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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
18 JUNE 2002
INTERCEPTION AND MONITORING BILL: DELIBERATIONS
Documents handed out:
Interception and Monitoring Bill [B50-2001] - Working Document Draft 4A
The Committee was briefed by the Department on the amendments made to the Interception and Monitoring Bill. Issues debated were whether a person working for a service provider could divulge information that he learned during the course of carrying out his duties. The Committee was of the opinion that, in such a case, reporting an offence could not constitute an offence.
The threshold required to obtain a direction in terms of archived information has been made less than that for interception. The reference to the use of force when executing an entry warrant has been removed so that force may not be used.
Clause 2: Interception of communication by party to the communication
The Chair explained that, as concerned clause 6(2)(c), the Committee could decide between the options chosen by either Australia or the US. He felt that the Australian option was impractical, and that the clause was important in term of crime fighting.
Mr Labuschagne, legal drafter for the Department of Justice and Constitutional Development, stated the opposite argument, which is that if a person in a law enforcement agency knows that a judge will not issue a direction, he/she could make sure that they become a party to the communication, and that was why the Australians had built in the provision.
Mr Landers (ANC) agreed with the Chair but he was fearful of creating the loophole that law enforcement agencies were looking for in that every situation would become an urgent one.
The Chair decided to leave the provision with a note so that it only required a decision by the Committee.
Clause 7: Interception of communication with consent of party
The Chair felt that it was important for the communication to be in writing because clause 7 applies to private detectives. He felt that there was nothing wrong with interception provided that written consent was given. He asked Mr Labuschagne to remove the brackets surrounding "in writing".
Mr Labuschagne noted that subclause 2 incorporated the previous clauses 3, 4 and 5.
Clause 8: Interception of communication to prevent serious bodily harm
Mr Labuschagne noted that he had inserted clause 2(1)(a), relating to the submission of an affidavit to a judge, because a judge was not involved at the initial stage of an investigation. A new subclause (3) was also inserted whereby a judge must destroy any recording, transcript or notes submitted to him as soon as possible and in his presence.
Clause 9: Interception of communication for purposes of determining location in case of emergency
Mr Labuschagne explained that a new subclause (1)(c), pertaining to the unknown location of a sender, had been inserted.
Clause 10: Interception of communication for purposes of installation or maintenance
Mr Labuschagne explained that subclause (2) was a new clause, which provides that when a person intercepts a communication, he/she may use the information only for the purpose for which it was gathered. The policy question was whether if, during the performance of his/her duties new information comes to light, he/she should be able to do anything about such information.
Mr Landers (Chairing in Adv De Lange's absence) said that the discussion revolved around possible abuse of the clause. He felt that there was a need to look at the Australian Act to see how they dealt with the issue.
Mr Labuschagne did not think that the Australian Act would be able to assist in that regard. He suggested flagging the issue for discussion later. He posed the example of a Telkom employee who overhears something during the course of carrying out his duties, and asked whether the employee should be able to pass such information on.
Mr Landers said that his feeling was that it should be able to be passed on but was concerned about the situation where something was overheard that was not necessarily illegal.
Adv Masuta (ANC) felt that it should be allowed under controlled circumstances and for specific purposes and not merely in relation to a crime. He gave the example of traffic fines, which would not be related to the purpose of the interception. He cautioned against opening the door to allow all else to be done to a person, which may not have been called for in the first instance. He felt that the way the provision was phrased at the moment was fine because it narrows the application to whatever was originally intended.
Mr Mzizi (IFP) raised the issue of a Telkom employee who obtains information in terms of his job. Mr Landers asked Mr Labuschagne to take note of the question.
Adv Masuta felt that the debate centred around whether subclause (2) was needed or not. He was of the opinion that the subclause could be left out so that the normal rules of evidence would apply to the situation.
Dr Delport (DP) said that he believed the section to mean that if one happened to hear something during the course of carrying out their duties, that they did not then commit an offence.
Mr Labuschagne responded that a person who reports an offence does not commit an offence, and added that he must report to a competent authority.
Adv Masuta felt that this solved the problem and that some kind of control was wanted over the abuse of people's private lives. He would have preferred that the user consent to the interception of his line during the carrying out of maintenance.
Mr Landers stated that the problem was that the Service Provider (SP) may need to conduct the maintenance somewhere else, and so it may be impractical. It also implied that an interception device had been used and so some sort of authorisation had been received.
Imam Solomon (ANC) opted for Mr Labuschagne's suggestion that a person who reports an offence cannot himself commit an offence.
Mr Labuschagne did not know if the SP's would want such a provision. Mr Landers thought that it would be fine.
Clause 12: Interception of communications authorised by other Acts
Mr Labuschagne explained that initially the idea was to provide for interception in prisons but it had then been suggested that all places be looked at where people can be detained. Clause 12 had been the result of research but his personal opinion was that it should be limited to prisons. He thought it strange that the Acts referred to in the clause were still in the Statute books and felt that all the institutions referred to were going to be covered by the Bill, it would result in a "shopping list".
Mr Landers noted that it had been a suggestion of Adv De Lange and Mr Jeffreys and felt that it was something for the Committee to decide.
Dr Delport asked if any interception other than in terms of the Act would be an offence. He was answered in the affirmative and then agreed that it should be included.
Mr Landers decided to flag the issue.
Clause 13: Application for direction
Mr Labuschagne noted that the only changes made to the clause were technical. Subclause (2)(d) had previously been part of sub(c) but it had been decided to make it two separate paragraphs.
Clause 14: Application for archived communication-related direction
Mr Labuschagne said that the view had been expressed that the threshold of archived information should be less than that for interception and so the word "satisfied" had been changed to "if it appears".
Clause 16: Combined application
Mr Labuschagne explained that, in terms of subclause (1), four instances had been added for which a combined application may be made.
Clause 19: Application for entry warrant
For purposes of consistency, the word "grounds" had been substituted with "purpose".
Clause 20: Oral application
Mr Labuschagne said that there were many words surrounded by brackets in the clause that required decisions to be taken.
Mr Landers said that clause 20 would have to be returned to as it deals with oral applications.
Clause 21: Reports on progress
Subclause 2 had been deleted.
Clause 24: Execution of an entry warrant
Mr Labuschagne reminded the Committee that there were many arguments on the way that the warrant should be executed, in terms of protecting a person's Constitutional right to dignity and security. Subclause (2) tried to capture all the arguments. Members needed to decide on the use of force and how to protect people's rights if their property was entered in secret.
Adv Masuta suggested that it be checked whether there have been any Constitutional guidelines on entries and searches.
Dr Delport felt that once one started quantifying the use of force, one began to deal with the Bill of Rights and so the determination must be reasonable. He felt tat stipulating the right to respect and freedom etc. was not necessary, as the court would regard them in any case.
Mr Landers decided to flag the clause.
Ms Camerer (NNP) was not sure if the same wording had been used in other pieces of legislation relating to warrants, as it insinuated almost that in other pieces of legislation people did not act with dignity and respect etc.
Mr Labuschagne replied that the wording had been copied from other legislation that had been passed by the Committee.
Ms Camerer agree to leave it in if that was the case.
Mr Mzizi (IFP) said that it should be included because not all law enforcement agencies look to the Constitution to guide them.
Mr Labuschagne noted that, in clause 24(3), the reference to the use of force had been deleted so that law enforcement agencies would not be able to use force for purposes of executing an entry warrant.
Clause 25: Assistance by SP's
Mr Labuschagne said that there was a view that the clause contains too much detail. The opinion was held that it should be made much shorter and state that SP's must comply with the direction. The Committee had to decide on the issue.
Dr Delport asked if the SP, ex facie the direction, would know exactly what to do, or in other words, if the direction would be cumbersome.
Mr Landers said that it had been Mr Jeffrey's opinion that the clause, as it stood, may be open to challenge in terms of those provisions that had been forgotten from the list.
The meeting was adjourned.