Promotion of Equality and Prevention of Unfair Discrimination Bill; Promotion of Administrative Justice Amendment Bill; Judicial

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
3 September 2002
PROMOTION OF EQUALITY AND PREVENTION OF UNFAIR DISCRIMINATION BILL; PROMOTION OF ADMINISTRATIVE JUSTICE AMENDMENT BILL; JUDICIAL MATTERS AMENDMENT BILL; REGULATION OF INTERCEPTION OF COMMUNICATIONS BILL

Documents handed out:
Promotion of Equality and Prevention of Unfair Discrimination Bill (Draft)
Promotion of Administrative Justice Amendment Bill (Draft)
Judicial Matters Amendment Bill(Draft)
Insolvency Second Amendment Bill
Memorandum of Objects regarding the Judicial Matters Amendment Bill
Regulation of Interception of Communications Bill: Working Document: Draft 6 as on 03/09/02
Amendment to S 43 of the Attorneys Act of 1975 (available on 09/09/2002)
SALC requirements regarding Clause 16 and Clause 18

Chairperson: Adv De Lange (ANC)

SUMMARY
Brieifngs were given on the draft Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill, Promotion of Administrative Justice Amendment Bill and Judicial Matters Amendment Bill.

The Committee began working through the Sixth Draft of the Regulation of Interception of Communications Bill. They will continue with it on Thursday 12 September 2002 and they would vote on it on 13 September 2002.

The Committee will deal with the RSA Constitution Third Amendment Bill on 5, 6 and 11 September.

MINUTES
Promotion of Equality and Prevention of Unfair Discrimination Amendment Bill: briefing
Mr Du Preez explained that S 16, falling under Chapter 4 of the Act, made provision for Equality Courts (ECs) and the presiding officers therein. All High Courts (HCs) and Magistrates Courts (MCs) would be ECs and that the Minister would be allowed to make further designations. He noted that during a meeting held on 8 October 2001, it was agreed that the designation of the presiding officers would be left to the heads of the courts.

Clause 1
Mr Du Preez stated that this would replace S 16 of the Act. He pointed out that S 16 (1) (a) was a duplication of the existing provision. However, S 16 (1) (b) had been amended. He explained that the concern was that S 31, allowing only judges or magistrates to be designated, could be a possible ground for objection by persons. The proposed S 16 (1) (c) aimed to facilitate the incremental facilitation of the ECs in contrast to the previous view held by the department. He pointed out that the department had experienced resource problems as the result thereof, for instance, insufficient training or infrastructure. He explained that proposed S 16 (1) (d) would deal with the designation of magistrates and additional magistrates.

Mr Du Preez said that the objection raised against S 16 (2) was in regard to S 31 (1), as a need for training was identified. The proposed S 16 (3) would obligate the Director General to keep a list of all designated officers. S 16 (4) was a repetition of the existing S 16 (2) of the Act.

Clause 2
Mr Du Preez explained that this clause amended S 17 (1) (a) and (b), the sections dealing with the Clerks of the ECs. He noted that the amendment of S 17 (1) (a) was consequential to the amendment of S 17 (2), and explained that the provision would deal with the power of the Director General to appoint designated persons as clerks of the ECs. S 17 (1) (b) would deal with the situation where a designated clerk is unavailable. This is because the now inserted S 17 (2) clearly provided that only persons contemplated in S 17 (1) could qualify as clerks in terms of S 17 (1) (a).

Clause 3
Mr Du Preez explained that this amended S 31 of the principal Act through the proposed substitution of S 16. He added that the proposed amendment to S 31 (4) would be significant because the provision would aim to place the obligation for training programmes on the Judicial Services Commission and on the Magistrates Services Commission.

Adv De Lange wanted to know why the department had been excluded from that decision, and where the money to support such programmes would come from.

Mr Du Preez responded that administrative co-operation would occur.

Adv De Lange explained that the Bill had two purposes:
- All HCs are ECs and the Judge President will appoint judges in that regard.
- The Minister will designate particular courts as ECs, and the area of those courts in that regard.
- Persons would only be able to appear before this court upon having received the appropriate training, and that similar requirements extended to the clerks of the court.
- The present test for training in terms of S 31 had been removed as it could be a ground for persons to attack each judgement of the court.
- The role of the Minister had also been removed, and noted that the role had been diminished to such an extent that it became ridiculous. T
- The Bill would also stipulate the content of the training.

Mr Basset (Department) added that from the legislative point of view, the department was hesitant to introduce this incremental position. However, this decision was dictated by financial and other constraints. He noted that S 31 (3) would remain the same, as the focus would still be to ensure that the department makes every effort to ensure that all MCs are ECs. He added that the amendment of the training requirements was not as important to the department as the other two amendments.

Adv De Lange presumed that nothing had been done by the department about concerns the committee had earlier expressed regarding its continued oversight role. Mr Basset affirmed this.

Adv De Lange wanted to know why the department wished to retain its oversight role because such a structure would be expensive to maintain.

Mr Basset responded that the aim was to keep the committee involved. Nevertheless, he undertook to go back to the department and to return to the committee with an answer.

Adv De Lange pointed out that he had raised the issue with the Minister in public.

Mr Basset undertook to resolve the matter immediately.

Adv De Lange felt that S 31 (3) (b) should be moved to S 16. Mr Du Preez did not have any problems with that move.

Discussion
Mr Jeffery wanted to know if the department had a report on the implementation of the Act.

Adv De Lange replied that the Act had not yet been implemented.

Mr Jeffery explained that he meant a report outlining how far the department had gone in each area.

Adv De Lange responded that they were currently dealing with one of the areas, and that the other area of concern was funding.

Mr Basset explained that there was a Departmental Task Team currently dealing with the implementation of the Act, and that they had done some work. He suggested bringing the Project Manager before the committee for a briefing. To which, Adv De Lange said that a report would suffice for now.

Adv Masutha noted that the remedies that the ECs could award in terms of the principal Act were varied. He wanted to understand whether the jurisdictional aspect of the ECs regarding the remedies they may grant had been regulated.

Mr Basset pointed out that he did not presently have a copy of the Act before him and that he could not remember because it had been a long time since he had looked at the Act.

Adv De Lange confirmed that Adv Masutha wanted to know whether the original Act provided for jurisdiction of the ECs - which was an important question.

Mr Basset referred to S 19 of the principal Act and explained that the provision dealt with the jurisdiction of a MC sitting as an EC.

Adv De Lange repeated that MCs were allowed to impose harsher penalties, although this would have to be confirmed by the HCs.

Adv Masutha explained that one idea behind the ECs was to make the court as accessible as possible. He called for a sense of the complexities surrounding the running of an EC.

Adv De Lange responded that the process was 'very very complex' in virtue of dealing with all the issues from the past. As such, it would be necessary to have the requisite training before appearing in an EC. The difference would now be that by writing all the training requirements into the legislation, grounds for the appeal of all the cases would be created as one could simply argue that the presiding officer was not sufficiently trained. It was for this reason that the training requirement in terms of S 31 had been removed. Training would not be a prerequisite, although not possessing the status of a jurisdictional fact. He repeated that although training would be a necessary component, it would be important to ensure that all decisions can not be attacked.

In reply to Mr Jeffery asking how far the department had gone with regards to the programme for the training courses, Adv De Lange noted that they would be receiving a report about that.

Adv De Lange referred to the latter parts of S 16 (1) (b) and (d), and stated that both parts could not fall within the same clause. He called for a separate sub clause.

Adv De Lange stated that S 31 (4) would have to be dealt with at some stage. It would be ridiculous to allow the provision to operate in isolation of the department. The department should have a veto as far as finances would be concerned. He wondered where the training would be carried out in any event.

Mr Jeffery wanted to know the reason behind removing the role of the Minister from the training programmes. Plus who determined the training programmes for existing magistrates and judges?

Adv De Lange pointed out that Mr Jeffery had highlighted one of the problems with S 31.

Mr Basset explained that the provision was really a confirmation of the practical reality of the matter. Nevertheless, he noted the comments that had been raised by the committee and said that the matter would be revisited.

Adv De Lange added that as the provision stood, it would require the creation of a whole new administration under the judges. He noted that the wording of the provision failed to include sensitivity training and that this would have to be clearly spelt out.

Mr Jeffery was not happy with the idea of judges and magistrates determining the content of training.

Ms Camerer wondered whether this was really the reality on the ground. She wanted to know from where the statement made by Mr Basset came.

Adv De Lange proposed saying "develop the content of training courses with the view to", and then inserting the sensitivity requirement. He added that another clause should deal with the implementation of the programmes, and that the Minister should be included.

Promotion of Administrative Justice Amendment Bill: briefing
Mr Basset noted that Cabinet had recently approved the Bill. However, there were a few areas that would have to be revisited in consultation with the Law Advisors.

Ad definition of court
Mr Du Preez explained that the Bill would amend the definition of 'court'.

Adv De Lange wanted to know why consultation with the Magistrates Commission would be retained and whether the legislation made provision for training.

Mr Du Preez said that there was no specific reason for the retention - this could be amended. He would have to check up on the matter of training.

Adv De Lange noted that this Bill was more complex than the Equality Bill. There should clearly be training criteria, especially in situations where designation is allowed. If this Bill was meant to be in line with the Equality Bill, equal training provisions would have to be enacted.

Mr Du Preez said that the main problem was with designation.

Adv De Lange explained that persons would have to be qualified in order to provide checks and balances as with the Equality Bill. He felt that the department had clearly not thought about the matter when drafting the Bill because it would be necessary to draft this Bill in line with the Equality Bill.

In reply to whether the Promotion of Administrative Justice Act was in operation, Mr Du Preez replied that it was.

Adv De Lange wanted to know the events of the discussions.

Mr Basset said that they were aimed to ensure that there would not be any implementation problems. He pointed out that some judges had raised concerns about the constitutionality thereof.

In reply to the Chair asking whether the Van Rooyen judgement made any reference to designation, Mr Du Preez stated that he would look into the matter.

Mr Jeffery wondered whether the Minister would not appoint magistrates in any event. As such, he could not understand the difference made by this provision.

Adv De Lange though that the training issue should be controlled by the department. He said that it was for this reason that he was reluctant for judges to control the process.

Mr Jefferey enquired whether anybody would be trainable.

Adv De Lange explained that it was for this reason that only certain persons could be trained. He emphasized that there would exist persons incapable of receiving training.

Judicial Matters Amendment Bill: briefing
Ms Theresa Ross, the drafter, mentioned that the Bill had recently been approved by Cabinet. However, they had since found more errors and these would have to be taken up with the State Law Advisors.

Ms Ross explained that there were straightforward amendments to be made, and that they encompassed a variety of amendments that did not require individual amendment Bills. She pointed out that the Memorandum of Objects would be the basis for her briefing. In addition, she emphasized the fact that the Bill was currently with the Law Advisors and that some provisions could still change before the formal introduction of the Bill by Parliament.

Clauses 1 and 2
Ms Ross stated that these clauses would amend S 49 and S 99 of the Insolvency Act of 1936. This is by changing all references of Security of Inland Revenue (SIR) to the Commissioner of Inland Revenue (CIR), and a further amendment to the reference to the Unemployment Insurance Fund Act of 1936. Clause 1 on page 3 of the Bill should read sub (2) as opposed to sub (1).

Ms Camerer wondered why the department was not placing all the amendments relating to the Insolvency Act into the Insolvency Amendment Bill, currently with the committee.

Mr Basset responded that it would be possible to make that change. He noted that this Bill had been drafted prior to the drafting of the Insolvency Amendment Bill.

Mr Jeffery wondered whether all the technical amendments would be necessary. He noted that provision had been made elsewhere regarding the fact that SIR has become the CIR. He added that the same applied to the UIF Act, and stated that other such references could probably be found in other legislation.

Adv De Lange felt that there was still a need to introduce the amendments as the clauses in this Bill would be catch-all clauses.

Clause 3
Ms Ross explained that this clause would address S 36 of the Magistrates Court Act in terms of which MCR 49 applied. She said that the court in Venter v Standard Bank held that MCR 49 (5) went beyond the requirements of the law. As such, this clause would attempt to ensure that the benefits of MCR 49 (5) remain available because S 36 MCA would bring the rule in line with the Venter judgement.

Adv Masutha wondered whether this amounted to ultra vires.

Adv De Lange explained that the rule was ultra vires in the legislation. The result of the amendment would be to bring the rule within the legislation by making it ultra vires. He pointed that although this had been the practice for a number of years, the aim would be to legislate it.

Clause 4
Ms Ross stated that in S v Manamela, S 37 of the General Law Amendment Act was brought in line with S 35 of the Constitution.

Adv De Lange explained that this would be an amendment similar to one they had done before by changing a legal presumption into an evidentiary presumption.

Clause 5
This clause would address S 1 of the General Law Amendment Act dealing with the custodial provision. A number of courts had applied this provision only in relation to sole custodial parents. However, because there is no difference between the rights of sole custodian parents with those of custodi simplicita. Thus it would be necessary to extend the remedies of S 1 to these parents.

Adv De Lange added that the possibility of imprisonment would also be included.

Ms Camerer wanted to be sure that the Department of Social Development had made the same enactment. She pointed out that the provision would be fairly far-reaching.

Ms Ross said that they would possibly have to raise that issue.

Adv De Lange was not sure that there really would be a problem. The fact that S 1 had been interpreted to apply only to one type of parent in itself created certain equality problems.

Ms Camerer said that they should have the Department of Social Development's consent.

Adv De Lange explained that the issue was merely a legal one. Nevertheless, he directed Ms Ross to get the view of that department.

Ms Camerer stated that there was obviously a reason for interpreting the provision in relation only to sole custodian parents. Thus the amendment could result in a great impact.

Adv De Lange said that the clause merely dealt with criminalisations.

Adv Masutha felt that one would not anticipate any major disputes with social services over the technical issue. The issue of child custody had been the subject of fierce disputes. He did not think that the amendment would either improve or deteriorate the situation in any way.

Adv De Lange directed Ms Ross to give the department approximately 3 days to respond because they were dealing with a technical issue. He added that it was a court order and the amendment would make the provision legally sound. He noted that in any event, the Constitutional Court would not read the word 'sole' into the legislation.

Adv De Lange wanted to know whether contempt of court orders would usually be heard at the MC level.

Mr De Lange (Department) replied that it was not always the case. He added that the amendment would reduce the position to a simple offence that could be tried in the MC.

Adv De Lange asked whether the removal of Clause 4 would not have the effect that the matter would be heard in the HC.

Mr De Lange explained that it was not the case because they were dealing with a criminal offence.

Clause 6 to Clause 11
Ms Ross referred to the South African Law Commission Act of 1973 and said that Clause 7 amended S 2 of the SALC Act by emphasizing that the Commission deals with law reform. She added that Clause 9 amends S 7 of the same Act, whilst Clause 8 amends S 3 of the Act. She noted that the Commission deals with a large volume of work.

Adv De Lange stated that there provision made allowance for 8 persons.

Mr Basset agreed. However, he explained that S 3 (1) (c) of the SALC Act limits the number to 3. He noted that there were already provisions that dealt with the appointment of full time members.

Ms Camerer asked why. In addition, she wanted to know how the change to S 9 (2) had come about with regard to the five month period.

Mr Basset responded that this was in line with the reporting requirements in terms of the Public Finance Management Act.

In reply to Adv De Lange asking why the figure had been increased to 8, Ms Ross said that the Commission was dealing with an increased volume of work. It was noted that the Commission had made the request.

Clauses 12 and 13
Ms Ross referred to the Gatz case and explained that the court had envisaged amendments to S 415 and to S 417 of the Companies Act as held by the Levin case. The court had held that S 415 (3) and S 415 (5) violated S 35 of the Constitution. Thus the amendment envisaged that Clause 12 would give effect to that. The S 417 amendment was derived from the Levin case.

Adv De Lange was not sure if the department had correctly captured the principle. He was worried with the drafting because the provision meant that voluntary responses would not be admitted into evidence, and said that this could not be right. He wondered whether the committee had dealt with a similar provision in the TRC Act. As such, he directed Ms Ross to refer back to the Act in order to bring this provision in line with already drafted provisions.

Adv De Lange added that the S 417 amendment should be fine.

Mr Swart requested the court cases.

Clauses 14 and 15
Ms Ross explained that these clause amended S 77 and S 78 of the CPA dealing with the capacity of accused persons by giving effect to the Mental Health Act of 2000, although the Act is not yet in operation. She added that these amendments would become operative upon that Act coming into operation.

Adv De Lange emphasized that the committee had passed these amendments in 1995. Thus he could not understand why they were not yet in force.

Mr De Lange explained that they were dealing with consequential amendments.

Adv De Lange said that he was not going to look into the clause because he was sure that it was correct. He wanted to know whether comment had been sought from the Health department.

Mr Basset explained that the two departments had dealt with the Bill in conjunction.

Ms Camerer asked whether the amendment could be placed in the CPA Bill.

Adv De Lange considered this possibility and explained that the decision would be made when approaching 15 September 2002. He wanted the department to confirm that they were 100% sure that the approval from the Health department had been received.

Clauses 16 to 19
Ms Ross explained that Clause 16 allowed for a new S 40B to be inserted into the Attorneys Act. Clause 17 would amend S43 the Attorneys Act of 1975. Clauses 18 and 19 were purely technical amendments.

A document pointing out the changes had been prepared for the benefit of the committee.

Adv De Lange asked whether S 40B made provision for the UIF. In addition, he wanted to know the effect of the removal of subsections 2, 3 and 4.

Mr Basset explained that the aim would be to remove the structure provided by those provisions because it had resulted in an administrative nightmare.

Adv Masutha felt that maintaining the liquidity of the fund would be beneficial. However, he wanted to know whether the introduction of private insurance was a new phenomenon.

Adv De Lange stated that the amendment would make it a new phenomenon.

Adv Masutha wanted to understand whether the liability would be in terms of the contract entered into between the fund and the private insurer.

Adv De Lange affirmed that position. He added that the contract would be between them and that the attorneys would in effect pay.

Adv Masutha asked which would be the applicable rules in situations where affected parties would claim against the fund.

Adv De Lange explained that it was a professional indemnity, which could even have an excess. He said that the insurance company would cover the liability either fully or to a certain extent, and that the fund would not affect interested parties. Only the practitioners would be affected, and a degree of assistance would be provided by the insurance company in the compensation of persons.

Adv De Lange did not think that the situation was incorrect. Rather, clients would be assisted in instances where attorneys would not be able to provide compensation.

Adv Masutha confirmed whether the contract would at not time be between the individual attorney and the insurance company.

Adv De Lange responded that the contract would be between the Fidelity Fund and the insurance company.

Adv De Lange wanted to know whether Clause 19 dealt with the FF.

Mr Basset agreed. He added that the provision involved consequential amendments.

Adv Masutha asked whether the relationship between the attorney and the FF would be affected in any way.

Adv De Lange replied that it would not - they were dealing with a simple clause where the contract would be between the practitioners and the insurance company.

Adv Masutha confirmed that there would be a relationship between the attorney, the FF, and the private insurer. The attorney would have a claim against the FF, and a third role player had now been introduced.

Adv De Lange explained that the contract between the three parties would regulate the situation. The lawyers, comprising of the attorneys profession, own the FF. If they sign a contract that places them in a worse position, it is their fault. He emphasized that the committee could not regulate for such a position.

Adv Masutha stated that his ultimate interest would be where the attorney has insufficient funds.

Adv De Lange responded that nothing else in the FF would be changed by this provision. He added that if anything more had been added.

Mr Basset added that S 26 of the AA dealing with the conditions of payment had not been changed.

Ms Ross pointed out a mistake in S 44 of Clause 18. She stated that "prior to the date" should read "prior to the commencement of the JMA Act".

Clause 20
Ms Ross said that S 63 of the CPA would be amended with the insertion of S 63B (a).

Adv De Lange referred to the mess up with the "Ms Chohan Kota clause'' that was now being removed. He did not find any problems with this.

Mr Jeffery presumed that the Minister of Correctional Services was happy with the amendment.

Mr De Lange reminded the committee that the two committees had sat together and reached an agreement on the matter.

Clause 21
Ms Ross explained that this involved a similar amendment to that in the AJA Act. She added that they would look into the question of training.

Mr Jeffery did not see the need for two separate amendments. Thus he proposed that they either delete that in AJA Bill and place the relevant amendments in Clause 21, or vice versa.

Adv De Lange stated that it would be possible to make such amendments. He noted that the department had not carefully thought through the issues.

Mr Basset responded that it was a question of language.

Adv De Lange said that it would be problematic to handle a Bill in this manner.

Mr Jeffery asked for the languages that the AJA Bill would be translated into.

Mr Basset replied that they were English and Xhosa. He added that the Equality Bill would be translated into English and Zulu.

Ms Ross concluded by stating that since approaching Cabinet, they had received proposals for further amendments.

Adv De Lange wanted to know what the proposed amendments were.

Ms Ross responded that they included the appointment of the DPP and the Chief Master, and amendments relating to the Moseneke judgement. She explained that they would have to engage with the office of the Director of Prosecutions in order to ensure compliance with the Moseneke judgement before December 2002.

Adv De Lange said that this would involve a simple amendment and stated that the amendment should be put in a separate Bill in order to fast-track the process.

Mr Jeffery wanted to know when the Moseneke judgement had been passed.

Adv De Lange responded that it had been passed a while back. However, the deadline had been moved to December 2002. He explained that they would deal with the judgement in a few necessary clauses because only simple amendments were involved. He pointed out that Common Law intestate succession cases could immediately be controlled by the Masters Office and not by the Magistrates as was the previous position. He added that the magistrates would retain an advisory role. He stated that the Bill was not even in Cabinet yet, and as such they had to move fast.

Mr Jeffery said that it would help if the amendments were introduced in a separate Bill. He proposed that the department send the Bill to the State Law Advisor before taking it to the Cabinet in order to avoid delays. Adv De Lange added that they would have to obtain permission from Cabinet before doing so.

Adv De Lange stated that most amendments were fine, although they would probably need to move a few provisions around. He noted that: -
- They needed a letter from the Health department.
- It would be necessary to confirm that the amendments to the Companies Act had been dealt with correctly.
- The press statement of 13 September 2002 would have to be given to the Law Society and to the FF in order to receive comments.
- A response from the Social Services department would be necessary.

Adv De Lange pointed out that they would probably pass the vast majority of the Bill this year. He congratulated Ms Ross and said that he hoped to see her again in the committee.

Regulation of Interception of Communications Bill - 6^th draft
The Committee went over the new draft, the Sixth Draft of the Bill to ensure that the changes requested by the Committee to the Fifth Draft had been effected:

Clause 1 - Definitions

Ad definition of applicant
Adv De Lange stated that there was a further addition - the inclusion of the Independent Complaints Directorate (ICD) of the police. They would not be given the similar status as the police although they would be applicants only in so far as they could apply to judges.

Ad definition of archived communication related direction
Mr Labuschagne explained that the application had been combined.

Ms Camerer wanted to know the reason for the exclusions but Adv De Lange stated that they would be dealt with elsewhere.

Ad definition of authorized person
Mr Labuschagne explained that the result of the insertion of the ICD was that S 26 (1) would be amended through the insertion of S 16 (1) (b). He pointed out that as this was a first attempt, the amendment could be changed.

In reply to Adv De Lange wanting to know what happened to the Directorate, Mr Labuschagne said that they were also members of the NPA.

Adv De Lange wondered whether the provision would suffice. He preferred the phrase "member of the NPA or Directorate".

Mr Labuschagne stated that this would then require compliance with the Head of the Directorate.

Mr Landers was not happy with the inclusion of the Defence Force. He explained that their mandate did not extend to the ICD type investigations.

Adv De Lange added that the inclusion was also wrong with regards to the definitions. He explained that reference had been made to bodies with the aim of investigating crimes, such as the NPA, the Scorpions and the police force.

Mr Landers said that the ICD dealt with crimes such as those dealt with by the police force. Thus they would also use resources used by the police force.

Adv De Lange noted that the Head of the NPA was the Head of the Directorate.

Mr Landers suggested the removal of the defence force from the provision.

Adv De Lange proposed the insertion of "after consultation with the police service or the national director in that law enforcement officer is a member of the prosecuting authority or the directorate". He stated that this would be very clear. He wanted to know where else the ICD had been mentioned.

Mr Labuschagne said that this was the only reference.

Ad definition of authorized person
Adv De Lange said that the ICD would fall away under assistance and not under execution.

Mr Labuschagne wanted to know whether they would assist in the execution, as provided by subsection (a) (ii). He did not think that the intention had been correctly captured in that regard.

Adv De Lange stated that the department had incorrectly drafted the provision. The aim would be to provide that in cases where the ICD has direction, the ICD must be assisted by the law enforcement officers in subsection (b). Nevertheless, he found the provision to be satisfactory as it stood because it did not necessarily provide that the ICD would provide the assistance.

Ad definition of authority
Adv De Lange explained that this had been included as the result of the exemption that had been created.

Ad definition of business
Adv De Lange imagined that both private and public bodies would also be defined.

Mr Labuschagne agreed and referred them to this definition under "system controller".

Ad definition of constitution
There were no comments from the floor.

Ad definition of customer
Adv De Lange clarified that pre-paid contracts would be included into the contracts. He noted that although there would be some overlap, they would retain this inclusion for safety purposes.

Ad definition of defence force
Adv De Lange stated that this involved a technical amendment.

Ad definition of direction
Adv De Lange explained that the concept of a supplementary direction had been removed.

Ad definition of fund
Adv De Lange stated that the ISP Assistance Fund would become the Certain ISP Assistance Funds.

Mr Labuschagne was not sure where to include the word 'certain' although he acknowledged the need for the word.

Ms Camerer wanted to know whether the committee wished to change the name of the fund.

Adv De Lange replied that they did not because the fund had been correctly described.

It was decided that the word 'certain' would be inserted.

Ad definition of independent complaints directorate
Mr Labuschagne confirmed that the SAPS Act had been defined.

Mr Jeffery referred to the bracket surrounding 'interception device' on page 4[?] of the Bill.

Mr Labuschagne could not figure out the intended meaning.

Adv De Lange explained that interception device had been defined, and then exclusions were listed. However, his worry was that provision had been made for certain listed equipment. This provision would therefore completely exclude all equipment used in daily functions. He stated that the provision had clearly been taken from another country, and that the provision was clearly for another country.

It was decided to remove the phrase because it did not fit into the Bill.

Ad definition of interception direction
Adv De Lange noted that the previously excluded combination of orders had now been included. He noted Mr Jeffery request that they refer to judges as designated judges.

Mr Jefferey said that the aim would be to ensure the distinction between normal judges and judges designated in terms of this Act.

In response to Ms Camerer wondering whether the meeting held during the previous week had been more in the nature of an ANC study group, Adv De Lange said that although the opposition had all been invited, none of them had come.

Ad definition of law enforcement officer
Adv De Lange said that the definition did not look right.

Mr Labuschagne explained that the definition in the Defence Act had defined a member.

Mr Jeffery noted that because Parliament was in the process of repealing the Defence Act, all references to that Act would have to be removed.

Ad definition of monitor
The floor was satisfied.

Ad definition of organized fashion
Adv De Lange explained that the definition had been moved to the definition of serious offences.

Ad definition of pre-paid
Mr Labuschagne proposed that this definition be deleted as there is only one reference to the word in the Bill. He referred the committee to the definition of 'customer' in that regard.

Adv De Lange showed concern with the fact that pre-paid contracts were oral contracts.

The proposed deletion of the definition was flagged.

Ms Camerer proposed the inclusion of a 'pre-paid mobile cellular telecommunications contract'.

Adv De Lange explained that her suggestion referred to written contracts. However, they were dealing with oral contracts.

Ms Camerer responded that her proposal referred to oral contracts.

Mr Labuschagne found that the definition itself was incorrect because even Telkom had pre-paid contracts.

Adv De Lange flagged the debate.

Ad definition of prosecuting authority
Mr Jeffery wanted to know the reason for the reference to a 'single' NPA.

Adv De Lange directed Mr Labuschagne to remove 'single' and to refer to "the NPA in terms of S 179 of the Constitution'.

Ad definition of designated judge
Adv De Lange stated that the definition would move to subsection (d).

Ad definition of real time communication
The floor was satisfied.

Ad definition of relevant Minister
Mr Jeffery wanted to know what had happened to his proposed amendment.

Mr Labuschagne felt that the amendment would be difficult from a drafting point of view, although he did not have any objections to changing the body of the Bill.

Mr Jeffery asked what would happen then if in 2003 the office of the Minister of Communications has a name change.

Adv De Lange felt that it would not matter. However Adv Masutha thought that the committee was missing the point. He wanted to know what would happen if a portfolio name changes subsequent to the passing of this Act.

Adv De Lange said that the definition would be amended to make reference to the Minister responsible for communications, for instance.

Ad definition of serious offence
Adv De Lange said that the committee would have to look at the inclusions into the Schedule. He wanted to know what had happened to minimum sentences.

Mr Labuschagne responded that they would be covered in the phrase "exceeding 5 years without the option of a fine". He added that maximum sentences would begin at 10 years.
Adv De Lange wondered whether there would be another way to include minimum sentences.

Mr Labuschagne noted that the definition of sedition had been included.

Adv De Lange directed Mr Labuschagne to retain the definition, although he had to move it to number 4.

Ad definition of supplementary direction
Adv De Lange explained that the definition had been removed.

Ad definition of system controller
Mr Labuschagne noted that they had an option between the short and the long definition, and that the long definition had been chosen.

Adv De Lange said that the deletion would not be necessary because the clause made clear reference.

Mr Labuschagne replied that he had not thought of the matter in that way.

Adv De Lange said that there would be no harm in retaining the definition. He noted that the reference to both public and private bodies would encompass everything.

Mr Labuschagne was not sure about that.

Adv De Lange directed him to make the necessary amendments in that regard.

Adv De Lange noted that they had dealt with all the definitions and that most of the amendments were satisfactory.

Mr Labuschagne added that because the sequence of clauses dealing with 'real time' and with 'archive' had been changed, it would be necessary to change all such references.

Adv De Lange gave Mr Labuschagne the afternoon to make all necessary amendments. He congratulated Mr Labuschagne and thanked him for the work. Meeting adjourned.