Constitutional Development (DoJ&CD) on implementation
Ms Kamogele Lekubu-Wilderson, DOJ&CD Director: Victim Support and Specialist Services, and her colleagues had not prepared a formal presentation. She gave an update on the Department's preparation for implementation of the Bill once promulgated. The various departments that had clearly outlined roles for implementation had set up a national interdepartmental committee on combating trafficking in persons. It was an operational committee that basically looked at all the compliance provisions. The compliance provisions were necessary for the departments concerned to implement the legislation. Member departments of the Cluster had worked together, beginning with the development of the national policy framework, because it was clear that the Department of Justice and Constitutional Development, as the lead Department, would have to coordinate the other departments in the development of the Bill and its implementation when promulgated. The current state of the draft national policy framework was agreement on the outlines and principles, with a view to developing it into a more substantial document to be tabled to the Justice, Crime Prevention, and Security (JCPS) Cluster Directors-General Forum. Non-governmental organisations were among the key role players. Also guidelines on the standard operating procedures had been developed for front-line officers. She emphasised that these guidelines were not technical, but were intended to inform each role-player what it was expected to do. All the responsibilities of the various departments were included in one document. This would enhance coordination, and improve public understanding of the responsibilities of role-players.

From October 2009 the Departments concerned had also worked on the costing of the implementation of Bill. In August 2010 the second draft of the report was ready. There had also been consultation with NGOs concerned with children's interests. The roles, responsibilities, and budget for implementation had been agreed in a high-level workshop.

The Departments concerned had costed only what was new, and not what was included in the ordinary mandates of the departments. Departments were cautioned not to go overboard with their expectations or the projections of their budgets.

The Departments concerned agreed that the Department of Social Development would require additional human resources to ensure that its reporting obligations were met. There was a huge responsibility on that Department to monitor the programmes and the services rendered, and to report on them to the Department of Justice and Constitutional Development and through that Department to Parliament.

Most of the Departments concerned were asking for funds for training, as the Bill had provisions requiring training.

The Department of Justice and Constitutional Development would continue to bear the financial responsibilities of coordination.

She reported on the work of the JCPS Cluster and the Department in preparation for the implementation of the Bill once promulgated.

She noted that the Department of Health and the Department of Home Affairs although invited as part of the delegation were not present. The latter Department's role was of key importance.

Department of Social Development (DSD) on implementation
Ms Tsholokelo Moloi, DSD Director: Victim Empowerment Programme, said that her own particular responsibility was the adult victims of human trafficking. The Department of Social Development had done much to ensure that it was ready to implement the Bill once promulgated. She alluded to the development of a national policy framework for accreditation of services and programmes of organisations which would render services to victims. She said that draft regulations had been developed to regulate services to victims of human trafficking. Currently a national framework for accreditation of services provided by organisations was being developed to ensure that all aspects in the regulations were also in the framework. Norms and standards to govern the services provided in all the facilities had been developed. On 23 November 2012, when the DSD had met with the Department of Justice and Constitutional Development, the latter had raised the same concern as that raised by the Committee: 'why only certain shelters?' When the Department of Social Development had last met with the Portfolio Committee on Justice and Constitutional Development in November 2011 the Department had only 13 shelters. The Portfolio Committee's concern was that the Department should have additional shelters, especially in the rural areas. The Department now had a total of 28 shelters that it had pre-assessed. Once the Bill had been passed and promulgated it would be possible to accredit those organisations that had agreed to provide services to victims of human trafficking. As the shelters were run by NGOs, it was not possible to impose upon them the obligation to accept victims of human trafficking. The costing model, for funding the NGOs which provided services, had also been examined and put in place. All provincial counterparts would have to align their funding model to the costing model that the national Department of Social Development had developed. The national Department had also trained the social workers in the provinces, basically on the principle of how to identify and assess victims of human trafficking. This was especially important as human trafficking was often hidden in nature. There would also be training of master trainers in the provinces. Of concern were the social workers who moved to other provinces or to other programmes. The Department of Social Development acknowledged a shortage of social workers, since it did not have dedicated social workers in the provinces, where there were workers who were responsible for more than three programmes. To enable them to focus on the victims of human trafficking would be a major challenge. The Department had taken note of the concerns raised on the issue of privacy and confidentiality. Social workers were all governed by a code of professional ethics. There was a Clause in the Children's Act that would enable the Department to escort children back to the place from which they had come; however, with adults, it was necessary to have discussions with the Department of International Relations and Cooperation (DIRCO), as currently ambassadors were currently being used as escorts. Also the International Organisation for Migration (IOM) assisted.

Ms Musa Mbege, DSD Chief Director: Children, said that her own particular responsibility was the child victims of human trafficking. The Children's Act already included provisions on trafficking, but once this Bill was enacted and promulgated these would be subsumed by the Bill's provisions. Clause 33 allowed the Director-General: Social Development to authorise, at State expense, an adult to escort a child victim from the place the child was found to the place from where the child was trafficked, if it was considered in the best interest of the child. There was already an international social services unit that dealt with foreign minors found in South Africa or who were found outside the country and were to be brought back to South Africa. The unit's members were members of the Bureau of International Social Services located in Geneva. The Department worked according to the United Nations (UN) protocol on preventing trafficking in persons. Thus the Department already had, in cooperation with DIRCO, processes in place on the repatriation of children. Secondly, regarding the facilities for children, the Department had temporary safe care, children's homes, and shelters. It was transforming its child and youth care centres in accordance with the Children's Act. Capacity building and strengthening skills was, in consequence, an issue. Trafficking was still somewhat a 'foreign' issue to staff at community level. The Department had developed guidelines on the expectations of children. These guidelines included trafficking. Some of the Department's staff had special skills in handing children who were the victims of trafficking. Security measures in facilities were also to be strengthened to protect the children in the facilities.

The Department had in its facilities child and youth care workers who were trained in the day to day care of children and youth. However, they needed specific extra skills in dealing with children and youth who were the victims of trafficking. The Department had also been training auxiliary social workers to assist in the statutory care of children.

South African Police Service (SAPS) on implementation
Major-General Tertius Geldenhuys, SAPS Head: Governance Policy and Legislative Management, said that trafficking in persons was of very great concern to the SAPS. Indeed the SAPS played a central role in the combating of human trafficking, and the SAPS regarded this Bill as an extremely important piece of legislation, for which it had been part of the process of development, including the deliberations in the Portfolio Committee on Justice and Constitutional Development, as a result of which certain minor changes were made. Thus the Bill as it now was before the Committee enjoyed the fullest support of the SAPS, which regarded human trafficking as an international scourge. It was essential to find solutions to the problem. The SAPS had had extensive consultations with other departments on what to do with human trafficking victims once identified as such. The SAPS was in the process of finalising a national instruction in terms of the South African Police Service Act. This national instruction would be binding on all members of the SAPS. Following the disbanding of the Scorpions, the Directorate of Priority Crime Investigation (DPCI), otherwise known as the Hawks, was formed as part of the SAPS. One of the functions of the Hawks was to deal with organised crime, which included human trafficking. The SAPS experience with existing law in dealing with the Children's Act and with sexual offences legislation was that it had had great success, in particular, the Hawks, in dealing with trafficking for sexual purposes. The SAPS had also consulted with the Department of Social Development on the establishment of centres where those victims could be kept. There was in the SAPS a witness protection programme, so that it was possible, in collaboration with the Department of Justice and Constitutional Development, to have victims placed in a witness protection programme, as the perpetrators were unscrupulous and would stop at nothing either to reclaim their victims or harm them so that they could not testify against the perpetrators. The Bill required the SAPS to develop a national instruction, and this was exactly what the SAPS was doing currently, and hoped to bring to completion in a month's time. However, it could not finalise the instruction until such time as Parliament had approved the Bill. The national instruction would be binding on all members of the SAPS, and all members would have to be trained in dealing with victims of human trafficking. This was a long process, but already basic training modules were being adapted. Moreover, the SAPS and the Hawks had developed in-service training programmes. However, SAPS was at a disadvantage in that there was no statutory provision making human trafficking a crime. There were of course common law provisions or crimes that were often committed in the process of trafficking a person, like kidnapping, for which charges could be brought, but SAPS supported proper legislation against human trafficking and to enable SAPS to train its members to deal with this phenomenon. Although here had been great success already, the road ahead was still long. South Africa had become known as one of the preferred destinations where people who were trafficked were brought. Thus SAPS had much work to do. The Committee's support would obviously help, as once the legislation became law, SAPS would have the necessary teeth to deal with those involved in human trafficking.

Briefings concluded
Ms Lekubu-Wilderson thanked her colleagues. She cautioned, however, that the distance between SAPS stations and many of the shelters would be great, as much as 900 kilometres. It had been agreed that the responsibility for transport would rest primarily with SAPS, because the victim would have to be in protective custody from the time s/he was reported until the time s/he was in the place of safety.

Discussion
Mr Bloem asked where were the Departments of Home Affairs and Health.

The Chairperson explained that the National Prosecuting Authority, the Department of Health, and the Department of Home Affairs had apologised and requested an opportunity to brief the Committee in the New Year.

Mr M Makhubela (Limpopo, COPE) asked if the national instruction covered courses those in the provinces.

Mr Makhubela asked about the new curriculum for training.

Mr Makhubela asked what happened to human trafficking victims who absconded from places of safety because some of them had 'tasted the advantages' of prostitution in other countries.

Mr Makhubela asked what prompted the decision to make a distinction between adult and child victims.

Mr Matila said that there was a serious problem of lack of social workers, to the extent that the Department of Social Development could not discharge its duties. If the legislation was passed now, how long did the Department expect that it would take to train enough social workers?

Mr Matila knew that 60 to 70% of what NGOs obtained from the state was spent on salaries. Moreover, for some of these organisations it was a profit-making business. As someone who came from the Civic Movement, he knew exactly what was happening. The state had complained of problems with outsourcing specific functions. Public service officials resigned and then took up profitable work in organisations to which such work was outsourced. Many managers had resigned and become consultants. This applied even in the SAPS, which resorted to private security companies to secure its police stations. Was the Department of Social Development's reliance on NGOs not taking us to the same situation? He was happy with SAPS submission. The legislation looked good and he agreed with it, but he feared creating more problems, as there were two private prisons that this Committee could not even access.

Mr Bloem thought that Mr Matila had covered him fully. He was 'spot on'. However, it was not only officials, but also executives who were busy with outsourcing.

Mr Bloem asked SAPS how big and serious this problem was.

Mr Bloem thought that SAPS was not ready.

Mr Bloem said that the Department of Social Security must carefully examine outsourcing. It was wrong to create jobs, especially for the people in high positions.

Mr D Joseph (Western Cape, DA) was sure that there was a policy at the Department of Social Development which indicated how money should be spent by NGOs on salaries or on service delivery.

Mr Joseph asked what criteria were used for accreditation of NGOs and to decide on allocating them to provinces.

Mr Joseph asked where SAPS would have to drive implementation.

Mr Joseph asked what criteria were used for accreditation of the services that needed to be provided.

Mr Joseph asked if there was an indication of where the focus points in provinces would be.

Mr Joseph asked if how the Department would also make use of auxiliary social workers, and to what extent they would have to be qualified.

Mr Joseph asked how the Department would transport the human trafficking victims – in a normal car or in a special vehicle. Moreover, were the victims given rights, especially the children?

Mr V Manzini (Mpumalanga, DA) asked what SAPS was doing at present to combat human trafficking.

Mr J Gunda (Northern Cape, ID) asked if the Department of Social Development could give the Committee figures by province on the shortage of social workers.

The Chairperson asked for responses.

Responses
Ms Lekubu-Wilderson said that Major-General Liziwe Ntshinga (Northern Cape Provincial Commissioner of Directorate for Priority Crime Investigation), the champion of the processes for the implementation of the Bill worked with nine coordinators in the provinces and ensured that there was a role of oversight played by the higher echelons of SAPS.

Major-General Geldenhuys said that he had forgotten to mention the above Major-General who had been appointed for this specific purpose. This appointment gave an indication of how importantly SAPS regarded this legislation. However, there were obvious 'hiccups'. However, SAPS, in consultation with others in the Cluster, was sorting out those difficulties. Also, trafficking in persons was not a new phenomenon, but was new in South Africa. Therefore SAPS was learning how to deal with it by experience. It was developing training materials and was now at an advanced stage. The Hawks were already trained. The Department of Home Affairs was a key role player. Great success had been achieved already. He responded to the question on where in South Africa the problem was the biggest. The main focus points of human traffickers, especially those who trafficked persons for sexual purposes, at the moment, were the bigger metros, like, for instance, Durban, Gauteng, Johannesburg, Pretoria, and Cape Town. Currently SAPS was learning in these areas the fastest on how to deal with the problem. The SAPS also had the benefit of talking to police services across the world, and they also informed SAPS of the difficulties that they experienced, and what police officers should know when they dealt with victims of human trafficking. South Africa was such a big country that it was not easy to answer the question on transport. There would be a considerable cost in moving victims to the nearest shelter accredited by the Department of Social Development. Therefore the SAPS would make use of so-called safety havens, where it could keep victims until it was possible to move them to accredited organisations that provided shelters. This was an ongoing process. There were some instances where the nearest shelter was 900 kilometres away. However, fortunately that was in a province where SAPS experienced fewer instances of human trafficking than in the other provinces. So SAPS' focus was on the main centres, and it would continue its discussions with the Department of Social Development to find safety havens where victims could be kept until they could be transferred to accredited places. It was not possible to transport every victim of human trafficking in an unmarked police vehicle. However, SAPS was increasing the number of unmarked police vehicles that could be used for transporting child victims. However, it would be necessary to strike a balance between where the need was greatest as far as policing was concerned and legislation on human trafficking.

Major-General Ntshinga added that SAPS had given its members training on human trafficking since 2006 with the assistance of the IOM. There was also a multidisciplinary provincial reaction task team. There were also provincial coordinators. SAPS had made much progress in preparing, but was waiting for promulgation of the Act. It was not yet able to give statistics on human trafficking because it was dealing with common law legislation. SAPS had achieved much. She gave the example of a recent case of racketeering in Durban.

Ms Moloi replied that human trafficking was a hidden phenomenon. As far back as 2008 the Department of Social Development had trained its social workers on human trafficking as it wanted to be proactive for the 2010 World Cup. It looked for the elements of recruitment, transportation, and exploitation when it identified and assessed victims of human trafficking. There were victims who absconded, especially if they discovered that the syndicates were looking for them. However, there had never been any large number of absconders from the Department's facilities, as there were so far not a large number of victims in its facilities. Those in the Department's facilities stayed for a very short time, because the Department engaged the IOM who very quickly arranged for the victim to be transported back home. These were the cases that the Department dealt with mostly in its facilities. Only a few had to stay a long time in order to appear in court. The few statistics collected showed that the hubs of human trafficking in South Africa were in KwaZulu-Natal, Gauteng, and the Western Cape. The other provinces did not have a large number of cases reported by the Department's shelters. With adults, the Department was really having a challenge, because it lacked specific legislation to deal with victims of human trafficking. It used other legislation like the Sexual Offences Act. However, the Children's Act had a provision against trafficking of children. Hence the Department appealed for the Committee's support in agreeing to the Bill. The Department had a policy on financial awards. It had been revised for the Department to standardise funding for NGOs. Hence the Department had the previous year produced a costing model. Now it was in a position to develop a funding model to ensure that all NGOs providing services on behalf of Government were receiving a uniform funding. In terms of research on accreditation, the Department had developed its national policy framework on accreditation of organisations providing services to victims of human trafficking. This was based on research, because the Department was working closely with the IOM. This was a draft document on which there would be consultation in the last quarter of the financial year to ensure that all the information covered in terms of what the Bill expected the Department to do was covered in that accreditation system. So the Department would ensure that participating stakeholder was engaged to refine the document. As to the issue of using auxiliary social workers or professional social workers, counselling had to be done by professional social workers. The Department could not expose victims to be counselled by non-professionals. However, the Department did use auxiliary social workers to ensure that victims were given the support that they needed, but the ultimate responsibility was with the professional social worker involved. The Department had three models in terms of facilities. There was a temporary safe care model (near to each police station), an accredited organisation model, and another accredited organisation model that needed to be put in place. She gave further details.

Ms Mbege explained that the Department was not aware of any problem with absconding of children from its facilities. Absconding, when it occurred, was a problem confined to boys. The Department's facilities did have security. However, last year in Mpumalanga, there was a case in which the perpetrators had come to look for a child victim. It was a reality that the social workers could not manage. The Department had a recruitment and retention strategy, and had devised a special scheme to train social workers, as it was a scarce skill. This was happening in all the provinces. The Department received a budget from National Treasury for training social workers. The Department could provide, at the next meeting of the Committee in January 2013, figures on the shortage of social workers. Alternatively it could provide them in writing. The Department had produced a safety and risk assessment tool for all the children who had been abused. It had already been piloted in Gauteng, and would be piloted in another province and then rolled-out. It was also finalising an assessment tool for children already in the Department's facilities so that it developed an appropriate plan for that child to be reunited with his or her family or reintegrated into his or her community and to obtain the appropriate services while in the facility. The Department was shifting from funding posts to funding programmes. The Department had 14 599 children's homes and 1 735 temporary places of safe care for children. There were provinces like Limpopo where the facilities were few and far apart. That issue was being addressed with the province. Northern Cape was also affected. With the advantage of the Children's Act, the Department had already developed norms and standards for its facilities that had to be registered for taking care of human trafficking child victims. It had done an audit of all its registered and unregistered facilities. It had asked provinces to provide profiles of services provided in the province. It was also developing a mapping system so that it knew where those services were in the provinces and could identify gaps.

Ms Lekubu-Wilderson clarified some of the issues. The JCPS Cluster realised that the needs of vulnerable victims were different and therefore realised the need to put in support services to address those specific needs to provide victim empowerment. The Department was well aware of the opportunism that might arise through partnerships with NGOs. However, these NGOs played a critical role as support service providers in partnership with Government, in so far as they were uniquely placed to offer some of the required services. Government did not really provide shelters except where specifically required to do so by legislation. She assured Members that the large majority of NGOs involved were credible organisations which really had the interests of community members at heart. In view of the restrictions on Government funding, the use of NGOS helped the Department to save on its budget.

Mr Lawrence Bassett, State Law Adviser, explained Clause 24 had been crafted to address some of the issues raised by Members. It required the Minister of Social Development to regulate an accreditation system. Moreover, the Minister of Social Development must also make regulations regarding the circumstances in which accredited organisations qualified for financial assistance within available resources. The accreditation system must contain criteria for the evaluation of programmes to ensure that they complied with norms and standards, mechanisms to monitor the programmes, and measures for removal of organisations from the system where appropriate. The Minister of Social Development was required to have a quality assurance process to monitor how these accredited organisations went about doing their work. These were the legislative provisions about which Ms Lekubu-Wilderson had been talking.

Follow-up questions and responses
Mr Makhubela compared the huge task facing the SAPS with the task that it faced with the Firearms Act. For this later Act there was no budget, until a special budget was introduced. He suggested a special budget to implement this Bill when enacted.

Major-General Geldenhuys replied to Mr Makhubela that SAPS did not envisage a separate budget for implementation of the Bill. However, it envisaged that its existing budget, especially that for supply chain management (SCM), would deal with the SCM management aspect. This would include the procurement of motor vehicles in order to transport the people and of course the salaries of members of SAPS who would be involved in dealing with human trafficking. The most important aspect was the training. He hastened to say that he had listened to Ms Lekubu-Wilderson, who had said that the Department of Justice and Constitutional Development had a special budget, so he presumed that the SAPS would receive some money from the Department of Justice and Constitutional Development in order to present the training.

Mr Matila understood that the Department of Justice and Constitutional Development had received a special budget. However, the Committee had received reports that the Department had insufficient money even to administer its existing programmes. He was not sure from where the necessary money would come. Moreover, the Department could not fill certain vacancies through insufficient funds.

Ms Lekubu-Wilderson clarified her statement. She had meant to say that her Department for implementing the provisions within the Act that required coordinated implementation of the legislation. For example, the Bill required that 'they', as the role-players, must develop a national policy framework. So therefore, her Department, as the lead department, had to develop and coordinate that national policy framework, and her Department would carry that financial responsibility for developing and making sure that it had consultative processes to do so. Secondly, it had to ensure that the guidelines that it had developed for services to victims could be administered within the Department's existing budget. This did not mean that the Department had an excess of money. She explained that her Department had to implement the Sexual Offences Act, the Trafficking Act, the HIV Programme, the Victims' Charter, and the Victim Empowerment Programmes. There was a shared cost involved, that the Department was trying to deal with while extending itself. National Treasury had provided a certain budget for measures to deal with human trafficking. The Department endeavoured to find creative ways of stretching its resources in order to fulfill its responsibilities.

Mr Makhubela said that there was a serious problem with the shelters. There was little point in agreeing to the Bill if the Department did not have sufficient resources.

Ms Lekubu-Wilderson clarified that because there was no legislation the Department was using its basic budget. The draft costing bill had highlighted areas. For example, the Department would be able to present a Cluster budget that described how much the Bill would cost to administer, once enacted. Over a period of three years, the Department would require enough budget for training. Once the Bill had been passed and promulgated, the Department would be able to resubmit the Cluster budget because for the past three years the Department was not given the budget from National Treasury for this particular legislation because it had not yet become law. However, the Department was very careful to detect areas where there would be pressure points, rather than 'budget for budget's sake'.

Mr Matila said that provinces always came to the Committee to say that national departments came with unfunded mandates. He hoped that, in terms of this legislation, besides the provinces, the other departments were not given an unfunded mandate. The Department of Social Development as it stood today had a problem around funding. This legislation would put extra pressure on the Department. He was therefore not sure what the Department was trying to explain to the Committee. He also did not want to see added pressure on other levels of Government, not only the provinces, but local government as well.
 
The Committee’s Content Adviser said that the Department itself must clear up a couple of issues before the deliberations. It must clarify the definitions around vulnerability. Perhaps the word 'fear' should be included. When people were recruited for human trafficking, fear played a big role, but there was no provision for it in the Bill. Fear was the trading commodity of all organised criminal syndicates, when they wanted to act in one way or another. Secondly, perhaps the Department should give clarity on Chapter 2, Clause 4, the offences, penalties and extra-territorial jurisdiction around this particular Bill. Also the Department should give clarity on Clause 8. Perhaps these provisions had too wide-ranging implications for publishers and the electronic media. There could perhaps be conflict with other laws. Clause 9 could be interpreted too widely. It could include the commercial carriers. He did not know why that provision had not been examined. Mr Joseph had raised the constitutionality of minimum sentences. The sentences were quite strong and firm. It had to be asked if some of the penalties were appropriate under the circumstances. Clause 15 was very interesting. It had to be asked what the implications were if a victim was unwilling to cooperate with law enforcement officials.

Mr Bassett asked that the Department respond fully in due course when it returned to the Committee.

The Chairperson agreed.

Ms Nozizwe Madlala-Routledge, Executive Director: Embrace Dignity, said that her organisation represented women's rights in civil society. Her organisation had made a submission to the Portfolio Committee. She asked when the Bill was likely to become law. She acknowledged transitional measures in the Sexual Offences Act as amended in 2007, which contributed to success so far in combating human trafficking. It was important for SAPS to champion the comprehensive definition of human trafficking, as it not only happened across borders but within countries. She was pleased that there was an awareness of the problem of prostitution. While some women had indicated that this was a voluntary activity, many found that they had no choice in the matter, and were forced into prostitution by poverty and the fact that they were women. She wanted the Committee to apply its mind to the definition, as it was very comprehensive, as outlined by the Palermo Protocol. It was a multidimensional problem and required a multidimensional response. She acknowledged what the Department of Social Development had said about places of safety, and the distances that victims would need to travel while being transported for their own safety. She called for many more such places of safety, as there were many informal brothels in which girls were kept in bondage. South Africa could do much more to protect women and girls. She was especially pleased that this Committee was sitting during the 16 days of activism to combat violence against women and girls. She was worried that the national instruction was still being prepared. Since the Sexual Offences Act had been amended in 2007, she would have expected the national instruction to be issued already.

The Chairperson hoped that the delegates had noted the issues that Ms Madlala had raised. He hoped that she would have the opportunity to attend the meeting early next year when the Departments of Health and Home Affairs, and the National Prosecuting Authority would be present, and that her issues would receive responses from them.

Protection of Personal Information Bill: National Treasury briefing
Background on financial sector regulatory reforms
Mr Ismail Momoniat, National Treasury Deputy Director-General (DDG): Tax and Financial Sector Policy, strongly supported the Bill. However, he wanted to bring to the Committee's attention the Bill's possible unintended impacts on the financial regulators. He explained that after the 2008 global financial crisis, the Group of 20 (G20) countries were taking tough steps to regulate and supervise the financial sector more obtrusively. The Minister of Finance had announced the shift to Twin Peaks regulation in the 2011 budget. This was adopted by Cabinet in July 2011. Twin Peaks referred to having two separate regulators – one in the South African Reserve Bank (SARB) to deal with the financial soundness of institutions (prudential supervision) and a second regulator to deal with market conduct and consumer protection. The latter would replace the existing Financial Services Board (FSB). The SARB would also be given a mandate to oversee the financial stability of the entire system (macroprudential supervision). The market conduct approach was already implemented through the Treat Customers Fairly Campaign, action on unsecured credit (including garnishee orders), fees in the financial sector, and retirement reform. (See slide 3)

Key challenges identified after the global financial crisis
The financial sector was globally integrated but regulated nationally. There was a need for international coordination between national regulators. Sharing of information between different country regulators was critical to ensure effective supervision over global financial companies. The probability of coordination also affected regulators within the country, who also did not share information, for example the Bank of England and the Financial Services Authority (FSA) in the United Kingdom. It had to be asked how the different regulators were to be coordinated. There was the additional challenge that regulators in other countries where South African financial institutions operated also faced capacity challenges. (See slide 4).

History of engagements on the Bill
The Bill was complex and affected most regulators. National Treasury had had engagements with the Department of Justice and Constitutional Development, and with the South African Law Reform Commission. It had made submissions to the Justice and Constitutional Development Portfolio Committee. Many concerns raised in the submissions were addressed through the amendments proposed by the Department of Justice and Constitutional Development and recommended by the Portfolio Committee. National Treasury had concerns outstanding with Clauses 38 and 72, and had requested to make a submission to the Security and Constitutional Development Select Committee. It had further engagements with the Department of Justice and Constitutional Development.

The FSB as regulator
In the public interest the FSB regulated the following financial industries: insurance industry, retirement funds, financial markets (Johannesburg Stock Exchange and STRATE), collective investments, and financial advisory and intermediary services.

Clause 38(2) current wording
Ms Jeannine Bednar-Giyose, National Treasury Director: Financial Sector Regulation and Legislation explained. (See slide 8).

Clause 38(2) proposed amendment
National Treasury's proposal was that the provision be amended to read as follows:
(2) 'relevant function' for purposes of subsection (1) means any function – (a) of a public body; or (b) conferred on any person in terms of the law, which is performed with the view to - (I) protecting members of the public against – (aa) financial loss due to dishonesty, malpractice or other seriously improper conduct by, or the unfitness or incompetence of, persons concerned in the provision of banking, insurance, investment or other financial services or in the management of bodies corporate; or (bb) dishonesty, malpractice or other seriously improper conduct by, or the unfitness or incompetence of, persons authorised to carry on any profession or other activity; or (ii) protecting the integrity, stability or soundness of financial institutions or markets (Slide 9).

Mr Momoniat commented that this was not the only way to solve National Treasury's concern, but was proposed as a possible solution. The Committee had every right to amend the Clause in the way in which it saw fit.

Clause 38(2) rationale for proposed amendment
Ms Bednar-Giyose said that the FSB and other financial sector regulators did not process information only to protect members of the public but also as a regulator with other regulators. The FSB processed information also in relation to fulfilling the other aspects of its mandate, as already described. It was therefore proposed to include wording that would appropriately encompass the purposes for which the financial sector regulators appropriately shared information, in fulfillment of their functions and mandate.

Clause 72(3)(a) current wording
(3)(a) 'accountable' meant that where the recipient of the information, who is a party to a non-binding memorandum of understanding, processes the personal information of a data subject in a manner that would have constituted an interference with the privacy of the data subject in terms of this Act had the information been processed in the Republic, the processing will be regarded as an interference with the privacy of the data subject in terms of this Act and will be regarded as having been processed by the responsible party.

Mr Momoniat commented that this was very critical. Regulators in South Africa were exchanging information with regulators in the UK because South African banks and insurance companies were present there. Often they were 'primary listed' there as in the case of Barclays as a controlling company or in the case of Old Mutual. In those cases often it was binding because the regulatory agencies were quite developed. However, when one considered South African financial institutions that were present elsewhere in Africa often because of capacity issues the MoUs might not be binding in terms of their legislation. Yet the regulators had to share information, which might concern particular clients who could pose risk. As long as one was satisfied that there were minimum standards this exchange of information should definitely be allowed otherwise these regulators would not be able to function as such.
 
Clause 72(3)(a) proposed amendment
Ms Bednar-Giyose explained in extended detail (see slide 12).

Mr Momoniat commented that this was one way to resolve this issue.

Adv Nonku Tshombe, Financial Services Board Head of Department (HOD): Legal, said that currently the provisions did allow for the exchange of information between a South African regulator like the FSB and a foreign regulator. However, the import of the definition of what constituted accountability by the South African regulator (which accountability, by the way, was accepted; it was clear that the South African regulator who shared information with a foreign regulator must remain accountable; that much was accepted; but the import of the definition of what that accountability meant was that, when the foreign regulator processed information in a manner that was in breach of the statutory provisions that protected the privacy of the data subject; that action by the foreign regulator was deemed to have happened within the Republic and it was deemed to have been done by the responsible regulator who had shared information with the foreign regulator. This would cause serious restrictions and impediments to the ability of the South African regulator to share information with foreign regulators in breach of all the bilateral agreements that were entered into by South Africa and therefore by the FSB and any other regulator with other foreign regulators for purposes of sharing information in the financial services space.

Adv Tshombe said the proposed wording was to say that there should be an attempt to find accountability and not to cause some form of liability on the part of the South African regulator. Within the Bill, however, there was a provision which provided that when the South African regulator was faced with a court action as having breached the provisions, the South African regulator could raise a defence that the regulator had shared the information with a foreign regulator but this provision did not fully address the difficulty, as the financial services sector was a highly litigious environment. There was always the danger that the South African regulator would be taken to court on an ongoing basis; there would be this defence, but this defence was not an exoneration. It was just a defence that might or might not be accepted by whatever the judicial authority was at that point in time, whether the judicial authority was the information regulator or a court of law. The reality was that this would hamstring the process.

Ms Annah Manganyi, Financial Services Board Senior Manager: International and Local Affairs Unit, explained why Clause 38, as it was, would impact on the regulator. One of the Bill's provisions was that before a responsible party such as a regulator processed information, the regulator would, for example, seek consent from the data subject, and, as Adv Tshombe had said, the financial services sector was highly litigious, it might be necessary to exchange information to establish whether a company complied with legislation in a foreign country. The FSB basically would not be able to comply with that provision, as it would be difficult for the FSB to seek or obtain consent from a data subject which the FSB wanted to investigate or to penalise. Hence the FSB maintained that Clause 38 was too restrictive. Some of the functions which the FSB performed as a regulator were not only to protect the members of the public. It had other functions, for example, to protect the financial system and the soundness of the institutions that it regulated. Clause 38 as it was provided that the FSB might be exempt from seeking consent from a data subject only in order for the FSB to protect members of the public. So if the information was required for the FSB's other purposes, it would not be able to process information. Hence the FSB wanted to expand the provisions of Clause 38 to include exemption from seeking consent from a data subject in order to protect financial stability and the financial soundness of the institutions that it regulated.

Mr Momoniat concluded by saying that National Treasury continued to engage with colleagues from the Department of Justice and Constitutional Development.

Discussion
Mr Makhubela asked what existing capacity there was to alleviate the problem of sharing information. He asked for clarity on the FSB's mandate from the SARB to oversee the financial stability of the whole financial system.

Mr Bloem asked when the Committee was expected to complete processing the Bill. He observed many amendments from the National Assembly.

The Chairperson replied that it would be completed in the first quarter of next year.

Mr Joseph asked how this Bill would interact with the Protection of State Information Bill.

Mr Matila welcomed the presentation. South African companies had been highly vulnerable because nothing protected them. He pointed out that the Protection of State Information Bill dealt only with information possessed by the state. The Protection of Personal Information Bill sought to make sure that other information, like a person's banking details, which was outside the state, was protected. He asked for clarity. Many South Africans had been telephoned by companies abroad offering the chance to win money, on certain conditions, because this protection was not there. If the Bill would stop such abuses, he would welcome it.

Mr Manzini asked what happened, if somebody who claimed to work for the First National Bank (FNB), telephoned him on the pretence of selling a product, and at the same time to check his particulars, for example, people from RICA, saying that he had won something, and when he checked; he asked if it was possible for someone from RICA to telephone him to say that he had won a large sum of money.

Responses
Mr Momoniat understood that such institutions, such as cell phone companies and financial institutions, held personal data. This Bill sought to regulate how they could use it, and whether they could sell it or give it to a third party to send products to the data subject, or allow a third party to telephone the data subject. It was a very important objective, as this area had not been regulated and one received such telephone calls all the time.

Some of these schemes were scams, and were a crime problem. He did not think that this Bill would solve all problems, but at least it would make it more difficult to obtain databases.

The exemptions that National Treasury and the FSB sought were to allow the financial regulators to continue to exchange information, both within the country and with foreign regulators. He explained that it was important to be able to exchange information with foreign regulators.

In the emerging economies the regulators might not be well capacitated. So if one gave them information one had to be careful to ensure some minimum standards so that they would not break the law. Moreover, the aim was to ensure the provision of information on a good faith basis. When regulators exchanged information in good faith they were protected from certain forms of liability. Clause 72 provided that before exchanging information, one tried to make sure that the other regulator stuck to certain standards. If the other regulator broke faith, then one limit the exchange of information the next time. However, as regulators regulated their own sector, there was hardly ever a problem. There were many checks and balances, but it was necessary to legislate for those who abused the system.

As this was information in the hands of private parties, he did not imagine a conflict between the Protection of Personal Information Bill and the Protection of State Information Bill.

It was in the interests of South African regulators to try to develop the capacity of the foreign regulators with whom they exchanged information. To the extent that there were weaknesses, South African regulators tended to sign a memorandum of understanding with foreign regulators to define how they would exchange information and deal with particular weaknesses or risks.

He explained how the SARB played a macro-prudential role. It was a very new area that had developed especially after 2008.

Department of Justice and Constitutional Development input
Mr Henk du Preez, State Law Adviser, said that the main outstanding question at this stage was the difference between the Protection of Personal Information Bill and the Protection of State Information Bill. The ambit of the latter was limited to records held by public or governmental bodies. This went to the heart of classification of information or records held by the state, in other words if a document in the possession of a governmental body was of such importance that it might harm South Africa internationally if the information was released then such a document would, in all likelihood, be classified as secret. The classification of a document had certain information as to who had access to the document and who might provide that information to someone else. The Protection of Personal Information Bill was totally different. It applied not only to public bodies but also to private bodies. It introduced, in essence, eight conditions for the lawful processing of personal information. Those conditions were universally recognised as principles of good practice of how public and private bodies must in general collect, process and look after, and eventually destroy, the personal information in their possession. This did not have anything to do with the classification of information. The Protection of State Information Bill did provide for the classification of certain personal information that a public body had in its possession, if the disclosure thereof might be harmful to the life of the person concerned.

The Chairperson noted the presentation from the National Treasury and the Committee would consider it during its subsequent deliberations.

Committee Report on Proclamations made ito Section 25 of Protection of Constitutional Democracy Against Terrorist and Related Activities Act (No 33 of 2004)
Mr Gunda proposed adoption. Mr Bloem seconded. The Committee thus adopted the report.

Committee Report 28/11/12: Suspension from Office & withholding of remuneration: Magistrate M Tyulu
Mr Matila proposed adoption. Mr Bloem seconded. The Committee thus adopted the report.

Committee Report 28/11/12: Suspension from Office: Magistrate L Myles
Mr Matila moved for adoption. Mr Bloem said that there was a question of salary.

The Chairperson said that the Department had recommended Magistrate L Myles' removal from office on grounds of health.

Mr Joseph said that it was unconstitutional to penalise someone because of ill-health. Her removal would have to be on the grounds of incapacity due to ill-health or incapacity due to poor performance.

The Chairperson agreed.

Mr Joseph was now satisfied.

The Chairperson said that the Committee would still expect Mr Gunda, during the recess, to meet Magistrate Myles and report to the Committee next term.

Mr Nzimande thought that the Committee's decision was inappropriate as it might raise the expectations of the Magistrate. Mr Gunda was not capacitated to assess Magistrate Myles' condition of ill-health. He wanted his objection put on record.

Mr Bloem asked what Mr Gunda must do if the Committee adopted this report.

Mr Makhubela agreed with Mr Bloem.

Mr Matila was worried that Magistrate Myles' position could not be filled, and the court could not operate because of this specific position. He acknowledged that it was not a good thing to take away a person's salary, but that person also had a responsibility to fulfill his or her contract. There was not even a doctor's certificate to substantiate Magistrate Myles' illness. What could the Committee do further?

Mr Bloem proposed that the Committee set up a small sub-committee to see Magistrate Myles and report by the end of January. This was a case of ill-health, and he wanted to hear Magistrate Myles' side of the story.

Mr Manzini said that the problem was Magistrate Myles' failure to provide supporting documents. This warranted a disciplinary hearing. He agreed with Mr Bloem.

Mr Nzimande said that the context of the Magistrates Commission, an independent body charged with the responsibility, had applied its mind and had applied its due process, and was reporting its findings to the Committee for concurrence and endorsement. There had been a similar problem of incapacity with a magistrate in Mitchell's Plain, and the Committee had agreed with the Magistrates Commission's findings, without setting up a sub-committee or a task team to investigate further. The Committee could not be inconsistent. Nor must it set a bad precedent. It must also respect its colleagues at the Magistrates Commission.

Mr Matila, on the basis of Mr Nzimande's submission, proposed adoption of the report with Mr Joseph's amendment.

The Committee thus adopted the report.

Committee Report 28/11/12: Suspension from Office: Magistrate N E Ndamase
Mr Matila proposed adoption. Mr Makhubela seconded. The Committee thus adopted the report.

Committee Report on Traditional Courts Bill public hearings 18-21 September 2012
The Committee Secretary said that the report before the Committee was to report on matters with which the Committee had dealt. It was not a Committee recommendation on the Traditional Courts Bill. It was just to report on what had happened in terms of the public hearings process. The report was structured according to themes and then recommendations on the various submissions that dealt with that theme. The recommendations at the end were specific recommendations proposed in those submissions. The report included proposals from the Department of Women, Children, and People with Disabilities and from the Department of Justice and Constitutional Development. In line with the Committee's previous decision to send documents back to the provinces, that would be the Committee's own report regarding what the Department of Justice and Constitutional Development had proposed, so that the provinces would be aware of the new information that emerged in the public hearings. He emphasised that this was a Committee report, which the Committee would need to amend and adopt, and on the basis of which propose a way forward.

Mr Joseph said that the public hearings were a serious message that there were serious issues in the way that the Bill was initiated, and the implications of the Bill for the day to day life of communities and the relationship between leadership and the communities. He felt that the Committee was not ready to move forward on this Bill. There were still too many unanswered questions, communal issues, and land issues. While the Committee recognised the traditional systems, and the need to honour and respect them, it saw difficulty in bringing them in line with the Bill of Rights, constitutional rights, women's rights and children's rights. Thus there was a strong motivation to withdraw or review the Bill. The wishes and the will of those who had made submissions had been clearly expressed. The Committee needed to reconsider in that context.

Mr Bloem commended this very comprehensive report. He asked if the Committee was going to discuss the Bill further.

Mr Gunda thought that the Committee was going to send the document to the provinces. He wanted to hear the provinces' responses before proceeding further. Even the Minister was not happy with the Bill.

The Chairperson explained that this was the report on the public hearings. It was a report to be tabled in the House. There was a second and separate report that had been submitted to the provinces.

The Committee Secretary said that this report was additional information and summarised what happened. It was up to the Committee to decide if it wanted the Committee Secretariat to send this report (to the House) to the provinces as part of the information pack sent to them.

Mr Matila noted that the Committee had already taken a decision that the Bill had been referred back to the provinces. He understood that this report was just on the public hearings. It was not about the Bill itself. He proposed adoption so that the Committee could send this report to the provinces too. It was a very clear document. He moved for adoption so that it would become an official Committee document.

Mr Nzimande agreed with Mr Matila. It was important that the provinces read the report's observations that consultations had not been proper. He supported the motion, but left it to Mr Bloem to second, as the latter always wanted the opposition to second a motion.

Mr Bloem wanted to understand the process further. He was happy that this was not the end and the report would go to the provinces. Was there a date for the Committee to complete the Bill?

The Chairperson said that he could not forecast when the Committee would complete its deliberations on the Bill.

Mr Bloem supported adoption of the report.

The Committee thus adopted the report.

The Chairperson asked if there should be a statement in the house.

Mr Bloem asked for a statement.

Conclusion
The Chairperson thanked the Members, wished them a good rest with the families, and adjourned the meeting.