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JUSTICE AND CONSTITUTIONAL DEVELOPMENT
12 September 2002
REGULATION OF INTERCEPTION OF COMMUNICATIONS BILL
Documents handed out:
Regulation of Interception of Communications Bill
The Committee considered the amendments made from chapters 1 to 3. A narrow exemption was created in terms of clause 11 for ICASA to monitor signals, radio frequencies, transmission spectrums. Provision was made in chapter 3 to allow for law enforcement agents not to show that other investigative measures had been taken when applying for a direction relating to "organisations or syndicates involved in organised crime".
The Chair noted that he had received a fax from lawyers of Buys Inc. appointed by the Tertiary Education Providers to give a legal opinion on the Bill. The fax asked the Chair for his opinion on the Bill and he thought it ironic, given the fact that the lawyers had been asked to give their opinion on it.
Ms Camerer (NNP) said that her caucus supports the main provisions of the Bill although they had not got a copy of the Bill. She had been mandated to highlight reservations in her speech but was generally in agreement with the Bill.
The Chair outlined the approach that would be taken by the Committee would take - starting at the beginning and continuing until Chapter 6, which had not been discussed.
Mr Labuschagne, legal drafter for the Department of Justice, explained that the asset forfeiture unit had been defined under "law enforcement agency" and that he had begun to indicate all the cross-references up to a point but had then decided that they were not necessary.
The Chair felt that "monitoring device" was included under "interception device" so to give it its own definition was to repeat it. He asked that it be left where it was but for Mr Labuschagne to check that it was not superfluous.
Mr Mzizi (IFP) arrived and announced that he had a mandate supporting the Bill, although there were some reservations regarding oral applications.
The Chair commented that the definition of "relevant Minister" had been cleverly done.
Chapter 2: Interception of communications
Clause 6: Interception of communications to prevent serious bodily harm
The Chair stated that clause 6 had been split into two parts. Subclause (4) had been placed in a block to indicate that it had been included in the back of the Bill as it related to offences. Subclause (5) had been deleted, but the Chair asked that it be retained without subclauses (b) and (c) and for subclause (3) to become sub (6). He also asked that clauses 6(1)(a)(i) and (ii) be removed.
Dr Delport (DP) asked if he was correct in thinking that subclause (4) allowed a policeman who was party to a conversation to intercept the conversation, sub (5) to allow for him not to require a judge's permission to do so and sub (6) to apply in the case of an emergency.
The Chair asked, in addition, for "intercept any communication" to be removed and for subclauses (b) and (c) of subclause (2) to be removed.
Clause 7: Interception of communication for purposes of determining location in case of emergency
The Chair asked why subclause (5)(b) was necessary.
Mr Labuschagne replied that it was necessary, otherwise recordings and notes will never come into the possession of the law after the location had been given.
The Chair felt that that was fair enough and remarked that it put the duty on the SP to hand over recordings or notes that they may come across in the process.
Clause 8: Interception of communication for purposes of installation or maintenance or equipment, facilities or devices
The Chair stated that a narrow exception had been allowed for in that, while interception of communications was prohibited, signals relating to indirect communications maybe monitored where it is reasonably necessary for purposes of performing a duty effectively. This was being done as "signal" was a part of the definition of "communication". The provision was narrow, as it had not been asked for.
Dr Delport pointed out that the heading required changing.
The Chair asked that Mr Labuschagne change the heading to "monitoring of a signal for purposes of installation or maintenance" and added that subclause (2) had been removed.
Clause 9: Interception of indirect communication in connection with carrying on of business
The Chair did not think that anything in the clause had been changed. Words had been added but they had already been agreed to.
Clause 10: Interception of communications authorized by certain other Acts
Mr Labuschagne said that he had been asked to find the difference between submitting and tabling. From a legal point of view there was no difference and any document that was submitted was automatically tabled. However, all previous legislation had used the word "submit".
The Chair remarked that it was because it connoted another step.
Imam Solomon asked if every submission to Parliament needed to be tabled.
The Chair answered that even if it did not, the Rules should be looked at as there was a new section that deals with other reports. He thought that the word "submit" was fine.
The Chair reminded Mr Labuschagne that there was also going to be a resolution concerning the clause.
Adv Masuta (ANC) as an aside, said that he had been told that a number of conventions, such as the African Charter on Children, had been adopted by Parliament also their texts did not appear anywhere in the ATC's and different versions of the text existed. He was not sure which one had been certified by the OAU and he knew of another convention where a version had been obtained off the Internet.
Mr Labuschagne explained that something was submitted it was done by way of a letter to the Speaker. If tabled, it was addressed to the clerk of papers.
Clause 11: Monitoring of signal and radio frequency for purposes of managing radio frequency spectrum
The Chair referred to submission 96 from the DG of Communications, which included a very narrow exemption for ICASA. One of the words used under "communication" was the word "signal" and a very narrow exemption was created to monitor a frequency. If the clause were not included, the result would be that every time this was done, an offence would be committed. The DG had, instead of "monitor" used the word "examine" and instead of "signal" used "electromagnetic frequency spectrum". The Chair felt that the word "examine" could not be used as it was not defined in the Act. He questioned the term "radio frequency".
A representative from ICASA answered that the phrase "radio frequency spectrum" was used in the ICASA Act.
The Chair decided that that term should be used.
Mr Labuschagne raised a concern regarding the use of the term.
The Chair asked if "a frequency" would be fine.
Mr Labuschagne suggested referring to "radio frequency" and that a signal is sent through a frequency.
The Chair asked that "signal or radio frequency" be replaced with "spectrum" and that the words "â€¦of such a signal, radio frequency or transmission" be added so that the word "such" referred back. He requested that the DG be informed that that was how the matter was being dealt with.
Chapter 3: Applications for, and issuing of directions and entry warrants
The Chair pointed out that the following page included an exception found in Canadian legislation, relating to criminal organisations, where it was not necessary to show a judge that other investigative procedures had been followed. However, the affidavit must reflect what information was required and must be put forward to the judge.
Mr Labuschagne explained that the Canadian organisation had referred to criminal organisations, however Ms Chohan-Kota had suggested "organised crime. Unfortunately "organised crime" was not defined in any Act and so two options were provided for in clause16 (2)(e)(i) from which the Committee could choose. He suggested saying that the offence relates to organised crime.
The Chair said that the problem was that half the definitions of "serious offences" related to organised crime.
Dr Delport suggested "organised crime" as envisaged in the Organised Crime Act.
He Chair replied that he wanted it wider than that.
Dr Delport suggested that, in terms of ss(5), it be limited to serious offences.
The Chair responded that there were three grounds that would have to be fulfilled before a judge would grant an order and it was still necessary to prove that it is a serious offence.
Dr Delport clarified that he was not trying to exclude "serious offences".
The Chair felt that the problem was that the (a) part was not always committed by syndicates while the (b) part was.
Mr Labuschagne recommended the second option, which appeared to have the same meaning as that which the Chair wanted.
The Chair replied that technically it did not as one part of serious offences did not relate to organised crime.
Dr Delport differed and suggested it refer to schedule 1 offences committed by organised crime.
The Chair questioned if the phrase "related to" was good enough. He asked that the term "criminal organisation" be replaced with "an organisation or syndicate involved in organised crime" and included Dr Delport's suggestion of "and an association with a person, group of persons or syndicate involved in organised crime". He asked if the Committee was happy with subclause (ii) and they were.
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