Regulation of Interception of Communications Bill; Judicial Officers Amendment Bill: deliberations

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
28 August 2002
REGULATION OF INTERCEPTION OF COMMUNICATIONS BILL; JUDICIAL OFFICERS AMENDMENT BILL: DELIBERATIONS

Chairperson: Adv J H De Lange (ANC)

Documents handed out:
Interception and Monitoring Bill - Draft 5 (renamed the Regulation of Interception of Communications Bill)
Proposals for Interception Centres, from Ministry of Intelligence Services (see Appendix)
Satchwell v President of South Africa (25 July 2002 judgment)
Complaints Mechanism - Latest Draft
Judicial Officers' Amendment Bill - Latest Working Draft
Proposed changes to Judicial Service Commission Act

SUMMARY
The Committee considered Clauses 52 to 61 and the remaining definitions of the Regulation of Interception of Communications Bill. In Clause 51(6), the Committee reduced the period of three years, which a person has to claim forfeited listed equipment from the court, to three months. No decision was taken on Clause 57, which refers to an amendment to the Drugs and Drug Trafficking Act, pending an inquiry into the necessity of the provision. A suggestion from the Committee that the Bill be published for the public to become familiar with it prior to its enactment was negated due to the Constitutional provision that a Bill takes effect upon publication.

The Committee discussed the latest draft of the Complaints Mechanism of the Judicial Officers Amendment Bill and Members were informed of the background to this mechanism, including the problems raised in the previous working draft with regard to the structure of the mechanism, the impact of the Van Rooyen judgment, Constitutional challenges and efforts made to make it applicable to both judges and magistrates alike.

The new Chapter 2 of the Bill was introduced, which establishes a Conduct and Ethics Committee (the Committee) which would establish and maintain a Code of Ethics and Conduct, advise judges on ethical issues and consider complaints lodged and forward them to the Judicial Service Commission (JSC), if they are of merit. This chapter also provides for the creation of an Inquiry Tribunal which would investigate the complaint, and its report would be forwarded to and considered by the JSC when it submits its findings to Parliament.

The discussion on Clause 8 focused on the establishment of the Committee and its composition, and it was proposed that attorneys, advocates, law professors and additional judges be included. Under Clause 9 the impact of Subclause 5 on secrecy considerations have to be further deliberated, and it was proposed that Clause 11 require judges to disclose their shares in an asset register. In Clause 12 it was considered whether the Code should be made a public record.

MINUTES
Morning session
Clause 52: Presumptions relating to failure to report
The Chair was of the opinion that since the Clause created a presumption, it was necessary to create an offence and asked that a subclause (1) be inserted, containing the offence, and subclause (2) with the presumption.

Mr Jeffrey suggested that since Clauses 48 to 52 followed the same pattern, they be incorporated into one provision.

The Chair agreed and asked Mr Labuschagne to put the four Clauses into one provision in whichever way he thought best.

Clause 53: Revoking of licence to provide telecommunication service
Mr Labuschagne, legislative drafter for the Department of Justice, pointed out that the Clause contained the only reference to ICASA. SubClause (a)(ii) was the only offence for which licences could be revoked.

Mr Jeffrey (ANC) asked if it would not be better to put the provision in the Telecommunications Act.

Mr Labuschagne felt that the intention was to keep all interception-related provisions together.

The Chair added that this was one of those Acts where all the line functions got mixed together.

Clause 51: Forfeiture of listed equipment
Mr Labuschagne explained that the provision would apply not only when a person was charged with possession, but also when caught intercepting illegally.

The Chair said that although he could understand the first part of subClause (1), he could not understand the use of the word "if" in sub(1)(d).

Mr Jeffrey suggested that it might help to replace the "if" with "unless".

The Chair agreed and suggested that in the alternative sub(1)(d)(i) could be made to refer to service providers who had not been exempted.

Mr Labuschagne said that he would sort that out. He added that Clause (2) was necessary and to delete it would mean that interception could be carried out with equipment that has not been listed.

The Chair asked if sub(2) dealt with listed equipment. He felt that if listed equipment could be provided for under sub(1), there would be no need for a sub(2).

Mr Labuschagne felt that subclause (2) was necessary. He gave the example of an employer who has been exempted. If the employee were to be found guilty of interception using the employers listed equipment, provision should be made for the equipment to be given back to the employer.

The Chair agreed, with the proviso that the employer/ other person had no knowledge of the interception. Referring to subclause (3), he said that the Clause applied to everyone except convicted persons. A convicted person could never use it as a defence, but a third person could.

Mr Jeffrey suggested that the "or" in sub(1)(c) should be an "and" and the Chair agreed.

The Chair asked Mr Labuschagne to make sub(5)(a) refer to equipment declared forfeited under subsection (2), and sub(5)(b) refer to listed equipment declared forfeited under subsection (1).

Mr Labuschagne thought that that would be incorrect as it would allow, for example, the equipment belonging to an employer who had been granted exemption to be destroyed.

The Chair responded that subClause (5)(b) would then have to be rewritten to include timeframes. If that was done (a) would become (b) and (b) would become (a), so what was basically needed was one Clause for both.

Mr Labuschagne explained that the provision at present makes a distinction between listed equipment in respect of someone who has been granted an exemption, and listed equipment where no one has been granted an exemption.

The Chair asked that sub(b) be deleted as there can only be an exemption in respect of listed equipment. An exemption could not be brought for other equipment.

Mr Jeffrey felt that surely the intention was to encourage anyone who wanted to make use of sub(3) to do so at the end of the criminal proceedings, rather than bringing a separate action during the proceedings.

The Chair, moving on to subclause (6), thought that the period of 3 years given to claim forfeited equipment should be decreased to 3 months. He was of the opinion that the wording of sub(6) was too long, when all that was needed to be said was that the court may, upon application by a person referred to in sub(3) (i.e. an exempted who did not have knowledge), inquire into and determine whether he/she is a person referred to in sub(3), and if the court is satisfied, return it to them.

Mr Jeffrey felt that the Clause could be simplified even more. The right has already been dealt with so all that was needed to be said in sub (6) was that an application may be brought within three months.

The Chair asked Mr Labuschagne to rewrite that subclause and to adapt subclauses (4) and (5) so that the equipment could not be destroyed until after the 3 month period and /or any appeals pending.

Mr Labuschagne asked if it was still necessary to have to subclauses dealing with listed and non-listed equipment.

The Chair responded that it was probably better to deal with them separately. Subclauses (4) and (5) needed to make a distinction between subclauses (1) and (2).

Chapter 10: General Provisions
The Chair noted that Clause 54 had already been dealt with and moved, as an exemption.

Clause 55: Directives regarding applications
The Chair asked if the word "supplement" was the correct term and if there should not rather be a Clause to allow the old directive to apply and thereby not refer to supplements.

Mr Labuschagne replied that in practice, certain issues would come up that had not been dealt with in the Act and the provision allows for judges to make regulations in respect of these issues through directives.

Clause 56: Amendment of s205 of the Criminal Procedure Act
The Chair pointed out that the only real change was the addition of a reference to Clause 54 in the provision.

Clause 57: Amendment of s11 of Act 140 / 1992
The Chair stated that he was not happy to change the word "convince" in the Drugs and Drug Trafficking Act as the test had worked fine all along and he was not prepared to change the test in that Act.

Mr Labuschagne replied that consistency was the reason behind the change, as the intention was to keep the test in that Act the same as that in the Interception Bill Intelligence was in the process of repealing and replacing the Act - the draft Bill was currently with the State Law Advisers - and the provisions of the new Bill would be in line with the Interception Act.

Mr Landers (ANC) asked if the test would be changed in the draft amendment.

Mr Labuschagne answered that he did not know if the test would be changed but the Act would be repealed.

The Chair could not see why that Act deals with interceptions.

Mr Labuschagne responded that the Act definitely did not deal with interception of communications.

The Chair could not see how the section could be amended if it dealt with something else. He asked Mr Labuschagne to liaise with Intelligence, as he could not understand why the Clause was in the Bill. It was the first time that he had come across the Clause, as he had not been present during previous discussions on it. He felt that the Clause may be removed and flagged it.

Clause 59: Amendment of s3 of Act 40/ 1994
Mr Jeffrey was of the opinion that if the intention was to make a judge compile a report, then the provision should be put into the Interception Bill and not into the other Act.

The Chair was more sympathetic towards the Clause and could understand why it could not be put into the Interception Bill. He questioned why the judge would report to the Joint Standing Committee on Intelligence.

Mr Landers responded that the JSCI did not oversee the judge. It was the judge's responsibility to monitor the Intelligence agencies and see that interception and monitoring was done in terms of the law. The system was been devised in 1993 when it had been decided that the judge could not report to an ordinary Portfolio Committee - the JSCI are sworn to secrecy. The judge also does not report to the Minister.

The Chair questioned how it would help for the judge to take a problem found with the police to the JSCI.

Mr Landers responded that the JSCI would then take the matter up with the police.

The Chair asked that the Clause be left as is for the moment, as he needed to give some thought to it.

Clause 60: Repeal of law and transitional arrangements
The Chair did not like subclause (4) as he felt that to make the evidence retrospective would be to make the crime retrospective. He could not see how that could be done.

Clause 61: Short title and commencement
Mr Jeffrey commented that the President was under an obligation to consent within a reasonable time.

The Chair stated that it was only upon publication that the Bill would become law, and not on assent.

Mr Jeffrey suggested that, given the complexities of the Bill, it should be published for people to see before it becomes enacted into law. The ramifications of the Bill were vast. He the reporting of lost SIM cards as one example that the public needed to see and know of before it came into effect.

The Chair was of the view that even if the President fixed a date, as soon as the Bill was published it would become law. The Constitution was clear that legislation comes into effect on publication or a date set by the President. This had only been noticed when the Committee had dealt with the International Criminal Court Bill - that even though a set date may be fixed, a Bill comes into effect upon publication.

Mr Jeffrey reiterated his concern that it was a big Bill that was going to come into effect in one go.

The Chair stated that the debate had been had before and he did not like the idea of fixed dates. He asked that the brackets be retained so that a decision could be taken later.

Definitions
The Committee looked at those definitions that they had not covered previously but did not make any changes. Definitions considered were those for: cell phone, contents, director, Identification Act, ID document, listed equipment, office and SIM card.

The Chair asked if subClause (2) was just a definitions Clause.

Mr Labuschagne replied that it basically was. He explained that subClause (3) had been obtained from UK legislation.

The Chair clarified that the intention behind subclause (3) was to ensure that if someone broadcast over the radio it would not be regarded as interception. He did not have a problem with the Clause and decided that the option would read "transmitted or broadcast".

Afternoon session
Mr J de Lange, Legislative Drafter from the Department of Justice and Constitutional Development, informed Members that the version of the Judicial Officers Amendment Bill circulated to them was a update of the previous working draft of the Bill.

The Chair stated that this draft differed from the previous draft only in the fact that the chapter entitled "Complaints Mechanism" is completely replaced by the new Complaints Mechanism. The Chair asked Mr de Lange to propose the manner in which this Committee should deal with these amendments.

Mr de Lange replied that the 'Complaints Mechanism' contains a comprehensive complaints mechanism and it might be a high priority to deal with it first. The highlighted areas with struck have been omitted because they are comprehensively dealt with in the Judges' Remuneration and Conditions of Employment Bill, and those portions that have been highlighted but which have not been struck out are the new areas. Footnotes have also been included for referencing purposes, and provide additional useful information to Members. It was important to note that the most challenging aspect of the Satchwell decision is that the Constitutional Court held that, not only could express provisions in legislation be held unconstitutional, but so too could omissions from legislation.

Complaints Mechanism
Background
The Chair provided Members with background information on this mechanism. When the previous working draft was being considered by this Committee, the Chair had tasked researchers with compiling a document detailing all those foreign jurisdictions that employ complaints mechanisms and the manner in which they work, and the corresponding legislation was appended. In March 2000 a document was drafted by the Department which dealt with the same topic, and also contains background information on the mechanism. A document dealing with the Code of Conduct for South African judges was also distributed to Members, which was compiled by the late Chief Justice Ismail Mahomed and the Chief Justice Arthur Chaskalson, as leaders of the judiciary. This Code was adopted approximately one year ago.

A big controversy was caused when the draft of the complaints mechanism was leaked to judge before it had been fully considered, and they stated that they would not apply it. The result was that the judges then got together and drafted a proposal of the complaints mechanism which is the version contained in the previous working draft of the Bill, and contains their minimum standards. This also fits into the Constitutional dispensation because the Judicial Service Commission (JSC), which is consists of judges alone, presently interprets the Constitution as it stands to mean that only cases of gross misconduct, incompetence or incapacity by judges can be dealt with by Parliament and processed via the JSC. Any lesser offences, they maintain, cannot be processed by the JSC, because it does not have jurisdiction over such matters.

Mr L Landers (ANC) asked which body would then be responsible to hear the lesser offences.

The Chair replied that, according to the JSC, no one would, and this is the reason for the introduction of the new Complaints Mechanism. This Committee has attempted to expand the Complaints Mechanism, as Mr de Lange would explain shortly. Furthermore, magistrates do have a Complaints Mechanism in their legislation, but it does create problems with regard to procedure. These were highlighted by the Van Rooyen judgment which struck down certain aspects of the magistrate's disciplinary process, especially the role of the Minister of Justice and Constitutional Development (the Minister) in the process, which is to approve the recommendations made by the Magistrate's Commission (MC). The court held that the Minister could play a role in the appointment of magistrates, but could play no role in their dismissal.

The current version of the Complaints Mechanism provides different steps that have to be followed and provides that ordinary disciplinary matters which do not result in dismissal, such as a rude judge, would be dealt with by the JSC. Yet those more serious matters which could very well result in a dismissal would be forwarded to a special tribunal consisting of judges, and would be presided over like a court case. In view of the above mentioned problems highlighted in the Van Rooyen judgment, the Bill's Complaints Mechanism applicable to both magistrates and judges alike.

Mr de Lange responded that the Bill's revised Complaints Mechanism is framed in such a way that it could be duplicated in the Magistrates Act.

The Chair stated that this matter has to be thought through, because those instances in which the judicial may be removed has to be forwarded to a tribunal of judges as well, so that it may be the only body dealing with the dismissal of all judicial officers. This body would, however, still have to submit its findings to Parliament. The end result would thus consist of two things, being mindful of the fact that South Africa does not have a single judiciary: both the JSC and MC would deal with ordinary disciplinary matters. The second would be that if a serious matter arises which could result in dismissal, this matter would be forwarded to the tribunal, which would then make recommendations to Parliament. Should the Committee agree on this structure and to amending the relevant provisions in Magistrates Court Act, the problems caused by the Van Rooyen judgment would be solved. In future, when a single judiciary is established, this could all be one process.

Mr de Lange added that had tried to develop a concept in the Complaints Mechanism that could be put into the Magistrates Court Act. Members might be annoyed by the level of detail of these provisions, but the aim in drafting the Complaints Mechanism was to include all aspects.

The Chair contended that the regulations could, however, be kicked out by the Constitution.

Mr G Magwanishe (ANC) asked whether the tribunal would consist of both magistrates and judges, or judges alone.

The Chair stated that these kinds of issue would be discussed when the actual tribunal is dealt with. The tribunal could consist of magistrates as well, and tribunals in some foreign jurisdictions even include lay participation.

Mr M Mzizi (IFP) stated that the structure outlined earlier by the Chair provides that matters that could result in dismissal have to be dealt with by the tribunal, yet it does not clearly indicate the line function of the Department, the MC and the Judicial Officers Association of South Africa (JOASA) would be.

The Chair replied that the Department and JOASA would have no role here, as the main roles would be served by either the JSC or the MC. Should it be a serious matter that could result in dismissal, it would be forwarded to the tribunal.

Mr Mzizi suggested that the problem here is that whatever is forwarded to the MC comes from the Department itself.

The Chair stated that the Department has nothing to do with this process, because this process deals only with disciplinary matters. The portion of the Van Rooyen judgement dealing with disciplinary matters makes it clear that such matters must be dealt with by judges and magistrates, and to this extent no role would be played by the Department. The Department would, however, still play a role in the appointment of judicial officers. The Chair stated that he is of the opinion that the appointment mechanism is unconstitutional, but this matter would be discussed at a later stage.

Mr Mzizi contended that the problem here is that judicial officers want to function independently, yet the moment they are disciplined they want to be treated as employees. He agreed with the structure proposed by the Chair because the JSC is currently clogged down with cases of complaint, with the result that these cases are never heard from again.

Mr de Lange sketched the background to the Bill, informing Members of the few major areas of concern regarding the council itself. There was no clear distinction between the council's advisory and disciplinary functions or when in fact it acts as a tribunal or when it conducts a preliminary investigation. The composition of the council was also a problem because it consists of judges alone, and the major problem here is that it only deals with minor matters and its powers with regard to dismissing the complaint or taking appropriate steps are not certain. The serious matters are then forwarded to the JSC, which leaves a complete void in the disciplinary process. The procedure to be followed by the JSC in processing the disciplinary complaint is not currently detailed in any piece of legislation.

The mechanism also affects Section 177(1) of the Constitution, which outlines the grounds for dismissal of judges. In this regard it is important that the oversight of judicial conduct and ethics vests in the JSC, because it is "principally sound" to regard the JSC as the umbrella body here. Furthermore, Section 180 stipulates that the legislation may be devised to deal with complaints about judicial officers, as is now being done.

The Chair suggested that Mr de Lange is stating that, in order to ensure that Section 177 operates properly, it would be nonsensical for the process to originate with the JSC, then be referred to another body, only to then be returned to the JSC.

Mr de Lange then informed Members that most of the current Judicial Service Commission Act provisions would fall away. The primary reason for this is that that Act still refers to the Interim Constitution of 1993, and Clauses 1 to 6 of the Judicial Officers Bill merely stipulate these consequential amendments aimed at bringing the Act in line with the 1996 Constitution. The existing provisions have been converted into Chapter 2, which is then divided into various parts.

Chapter 2: Oversight Over Judicial Conduct and Ethics
Part I: Establishment and objects of Committee
The new Chapter 2 replaces the Judicial Council originally established under the Judicial Service C Act with the Judicial Conduct and Ethics Committee, which is similar in nature to the MC. The Committee would perform two functions: firstly, to establish and maintain a Code of Conduct for judges and, secondly, would advise judges on ethical issues from time to time. In most cases the minor matters would be dealt with and possibly resolved on an informal manner, but the main thrust of Chapter 2 are the more serious offences.

There are thus three possible scenarios envisaged by Chapter 2. The first is that the complaint does not qualify as a proper case, which would result in summary dismissal. The second would be where the members of the Committee consider the matter to be of merit, and agree that there is a likelihood that the judge concerned could be found guilty of gross misconduct, incompetence or incapacity. The case would then be referred to the full Committee, and it would then decide whether the matter should be forwarded to the JSC. The third scenario is where the members of the Committee consider the complaint and decide that it is of merit but will not lead to serious consequences. The members would then investigate the matter further and submit a report on it to the Committee, which would then decide to either dismiss the case or take appropriate action. This action would have to be confirmed by the Committee, because it would either dismiss the case or make recommendations to the JSC, which are outlined in Clause 16(5).

The Chair informed Members that certain jurisdictions do impose fines as well.

Mr de Lange stated that Part IV deals with the appointment of Inquiry Tribunals. Clause 19 provides that there have to be reasonable grounds to suspect that the judge has acted in gross misconduct, incapacity or incompetence before an Inquiry Tribunal may be established. Part V deals with the functioning of such tribunals, and here it has to be remembered that the Constitution provides that only the JSC can make a finding. Part VI provides that the JSC would then consider the report of the Inquiry Tribunal, and the JSC would have to submit its findings to the Speaker of the National Assembly. Should the JSC not find the judge to have acted in gross misconduct, incompetence or incapacity but is guilty of some degree of misconduct etc, Clause 23(5) provides that it can still impose one of the penalties contained in Clause 16(5).

The Chair approved of the structure of Chapter 2, and stated that it is much more in line with his thinking. He asked Mr de Lange whether the heading of Chapter 2 was taken from the Constitution.

Mr de Lange confessed that he did not himself decide on the heading, and does therefore not know its origin.

Clause 7: Definitions and interpretations
Mr de Lange state that it should be noted that the definition of "judge" in this clause does now include all judges.

The Chair asked whether this definition automatically includes those judges in the Land Claims Court and Labour Court.

Mr de Lange answered in the affirmative, because these judges share the status of judges of the High Court. Subclause 2 includes a reference to a legal representative of the complainant or judge.

Clause 8: Establishment and composition of Judicial Conduct and Ethics Committee
Mr de Lange stated that this is an important clause because it establishes the Committee. The composition of the Committee is "very open" and specifically makes provision for the inclusion of a woman, following a proposal raised during the last meeting.

The Chair stated that it would not be desirable to include politicians on the Committee, and asked whether advocates, attorneys and law professors should perhaps be included here. This would "open the scope a bit".

Mr de Lange replied that this could be considered, but contended that the initial intention was to keep the range of persons as small as possible.

The Chair informed Mr de Lange that these people could be included under paragraph (d), only the scope would be widened slightly. Paragraph (e) does present a practical problem, because if the Committee does convene it would be difficult to secure the presence of all five Judge Presidents at one meeting. This then has to be marked as a possible issue. Another is that all those referred to in this clause will struggle to handle disciplinary matters by themselves and Members should perhaps consider that, when the Committee sits as a disciplinary structure in terms of Clause 10(c), two or three judges should be included to carry the load of reading through all the records of the case. The reason for this is that the other judges will not do this, so those who would physically have to perform this task would be the two or three judges.

Mr de Lange recommended that this issue be flagged, but suggested that he does not foresee the Committee being troubled with long records.

The Chair replied that the problem is created by the fact that Clause 13(1) in Part III provides that "any person may lodge a complaint", and would result in the same problem currently being experienced by the JSC in receiving huge complaint documents. This issue should be flagged because these two or three judges could be included on the Committee or the Committee could be granted the capacity to appoint two or three judges to perform this task. Thus paragraph (e) should be flagged as well, and the three categories of legal professionals mentioned earlier have to be added.

Mr de Lange contended that it is a good idea to make the Chief Justice the Chairperson of the Committee, as provided in paragraph (a).

The Chair stated that the provision should be left as it currently stands because the Chief Justice is the head of the South African judiciary, and cannot be expected to sit in a meeting of which he is not the Chairperson.

Clause 9: Meetings of Committee
Mr de Lange informed Members that this clause is straightforward, but stated that Subclause 5 is an interesting provision.

The Chair called for this provision to be flagged, because the issue of secrecy is an important one and permeates the Bill. Committee meetings would probably be held behind closed doors. Certain foreign jurisdictions have complete secrecy here, whereas other employ partial secrecy, and the South African position should be located somewhere in the middle. If the meetings are held behind closed doors and the judge is not convicted, the public could very well argue that "the brothers are looking after each other". Furthermore, the last line of Subclause 5 should be amended by replacing the "/" with the word "and".

Clause 10: Objects of Committee
Mr de Lange stated that paragraph (a) has been included to formalise the Code of Conduct and Ethics. It is envisaged that precedents will be established in a few years, which will then be added to the existing Code via the word "maintain" in this provision. The use of the word "reports" in paragraph (d) has to be flagged. This report must not be elaborate, because Section 6 of the JSC Act already requires the JSC to submit an elaborate report to Parliament, which could include the Committee's activities, its findings and those of the JSC.

The Chair agreed with Mr de Lange.

Part II: Judicial conduct
Clause 11: Judge not to hold any other office of profit
The Chair questioned whether these provision are not included in the Judge's Remuneration and Conditions of Employment Act.

Mr de Lange answered in the affirmative, and informed Members that those provisions have been removed from that Act because they do not apply to all judges, whereas Clause 11 does.

Mr Magwanishe stated that judges are appointed to their office for life, yet those that serve a limited term only, such as the Labour Court judges, would not be allowed to take up any other position of employment despite not being sure whether their tenure will be extended once the present term expires.

The Chair replied that a judge remains a judge, but this Portfolio Committee will be meeting with those from the Labour Courts in September this year to harmonise this, so that they may also be appointed as full judges in the Labour Court system. This is already being done by the Land Claims Court, where judges from other divisions have been seconded to serve in the Land Claims Court. The aim here is to avoid separating judges, and presents them from acting outside their position as judges.

Mr de Lange added that the phrase "without the consent of the Minister" in this clause provides that the judge would have to obtain the consent of the Minister should s/he decide to do anything else.

Mr Magwanishe asked whether those who were directors of companies would have to sell their shares before officially taking up office as a judge.

The Chair responded that they would have to give up all directorships held in their companies, but would not have to sell their shares.

Mr Magwanishe asked whether those judges would then still be allowed to draw on these investments via the dividends.

The Chair stated that they would still be able to keep these.

Mr Landers asked whether these judges would have to declare all their assets, such as shares which come in via dividends.

The Chair replied that judges are not required to disclose as much as Members of Parliament have to.

Mr Landers supported the concern raised by Mr Magwanishe and recommended that judges be required to declare such assets.

The Chair accepted the concern raised, and called for it to be included in the clause.

Mr de Lange informed Members that it would be difficult to include provisions here that would alter conditions of service of judges.

The Chair stated that this proposal would not affect their conditions of service, and Clause 12(1) could be amended to include an asset register. This document could be similar to the form which Members of Parliament have to submit, and the Committee would then have to create a body to do so.

Clause 12: Code of ethics, and advice to judges
Mr de Lange informed Members that the Illinois legislation requires its Judicial Inquiry Board to have an asset register, which forms part of their comprehensive Code of Conduct.

The Chair approved and suggested that the asset register too be made part of the Code in the Bill. The phrase "conduct and" should be inserted before the word "ethics" in Subclause 1, so that the clause cannot be narrowly interpreted to refer to "ethics" alone. Furthermore, the Committee alone has to have access to it, so that the members of the judiciary do not feel that their privacy is being encroached upon.

Ms F Chohan-Kota (ANC) asked whether there would be a problem in making such information available to the public.

The Chair replied that it would create problems with security. Ms Chohan-Kota suggested that their asset register form could be structured in the same way as the form that Members of Parliament have to submit, which is divided into a public and private section. The public section could then be made available as a public record.

The Chair replied that this could be included, but would have to be worded cautiously.

Mr de Lange contended that Subclause 3 is not really necessary, but its inclusion can do no harm.

The Chair suggested that the phrase "before publication in the Government Gazette" should be inserted at the end of Subclause 4.

Mr Magwanishe stated that Subclause 4 has to include that the Code of ethics and conduct must be approved by Parliament.

The Chair informed Mr Magwanishe that this amendment could not be effected, because it would offend the doctrine of the separation of powers, and would thus be declared unconstitutional. Thus Subclause 4 should remain as it currently stands so that the Committee is required to submit the report to Parliament alone, and it would become a public document.

Mr de Lange stated that Subclause 5 is necessary, but it lacks "teeth". It is perhaps the purpose of advice to establish precedent, and this subclause should perhaps be amended to require the Committee to maintain a register of the advice it has dispensed.

The Chair stated that the Committee should also be required to compile and maintain an annual book on the precedents established which is more narrow than ethics, because the ethics would be interpreted and used to devise the precedent set. Mr de Lange was requested to formulate this provision, and could perhaps take the form of "a circular of the advice given in particular circumstances".

There were no further questions or comments and the meeting was adjourned.

MINISTRY: INTELLIGENCE SERVICES
REPUBLIC OF SOUTH AFRICA

Office of the Minister for Intelligence Services 27 August 2002

Adv J De Lange
Chairperson: Portfolio Committee on Justice
Parliament
Cape Town

COMMENTS: THE REGULATION OF THE INTERCEPTION OF COMMUNICATIONS BILL, 2002

Find attached comments from the office of the Minister for Intelligence Services on the above-mentioned matter, as agreed to by the Heads of Departments mentioned below:

The National Commissioner: SAPS;
The Director-General of the National Intelligence Agency;
The Director-General of the Department of Justice; and
The Director-General of the Department of Communications.

Please be advised that after thorough consideration of the proposed provisions of Chapter 6 of the Bill, the afore-mentioned Heads of Departments unanimously agreed that the Minister responsible for the~. Interception Centres should be the Minister for Intelligence Services. This function currently resides under the political authority of the Minister for Intelligence Services. The functions of the Minister of Justice relating to the appointment of the Judge(s) shall remain with the Minister of Justice.

PROPOSAL FOR THE INTERCEPTION CENTERS
Chapter 6
The Minister for purposes of chapter 6 should be the Minister for Intelligence Services with respect to functions relating to the Interception Centres. This function does not fall under the line function of the Minister of Justice. However, the functions of the Minister of Justice relating to the appointment of the Judge shall remain with the Minister of Justice.

Section 31(1)
Alternative

There is hereby established an office for Interception Centres to be known as the Office for the National Communication Centres.

Section 32

The Minister, after consultation with the relevant Ministers, must appoint or second a member or a person or an officer as the Director to the office of the
Director: Office for the National Communication Centres, who will be the head of the office.

Section 30 (8)

No Interception Centre shall be constructed and I or operated or continue to exist within the Republic or otherwise except in accordance Wit the provisions of this Act.

Section 32 (7) New insertion

All assets, equipment excluding liabilities and duties primarily used for interception and monitoring by the law enforcement agencies shall be transferred to the Interception Centre on the date of coming into operation of the Act.

No transfer duties or any other fees shall be payable for transfer of all the assets.

Section 32 (8) New insertion

The Interception Centres shall enter into service level agreements with the relevant law enforcement agencies, for provision of interception services for purposes of this Act.

Chapter 8

The Minister for purposes of this Chapter should be the Minister of Communications.

NB If the principles are agreed upon, editorial work will have to be conducted to ensure consistency throughout the bill.