Regulation of Interception of Communications Bill: deliberations

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Justice and Correctional Services

03 September 2002
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Meeting Summary

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Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
4 September 2002
REGULATION OF INTERCEPTION OF COMMUNICATIONS BILL

Documents handed out:
Regulation of Interception of Communications Bill: Working Document: Draft 6 as on 03/09/02
Statistical Evidence on the Impact of Appeal on the Administration of Justice
Chairperson: Adv J de Lange (ANC)

SUMMARY
The Committee continued looking through the Sixth Draft to check the amendments effected. All clauses of the Bill were approved with minor changes here and there. Clause 53 cannot be finalised yet as its constitutionality has to be checked.

MINUTES

Regulation of Interception of Communications Bill - Sixth draft
The Chair reminded the committee that the basis for the deliberations was whether the amendments they had made at previous meetings were in the current version. The Bill was also being looked at in parts - first the prohibition and then the exemptions.

Chapter 2: Interception of Communication
The Chair noted that the heading had changed. Regarding clause 4, part of it had been removed as the Committee had opted for the South African option, which was something between the Australian and US options.
He inquired as to clause 5(b).

Mr Labuschagne replied that his understanding was that the clause had been flagged and not deleted.

The Chair responded that he had crossed out the provision in his version but agreed to keeping it in the Bill.

Mr Labuschagne explained that the issue was whether (b) was necessary in light of the definition of a "party to a communication".

The Chair felt that the issue was a little different as it involved not whether a person is a party to a communication but whether the person will be participating in that particular conversation. He did was however, satisfied with the clause and checked that the Committee was agreed on the removal of clause 5(c).

Clause 6: Interception of communication to prevent serious bodily harm
The Chair noted that clause 6 had previously been clause 9. He felt it necessary to list exception separately.

Mr Labuschagne said that the provision would be used where, for example, a kidnapper telephoned a third person and it was necessary to intercept and track his movements.

The Chair felt it necessary to have two separate exceptions.

Mr Labuschagne replied that this would effectively mean a duplication of clause 6.

The Chair agreed, but felt that there needed to be an exception in terms of real-time. He noted that other technical amendments made by the Committee had been put into the Bill and that the phrase "serious bodily harm" had been kept. Subclause (b) would remain as it had been originally.

Mr Labuschagne explaining clause 6(2), said that it was a new clause. There were two possibilities for intercepting: when one was directly involved, in which case the SP's would not be involved, and indirectly, where the SP's would have to play a role. The role of the SP's is spelled out in that section.

Mr Mzizi (IFP) questioned why the words "in writing" had been removed from clause 6(1)(ii).

Mr Labuschagne explained that it had been removed because of emergency situations. It would be sufficient for consent to be obtained and felt that if it were not done, the use of the clause would be limited. A clause could be added in the contract for a SIM-card to this effect, but would however be limited to cell phones. Moving on, he explained that subclause (5) was another check and balance and provides that a policeman give an affidavit so that the judge can see its correct.
Regarding subclause (6), given the possibility of evidence being destroyed during a kidnapping, it had been decided to go the safe route of letting the judge keep the records without pronouncing on the admissibility of evidence.

Mr Jeffrey (ANC) raised the example given the at the last meeting of a boat lost at sea and inquired if it were necessary for a person to be party to a communication.

The Chair responded that subclause (iii) would apply and that the person did not have to be a party.

Clause 7: Interception of communication for purposes of determining location in case of emergency
The Chair noted that this clause was previously clause 10.

Mr Jeffrey remarked that the point that had been raised about "serious bodily harm" had been covered. However, the clause did not seem to deal with the emergency situation of a boat lost of the coast and people picking up a signal on a cell phone. Another example was of people lost on a mountain who were trying to phone relatives but could not get through and the signal was instead picked up by rescuers. The clause seemed to only kick in when a person was a party to a communication and not a third person.

The Chair felt that the intention was to find out where that party or person is, so it appeared that it was necessary to be a party to a communication.

Mr Jeffrey referred to clause 7(1)(a) and said that the situation dealt with rescuers who were looking for persons and questioned what good it would be to a person on a boat who could not get through to anybody.

The Chair replied that subclause (a) referred to a law enforcement officer, or a person who was not a law enforcement officer but who informed a law enforcement officer, while subclause (b) was that person who "as a result of information received from another party to the communication (in this section referred to as the "sender")". He did not know why sub(a) was there, other than to say that it must be a law enforcement officer. The real clause was sub(b). The reference to "party" was because it was an easy clause to deal with law enforcement officers and it was clear that one could intercept from the sender although one was not a party to the communication.

Mr Jeffrey posed the scenario of being lost and phoning home only to have a two-year old answer the phone. He could not communicate with the two year old but he had made the call and the police were looking for him. He inquired as to how the clause would give the police the ability to find him when it was necessary to be a party to the conversation and the police were not.

The Chair was of the opinion that the provision states that one is a party to a conversation if one is a law enforcement officer. The clause was saying that only a law enforcement officer may do it.

Mr Jeffrey felt that if one were a law enforcement officer and not a party to the conversation, then interception was prohibited.

The Chair believed the clause to make law enforcement officers automatic parties to the communication via sub(1)(c)(i) and (ii).
The Chair questioned why the word "orally" had been included everywhere.

Mr Labuschange responded that he had been afraid that the clause might be interpreted to mean written request.

The Chair remarked that the intention was to make it clearer and felt that no harm was being done. Moving to subclause (3), he noted that the word "may" had been changed to "must" as the SP's must have no choice in the matter. He noted that the previous transcript had included "all recordings, transcripts and notes" and questioned why that had been removed.

Mr Labuschagne replied that it could be added, but it would be necessary to insert a new clause 7(4)(d).

Clause 8: Interception of communication for purposes of installation or maintenance of equipment
The Chair noted that the clause had previously been clause 11. He remarked that he did not like the clause but mainly because he did not understand it. When Telkom tests lines, they do not listen to calls but only test the signal. He was not sure why subclause (2) was necessary as it referred to "any information obtained" and they should not be obtaining information.

Mr Labuschagne replied that it could be dealt with, if the clause were to be retained, by providing for the clause to apply if a person who is carrying out his duties intercepts a communication.

Mr Jeffrey commented that "interception" meant the aural interception and was more than just hearing but listening and understanding as well. He did not see why the clause was necessary as the employees should not be doing it as it is prohibited and Telkom claims not to be doing it. He preferred Mr Labuschagne's point that it was not an enabling clause, but he did not see why it was needed.

Mr Labuschagne thought it might help to explain the background. The clause had not been inserted at the request of Telkom, but had been come across while researching legislation in other jurisdictions. It had been thought that, from a practical point of view, it might be needed but he did not have a problem with deleting it.

The Chair suggested providing for the monitoring of a signal, where necessary for the performance of duties. The clause would be limited to only this aspect and the rest could be deleted.

Mr Jeffrey was still not convinced that the clause was needed as one was speaking of unintentional cases and "monitor" implied to listen and record. He questioned if the Committee wanted something to enable Telkom officials to listen and record communications.

The Chair clarified that Telkom only monitored signals and not communications. The problem was only the definition of "communication" of which "signal" was a part of. He agreed that he did not see any need for it, but did not see that there could be much danger in putting in the "signal" to make it clear that it did not apply to anything else.

Mr Jeffrey was afraid that it might be used as a loophole and felt that if the clause were to be included it should because of motivation from Telkom or other SP's.

The Chair stated that the clause could not remain the way it was and suggested dealing with it in the same way that ICASA had been dealt with so that it only permitted the monitoring of signals.

Adv Masutha (ANC) said that he was also inclined to agree with Mr Jeffrey. He had always had the problem of not having a lot of faith in Telkom as his phone had been abused to make international calls. He felt that subclause (2) posed a potential problem.

The Chair asked that Adv Masutha not address the clause on the basis that it was currently written. He asked that it be addressed on the basis of creating a more limited clause to monitor only the signal. He asked that the Committee give the issue some thought. One option was to leave out the clause entirely and the other was to limit it as had been done with the ICASA clause and allow the monitoring of signals for work purposes.

Clause 10: Interception of communications authorized by certain other Acts
The Chair, referring to subclause (2), felt that it was a duty of Parliament to overlook regulations.

Mr Swart (ACDP) questioned how it could be made certain that the regulations came to the Justice Committee.

The Chair felt that the Committee should be on the alert to see if the regulations affected them.

Mr Labuschagne remarked that he had seen legislation that provided for regulations to come before a particular committee.

The Chair replied that he did not like doing that but suggested that the Committee pass a resolution that only the portions of regulations that they were interested in, i.e. those regarding interceptions in prisons, should come to the Justice Portfolio Committee.

Adv Masutha (ANC) said that he was part of a subcommittee looking at delegated legislation, from which lots of interesting things had emerged. He wanted to get a sense of whether it was felt that Parliament should have a veto if the contents of a regulation were not in line with the Constitution. Unfortunately, there was not a set of criteria that could be used to determine this. He questioned if Parliament should simply be able to make recommendations or to veto.

The Chair responded that in most cases Parliament had not gone the route of approval but rather the route of submitting and interacting with the department if there was a problem. One Bill does ask for agreement - that was the Legal Aid Guide - and that had been problematic. Now it was asked only that it be tabled and thereafter Parliament had a duty to take it up if necessary. It would be dealt with my way of a resolution of the Committee.

Mr Labuschagne suggested that another option was to delete paragraph (b), which deals with future regulations and in a resolution say that any regulation dealing with interception should come to the Justice Portfolio Committee.

The Chair requested Mr Labuschagne to draft a resolution and commented that it was not a huge problem.

Clause 11: Monitoring of radio signal for purposes of managing radio frequency spectrum
Mr Labuschagne explained that he had distributed a document from the Department of Communications that ICASA not be included in the Bill as it did not deal with interceptions.

The Chair replied that strictly speaking that was true, but ICASA does deal with signals and radio and so it was being dealt with as it was.

Clause 13 Provision of archived or real-time communication-related information
The Chair noted that the concept of "supplementary direction" had been removed.

Clause 14 Provision of communication-related information upon authorization by customer
The Chair noted that the clause had previously been clause 5.

Mr Labuschagne pointed out that the only change had been to include that authorization be given "on each occasion".

The Chair felt that was fine.

Clause 15: Availability of other procedures for obtaining communication-related information
The Chair remarked that the clause had previously been clause 54. No changes had been made except that the references to clauses 15 and 16 were now changed to clauses 17 and 19. he asked if it had been agreed to keep subclause (2).

Mr Labuschagne replied that it had been agreed to.

The Chair reminded Mr Labuschagne to repeat clause 6 in clause 16. it was probably the most important clause as it includes the two prohibitions and the exceptions under the chapter.

Chapter 3: Applications for, and issuing of, directions and entry warrants
The Chair noted that the first change was in the proviso. In Canadian legislation, where it deals with offences, there is also a clause that requires applications to state whether other investigative procedures had been used. The Canadian legislation went further than the South African legislation in that it made it a requirement in the affidavit and also a part of the test. Of the two exceptions that the Canadians have, the second is that it is not necessary to show that other investigative methods have been used when dealing with criminal organisations, i.e. syndicates. It was a very important element as it was not possible to get information about the mafia etc. without using these methods. The proviso here was in the wrong place. Subclause (5)(a) sets out the grounds on which it can be refused and so the proviso should be there. The Asset Forfeiture Unit should also be excluded, as they would also require the power. However, this should not apply to subclauses (5)(a)(ii), (iii) and (iv), which related to the gathering of information.

Ms Chohan-Kota (ANC) felt that the use of the term "criminal organisation" might be limiting as the organisation would have to be named in the application. She recalled that the term "organised crime" had been used in other legislation.

The Chair thought that to be a good point.

Adv Masutha raised concern that subclause (i) might be narrowly interpreted.

The Chair replied that this interpretation would really be left to the judge and if there was a problem it could be adapted. There was room for it to be interpreted widely. Clause 16(5) was one of the most important clauses in the Bill as it contains the test that the judge will use when issuing interception directions.

Clause 17 Application for real-time communication-related direction
The Chair stated that the clause had previously been clause 16. Reference to "supplementary directions" had been removed due to its creating some confusion. The clause had been made applicable to those instances when only a real-time communication direction was wanted. The following clause regulated a combined direction and clause 19 applied to only archive-related information. Clause 17(1)(a) had been removed for obvious reasons as it was not intended to deal with that anymore. Subclause (2) now reiterated verbatim what used to be under archive-related information in what was previously clause 15.

 

Clause 19 Application for archived communication-related direction
The Chair questioned what had been done with subclause (2).

Mr Labuschagne replied that he had moved all the information in clause 17 and added it to the bottom of the subclause.

The Chair continued that subclauses (3) and (4) had not changed. A minor change had been made to subclause (5), while (6) and (7) remained the same. Subclause (9) had changed and requires a judge to keep records of all copies of applications.

Clause 20: Amendment or extension of existing direction
The Chair noted that the close had previously been clause 18. the only change had been made to subclause (6) where the words "and 22" had been deleted but "and 24" had been kept.

Mr Labuschagne explained that the reference to clause 24 was a mistake and should no appear there.

The Chair responded that the "and 24" must be deleted and the tense of the subclause changed. He extended a warm welcome to a guest MP from the Australian legislature and explained that the Australian legislation had been used quite extensively in the Bill and had been quite useful as it was clear that the laws of other countries had been researched thoroughly during the drafting stage.

Mr Labuschagne asked that the Committee refer to a separate document for clauses 21 to 25.

Clause 22: Application for, and issuing of, entry warrant
The Chair stated that the clause had previously been clause 20 and that provision had now been made in it for a "bug" to be removed once the period of direction has lapsed.

Clause 23: Oral application for direction, entry warrant, oral direction or oral entry warrant
The Chair remarked that extensive changes had been made to the clause. The words "if by" had been changed to "by and" and provisos had been removed. Subclause (2) had also been removed.

Mr Labuschagne explained that the clause provides for who may make an application and because there were so many references to other applications, those words had been removed and replaced by "an applicant entitled" and so enabled subclause (2) to be removed.

The Chair noted that subclauses (1) to (5) dealt with oral applications while subclauses (6) and thereafter dealt with oral applications and oral orders. Subclause (3) refered to the grounds on which an oral application could be made, while subclause (4) contained the test that would be used to determine that. Subclause (5) contained the other sections that would apply. There needed to be a subclause (6) that provides for an oral direction. He felt that it should not be put into subclause (3) as that was still the test. Subclause (6) would become the written order, while the present subclause (6) would change to subclause (7) providing for an oral order. He asked that subclause (a)(i) be removed but for subclauses (a)(ii) and (iii) to be retained.
He summarised the changes made by saying that a new subclause (6) had to be created which would allow for an oral application to be granted a written direction and for the present subclause (6) to be changed to subclause (7) and for subclause (a)(i) to be removed.

Clause 24: Reports on progress
The Chair stated that what was really wanted was a subclause (b) to added, which would provide for, in a situation where a "bug" must be removed from a person's house once the direction had expired, to be put into a report so that there was some level of accountability.

Mr Labuschagne responded that the meaning of clause was the same. It had just been made shorter.

Clause 25: Cancellation of direction, entry warrant, oral direction or oral entry warrant
The Chair noted that the clause had previously been clause 23 and the changes made were mostly stylistic and contextual, until subclause (2). He asked Mr Labuschagne what was being removed in subclause (2).

Mr Labuschagne explained that because in the previous clause 23 the judge could confirm, amend or cancel a direction, subclause (2)(ii) had to be deleted because its meaning here was the same. That part had been included in the actual application in clause 23.

The Chair agreed.

Chapter 4: Execution of directions and entry warrants
Clause 26: Execution of direction
The Chair stated that subclause (b) had been removed but aside from that nothing in the clause had been changed.

Clause 27: Execution of entry warrant
The Chair pointed out that the clause had previously been clause 25 and that subclauses (2) and (3) had been removed. Only the original clause had been retained and he was happy with it.

Clause 28: Assistance by postal and telecommunication SP's
The Chair explained that the clause had previously been clause 26 and some changes had been made to it. He asked why words had been removed from subclause (2)(a)(ii).

Mr Labuschagne replied that it was because those words were already included in subclause (2)(b)(ii).

The Chair asked that the words "as soon as practicable" be replaced with "must immediately".

Ms Camerer (NNP) asked if the Telkom considerations regarding costs had been taken into account.

The Chair replied that the considerations had been given regard but that Telkom must remember that its main shareholder are the people of South Africa.

Ms Chohan-Kota raised concern over the use of the word "immediately".

The Chair asked that "immediately" be placed after "concern" in subclause (2)(a)(ii). As far as archived information was concerned, the words "and within the period stated" would be added to subclause (a)(i) but that "immediately" would apply to real-time information.

Clause 29: Assistance by decryption key holder
The Chair stated that the clause had previously been clause 27. The proviso and subclause (2) had been removed.

Chapter 5: Interception capability and compensation
The Chair remarked that there had been violent objection from the Minister of Communications to including ICASA in the provision. The Department does consult with ICASA on a regular basis. However, he had looked at the legislation governing ICASA and found that they have a say on equipment that is used. He could not see that any harm was being done by adding ICASA after the consultation stage. He asked the representative from the Department of Communications to relay the message that the violent objection had been rejected and reference to "the Authority" would remain in the Bill.

He continued that one other outstanding issue was the link. It appeared as though the link is usually paid for by the State but there are also that the State does not pay for, such as the cost of calls. In Australia, the cost of transmitting the intercepted product from the point of interception to the delivery point is borne by the SP, however the like is paid for by the State. The link was part of the interception centre so it was dealt with there, however the costs were dealt with under clauses 30 and 31.

Mr Labuschagne commented that they would then be responsible for sending the duplicate signals to the interception centres.

The Chair agreed and said that when the matter had been put before the Cabinet it had been done so on the basis that the links would be paid for by the State. He had seen noting to indicate that the Cabinet would be rejecting that position. He asked that Mr Labuschagne draft it like that and to include something on duplicate signals.

Afternoon session:
Clause 31
It was noted that this clause used to be Clause 29, that 'remuneration' had been replaced with 'compensation', and subclause (b) had been removed.

Chapter 6
This chapter was skipped as Mr Labuschagne, the drafter, was still in the process of redrafting the chapter.

Chapter 7
Clause 39
The Chair explained that 'of that page' had been removed in Clause 39 (1) (bb)

The Chair noted that Ms Chohan Kota (ANC) had brought to his attention that the second clause, dealing with service providers, would also require the recording of cell phone numbers. He believed that she was correct and they needed to ensure this amendment was effected.

The Chair added that a new subsection 2 had been inserted because the clause had been broken away from subsection (bb).

The Chair noted that all the amendments that the committee had asked for in Clause 39 (3) had been effected.

The Chair was pleased with the manner in which Mr Labuschagne had effected the amendment to Clause 39 (4) which had been narrowed to make provision only for the inclusion of information necessary to make an application.

Clause 40
The Chair stated that this is where the point raised by Ms Chohan Kota would be relevant.

Mr Labuschagne pointed out that the required information was listed in Clause 39(2).

The Chair felt that it would be necessary to specify this in Clause 40. He proposed the repetition of 39(2) in order to include all numbers.

Mr Labuschagne referred to SIM-card numbers and Mr Jeffery pointed out that cell phones used serial numbers as opposed to phone numbers.

The Chair said that they would have to be clearly included and Mr Labuschagne was directed to use the technically correct term.

Clause 41
The reference to 24 hours has been removed. In addition, subsection (c) had been inserted.

Mr Jeffery wondered whether the reference to 'submitted to Parliament' would be correct. He preferred 'tabled in Parliament'. Mr Labuschagne was asked to ascertain the correct term to use.

In answer to Mr Mzizi asking what the procedure in terms of Clause 41 (2) would be, the Chair explained that where there is an offence, there must be a police report.

Chapter 8
Clause 42
It was noted that everything remains the same except 42(3) has been deleted.

Clause 43
It was noted that this used to be Clause 41 and that 'appropriate to' had been deleted.

Clause 44
The Chair said that listed equipment used to be found in Clause 42. The word 'surreptitious' had been deleted because no one had known what it meant.

Mr Landers referred to the letter that had been received from the Directors General and wondered whether the responsibility in this provision should not be that of the Minister of Communications.

The Chair said that the letter did not apply to this provision. Nevertheless, he did have a problem with fragmenting functions.

Mr Jeffery was concerned whether the Justice Department would have the necessary skills.

The Chair did not think that that issue was the problem. Rather, the problem was the clauses that would follow from the provision. In that regard, he felt that it would be incorrect to remove the power from the Justice Department. He noted that one need not be an expert because all that would be required is that all the equipment is listed.

Mr Jeffery said that he would have thought that they would be concerned with the idea of the Justice Department dealing also with the exemptions. Referring to 46(2), he stated that technical as opposed to legal requirements were the issue.

The Chair felt that the responsibility would have to be given to the Justice Minister. He did not want to split functions amongst a number of Ministers. He pointed out that the Justice Director General would agree to the splitting of the functions. However, the DG preferred retaining a measure of control within the Justice Department. Nevertheless, the DG said that the matter could be taken up with the Minister.

Both Mr Landers and Mr Jeffery agreed with that idea.

The Chair noted that he hesitated to hand the power over to another Minister.

Mr Jeffery was concerned with the technical expertise of the Justice Department. Nevertheless, he would be satisfied should the matter be taken up with the Minister.

Clause 45
This used to be Clause 43. The Chair was satisfied with the changes.

Clause 46
This used to be Clause 44. The exemptions have been limited in terms of subparagraph (iii).

The Chair wanted to know where the end of Clause 46 (b) (iii) was. He wondered whether the word 'determined' should have been retained. He noted that 'consultation with the other relevant Minister had been removed'. The Chair said that the decision extended only to Clause 46 (1).

Mr Labuschagne stated that the committee had made this decision in a previous meeting and that the proposed amendment also applied to this provision.

The Chair confirmed that the discretion was on the Minister. Mr Jeffery added that consultation had been referred to in Clause 46(1)(a). There were no changes to subsection (b).

The changes to 46(2) were due to the fact that 43(3)(b)(ii) had been moved to 46(2). Thus the same principle would now be captured in a different provision. Mr Labuschagne explained that he could not use the words that had been used in 46(3)(b)(ii). Thus he reformulated the words through the addition of "lawful purpose".

Mr Labuschagne proposed the deletion of the entire subsection (b).

The Chair felt that Mr Labuschagne should have provided "in the case of an exemption under subsection 1(a)(ii), the purpose for which the listed equipment in respect of which the application for exemption is made…".

Mr Labuschagne proposed stating "if s/he is satisfied that the purpose….or advertised is reasonably necessary, and such exemption is in the public interest".

The Committee accepted that subsection (b) would be deleted and would be replaced with the amendment stated above.

The Chair noted that subsections 6, 7 and 8 had now become subsections 5, 6 and 7, although their content had not been changed. He found the amendments to be clear.

Ms Camerer wanted to know what would happen where the two month deadline had not been met in the case of subsection (2).

The Chair responded that subparagraph (e) would apply.

Mr Labuschagne wanted to know whether it would really be necessary for Parliament to approve the certificate.

The Chair explained that it was called 'transparency'.

Mr Labuschagne wondered whether that did not occur with the approval of exemptions.

The Chair said that would be the case if they were dealing with ordinary equipment. However, Parliament would have to approve the granting of exclusions to certain persons.

Ms Camerer asked why deadline periods had been included.

The Chair explained that it was the same position prior to the amendment. However, provision would now be made for factors such as recess.

Ms Camerer wanted to know whether Parliament had been dealt with in the same manner in other laws.

The Chair affirmed that position. He added that if it was not for this, they would simply require submission without approval. He stated that it would be necessary to provide certainty in the law through the creation of a more transparent process and through the introduction of legal consequences.

Chapter 9
Mr Labuschagne noted that he had not completed amendments to Clause 53.

Clause 47
The Chair explained that reference to permission and to consent in 47(3) had been removed.

Clause 48
The Chair stated that judges of both the High Court and the lower courts were included as they had originally been left out.

Clause 49 and Clause 50
The Chair explained that these were two new clauses. He noted that whilst the position in Canada is that there are no prohibitions and there are immediate offences, prohibitions and immediate offences would be created for South African law. Provision would be made for exceptions.

Mr Labuschagne noted that the monitoring of signals had been added in order to cater for ICASA.

The Chair stated that the provision should state - does not apply to ICASA monitoring.

Clause 50
The Chair said that Clause 16 should be added to Clause 50(2).

Clause 51
The Chair explained that whilst there were two offences in terms of the previous Clause 51, the amendment simply spelt out the situation and no new principles were included.

Mr Delport wanted to know whether an offence will be committed where a man installs a listening device upon the suspicion that his wife is having an affair.

The Chair responded that it would be an offence as a person who is not party to a conversation may not record the conversation.

Clauses 52 to 54 were flagged as Mr Labuschagne will have to confirm whether these clauses are in line with the Manamela judgement. He was not able to brief the committee at this stage because he was still in consultation with Mr Nel.

Clause 52
This used to be Clause 47. The Chair had a strong feeling that the provision would be found to be unconstitutional through the creation of a legal presumption. He directed Mr Labuschagne to look at the wording of the Manamela judgement, and to place an evidentiary burden on the second clause.

The Chair added that the previous Clause 48(2) should be placed into the second clause, thereby providing an evidentiary presumption for both Clause 47 and Clause 48.

Mr Mzizi wanted to know whether one could be convicted on the presumption.

The Chair explained that it was an evidentiary presumption, thus all one would have to do is provide a satisfactory account in order to prevent a charge from following.

Clause 53
This used to be Clause 48. The Chair found that that provision would possibly be satisfactory.

Clause 54
This used to be Clause 49. The Chair had difficulty with the inclusion of 'just cause'.

Mr Labuschagne suggested the removal of 'just cause' so the problem would fall away.

The Chair replied that this would not be the case if the aim would be to include a presumption.
He noted that the provision was one in which a presumption would probably be included. Thus he directed Mr Labuschagne to remove the phrase and include a presumption, and to effect a similar amendment to Clause 48.

Clause 55
This used to be Clause 52. It has been broken into two which the Chair believed was clearer.

Ms Camerer felt that Clause 55(1) raised many questions because it would not be usual for persons to report loss, theft and destruction of phones.

The Chair stated that Clause 41 was created for this reason.

Ms Camerer acknowledged that but wanted to know to whom would people report this.

The Chair said to the police. Mr Landers agreed.

Ms Camerer wondered whether this would be realistic.

The Chair stated that a failure to enact this provision would mean that all the other clauses that aim to create a paper trail would become worthless. He emphasized that the reporting of crimes would be necessary.

Ms Camerer said that the police would think that a person is 'nuts' for reporting a broken phone.
The Chair stated that the point was that Clause 41 read with Clause 52 required one to do that.

Ms Camerer emphasized that this would not be realistic.

The Chair said that they would have to do that.

Ms Camerer stated that the police would never comply with the Act in that regard.

The Chair said that although compliance may not happen overnight, it would over time.

Ms Camerer explained that individuals drop phones on a daily basis.

Mr Mzizi said that failing to include this provision would make the situation more difficult.

The Chair explained that the reality was that one need only report a phone that is completely broken. He said that they were dealing with the situation where the phone could possibly be used in the completion of a crime.

Ms Camerer wondered if there was really a need for the amendment.

The Chair explained that criminals would use this as an excuse. He added that they were actually protecting clients by providing them with a defence where their phone is used in the commission of an offence.

Clause 56
In answer to the Chair asking what had happened to the revoking of a licence, Mr Labuschagne said that it had moved to Clause 57.

The Chair wanted it placed in Clause 56. He noted that the revoking of a licence, as per Clause 57 although now moving to Clause 56, had not been changed. The only difference is that ICASA had been clearly spelt out.

Clause 57
The Chair explained that 57(1) and (2) had been moved, and that "if no…..equipment" had been removed. He was satisfied with these amendments.

The Chair stated that Clause 57 (2) had been correctly amended and noted that Clause 57 (3) was a new clause (previously it had been 57(4)).

The Chair wondered about the reference to 'destroyed' in Clause 57(5). He wondered whether in the event of confiscating a large amount of expensive equipment, it should not be given to the SAPS with a certificate of exemption for the SAPS to use. He wanted to know whether they always destroy with forfeiture and noted that they were dealing with expensive equipment.

Mr Labuschagne explained that this would not always be the case as goods would usually be auctioned. Nevertheless, he did not think that auctioning would be appropriate in these circumstances, and proposed the donation of the equipment to the Asset Forfeiture Fund in terms of this Bill.

The Chair wondered what other options they had. He noted that the Asset Forfeiture Fund would not be a bad idea.

Mr Landers liked the idea of allowing the SAPS to use the equipment.

The Chair cautioned that it would have to be legal for them to use the equipment.

Adv Masutha cautioned that in light of the World Summit on Sustainable Development, the committee should not encourage the destruction of such equipment where this could result in harm to the environment through the omission of dangerous substances.

Mr Mzizi wondered how once illegal equipment could become legal.

The Chair explained that there would be a proper system of accountability.

Mr Mzizi felt that illegal goods should be destroyed.

Mr Landers felt that the use of the confiscated equipment should not be automatic.

The Chair proposed the insertion of a clause where approval could be sought from the Minister to use the equipment. A provision would have to be added for the exemption and the equipment would then be destroyed where this is not granted.

He directed Mr Labuschagne to add into subsection (4) the option:
- (b)(i) one may apply to the Minister for an exemption for possession, and
- (b)(ii) the equipment may be destroyed where the exemption is denied or where the certificate in terms of subsection (a) fails. He noted that in any case, the committee would have to approve the certificate.

The Chair pointed out that 55(3) was now 55(5). However, this did not make sense to him.

Mr Labuschagne explained that the provision meant that where there is an exemption, the service provider may apply in terms of 55(6) for the return of the equipment.

The Chair was satisfied with the amendment as the provision was clear.

Mr Labuschagne wanted to know what would happen to equipment that would not be exempted.

The Chair explained that it would fall into the test where it is either destroyed or used by the SAPS. He added that Mr Labuschagne may wish to include the amendment in a different clause.

Chapter 10
Clause 61
This used to be Clause 51. The provision has not been changed.

Clause 62
This used to be Clause 60 and some changes had been made to the content of the provision. A decision still has to be made whether or not to include a date.

The Chair stated that the committee had basically passed everything in the Bill. He directed Mr Labuschagne to ensure that only the most recent amendments are highlighted when the Bill comes before the committee again. He said that the committee would deal with this Bill again on Thursday 12 September 2002 and Friday 13 September 2002.

The meeting was adjourned.

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