Regulation of Interception of Communications: finalisation

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
13 September 2002
REGULATION OF INTERCEPTION OF COMMUNICATIONS BILL: FINALISATION

Chairperson: Adv J H de Lange (ANC)

Relevant documents
Regulation of Interception of Communications Bill: Draft as of 12 September 2002
Osman and Another v Attorney-General, Transvaal 1998 (2) SACR 493 (CC)
Committee Report on Bill
Proposed Insertions by the Department of Communications (Appendix)

SUMMARY
The Committee deliberated on Chapter 6 of the Bill and amended Clause 32 by expressly linking the costs of establishing interception centres to the State and the Departments of Intelligence Services and Communications specifically. Clauses 33, 35-37 were accepted. Under Clause 34 it was decided that designations and secondments would apply here and no appointments would be made, as suggested by the Director General of the Department of Communications. A minor amendment was effected to Clause 38 relating to allow for consultation with relevant Ministers.

In Chapter 8 a minor technical amendment was effected to Clause 45 and Clause 46 was accepted.

Clauses 47, 48, 50 in Chapter 9 clauses were accepted, and the word "spectrum" was added in Clause 49(2)(b). Clause 51 was checked for compliance and accurate reference to each clause containing an offence, and Members were satisfied with the manner in which it had been drafted and that it includes all offences. The period of imprisonment referred to in Subclauses 1(b) and 2(b) will now be reduced to ten years, with the latter prescribing a fine of R2m for natural persons and R5m for juristic persons. Subclauses 3(b) and 4(b) will also impose imprisonment of ten years and a fine of R2m for natural and R5m for juristic persons.

Clause 52 was introduced in response to the judgment in the Osman case relating to compelling a person to give a satisfactory account of the possession of a stolen cell phone or SIM-card. Clauses 53, 55- 57 were accepted, and under Clause 54 it was discussed whether the accidental damage caused to the relevant equipment was properly exempted from this clause.

In Chapter 10 Clauses 58-62 were accepted, and the short title in Clause 63has been changed to "Regulation of Interception of Communications and the Provision of Communication-Related Information Bill".

The phrase "a period of imprisonment as prescribed in the Criminal Laws Amendment Act of 1996" has to be inserted after the word "or" in Item 14 of the Schedule, as the minimum sentencing provisions have to be expressly included here.

The numbering of Clauses 6 to 10 were altered, and minor amendments were effected to certain definitions in Clause 1 of the Bill.

MINUTES
Chapter 6: Interception Centres, Office for Interception Centres and Internet Service Providers Assistance Fund
Clause 32: Establishment of interception centres
The Chair noted that the word "National" has been removed from the title of this clause. He informed Members that "Minister" in this chapter refers to the Minister of Intelligence Services. Subclause 1 now links the costs of establishing such interception centres to the State.

Mr J Labuschagne, Legal Drafter from the Department of Justice and Constitutional Affairs (the Department, stated that these amendments have been effected as a result of the proposals received from the Director-General of the Department of Communications (see Appendix).

The Chair agreed but noted that administrative costs have been excluded.

Mr Labuschagne replied that these costs are included in Subclause 2.

The Chair contended that Subclause 2 does not deal with the costs involved, and questioned whether it should perhaps be inserted here. The word "and" at the end of Subclause 1(b) should be placed at the end of Subclause 1(c), and a new Subclause 1(d) has to be inserted to deal with the administration and functioning of the interception centres. This would then expressly link those costs to the State, and the version of Subclause 2 in bold print would then replace the current subclause 2.

Mr Labuschagne responded that Subclause 1(d) will then not link these costs to the State, and the entire provision would then have to be reformulated.

The Chair asked why "administer and control" has been excluded from Subclause 1 and suggested that "functioning" be deleted from the proposed Subclause 1(d), so that the entire provision would then be in the present tense. Subclause 1(d) would thus read "administer the interception centre", and this is important because it stipulates that the Department of Intelligence has to bear the costs here and also allows for one budget to apply to the establishment of the entire interception centre.

Mr Labuschagne agreed that "functioning" should be deleted because that would imply that the Minister of Communications would then issue directives to be complied with by the Minister, which cannot be the case. The Minister of Communications thus has to consult with the Minister here.

The Chair questioned whether this matter has not already been dealt with in Clause 28.

Mr Labuschagne replied that Clause 28 deals with the costs carried by the telecommunications service provider, whereas Clause 32 addresses the costs to be borne by the State. The previous versions of Subclauses 2 and 3 required both the Defence Force and SAPS to establish their own interception centres, yet Subclauses 2 and 3 in bold print now states that this will be done by the Minister in consultation with other relevant Ministers. They could then decide on the applicable standards during that consultation.

The Chair asked whether the Bill sets out any such standards for the State.

Mr Labuschagne answered in the negative.

The Chair called for these provisions to be retained because it ensures consultation with the telecommunication service providers. The versions of Subclauses 2 to 4 not in bold type provide that each department has to establish its own interception centre and it should be replaced with the version in bold type, as those clauses now designates it as the line function the Department of Intelligence Services. Thus declaring it a line function of one department whilst also ensuring consultation with other relevant departments creates a uniform system, and only one set of directives are thus needed.

Mr L Landers (ANC) contended that these provisions do seem to remove much of the bureaucracy involved here.

Dr J Delport (DP) stated that if the provisions require the Minister of Communications to operate in consultation with the Minister, it would then be totally superfluous to provide that the Minister of Communications would have to issue directives which the Minister would then have to comply with.

The Chair approved of the versions of Subclauses 2 to 4 in bold type and called for it to be inserted in the Bill as new Subclauses 3 to 5, and noted that all agreed to these amendments. Clarity is requested regarding the current version of Subclause 4.

Mr Labuschagne replied that the Department of Communications called for the Department of Intelligence Services to be held responsible for all the costs involved, and the Defence Force and SAPS would then contribute a certain percentage of the total cost. Yet if all the costs are to be responsibility of the Department of Intelligence Services, then it is unclear whether Subclause 4 would be necessary.

The Chair suggested that nothing prevents the operation of Subclause 4 should this responsibility be placed with the Department of Intelligence Services.

Mr Labuschagne agreed with the Chair.

The Chair asked whether these concerns are captured in the document submitted by the Director-General of the Department of Communications (see Appendix).

Mr Labuschagne answered in the affirmative.

Dr Delport stated that if Subclause 2 provides that the Minister "must exercise final responsibility over the administration of interception centres" this would amount to interfering in the functioning of the Minister via legislation.

The Chair agreed and stated that this provision seems to address the situation in which one department to takes over the administration of interception centres but does not want to bear the full costs by itself, and this provision thus requires all involved to "chip in". This provision will be returned to at a later stage. Claritys is requested regarding Subclause 5.

Mr Landers requested clarity on who exactly the "Executive Director" and "National Director" referred to in Subclause 5.

The Chair informed Mr Landers that the "Executive Director" refers to the executive director of the Independent Complaints Directorate (ICD) and "National Director" refers to the National Director of Public Prosecutions (NDPP). The word "sharing" should be replaced with the phrase "to make use of the services of the interception centre" and the reason for such use should also perhaps be included here. In fact, the phrase "to make use of" should instead be replaced with "for the purposes of", as this would then clearly express that the executive director of the ICD, the NDPP and the National Commissioner of SAPS are not part of the centre.

Mr Labuschagne suggested that the reference to costs be deleted from this subclause.

The Chair stated that the phrase "including the costs as payment for such services" should then be inserted after "agreements", and this would then make it clear that the State has to bear the costs here. Does "thereof" at the end of this subclause refer to the "services"?

Mr Labuschagne answered in the affirmative.

The Chair stated that the clause should remain as it currently stands but "sharing" has to be removed, as suggested earlier. Subclause 6 can be deleted and clarity is requested regarding the deletion of Subclause 7, which deals with the National Key Points Act.

Mr Labuschagne referred the Chair to the footnote 3 of the Bill appearing below Clause 34, which states that the Minister already has the discretion to make such a determination, and in practise the Minister for Intelligence Services will approach the Minister to make such a determination. It would thus not be necessary to provide for similar powers here in Subclause 7.

The Chair agreed with the reasoning offered by Mr Labuschagne, and it now has to be decided whether this should be included in the resolution.

Mr J Jeffrey (ANC) stated that he was initially under the impression that the National Key Points Act is peremptory, but it was later discovered that that Act provides the Minister "may declare that place or area a National Key Point". Thus even then the resolution has to be carefully worded.

The Chair requested Mr Jeffrey to word the resolution to draw the Minister's attention to that Act, and that it will be left to the discretion of the Minister to decide whether to refer to that Act.

Clause 33: Establishment of Office or Interception Centres
The Chair noted that Subclause 2 has been removed because many Ministers are involved with the interception centres, and this provision is extra but not necessary.

Clause 34: Director and staff of Office
The Chair requested clarity on the use of the term "designated" in Subclause 5.

Mr Labuschagne replied that this refers to a more permanent position than is the case with those "seconded".

The Chair asked whether Subclause 5(b) and (c) applies to both SAPS and Department officials.

Mr Labuschagne responded that not all SAPS and Department officials will have the necessary clearance to access the interception centre. The Director-General of the Department has recommended that such persons be appointed rather than being "seconded or designated", yet effecting this proposal would create complications as the service and remuneration of such persons would then have to be determined.

The Chair stated that these persons will not be appointed, but instead seconded and designated as currently provided in the Bill.

Clause 35: Powers, functions and duties of Director
Mr Labuschagne suggested that Subclause 1(f) be deleted because the directive provision is already contained in Clause 32.

The Chair noted that in Subclause 2 now refers to "Director" and not the "Department", and no objections were raised with this clause.

Clause 36: Head and staff of interception centres
The Chair asked whether Subclause 2 has not already been covered in Clause 35(2).

Mr Labuschagne replied that Clause 35(2) refers to the Office of the Director of interception centres, whereas this clause refers to the interception centre itself.

The Chair noted that there is a typographical error at the end of Subclause 5, as the word "centre" should follow "interception" in the last line of the Subclause.

Mr Labuschagne stated that he is not totally satisfied with the use of the phrase "exercise control" a the beginning of Subclause 6(b) and instead preferred "responsible for the proper functioning of the centre", as this would include various matters.

Mr Jeffrey stated that he was under the impression that the need for a centralised interception power is assumed by Subclause 4 and thought that this was the very purpose of Subclause 6. The reason for this is that different departments are involved here, and the head of the interception centre is responsible for overseeing this. Thus Subclause 6 introduces the responsibility and Subclause 4 creates the inherent power.

The Chair stated that this clause should remain is it currently stands.

Clause 37: Keeping records by heads of interception centres and submission of reports to Director
The Chair stated that the functions of the head of an interception centre are contained in Subclauses 1 and 2. He questioned whether Subclause 3 should refer to "The Director" or "The Head" of the interception centre.

Mr Labuschagne replied that he has thought about this matter and this would be done by the interception centre and not by the Director.

The Chair stated that the duties have to be stipulated somewhere else and should provide that all these reports should go to the Minister, and his is all that can be done here. The Director and the interception centre has to be made accountable to the Minister.

Clause 38: Establishment and control of Internet Service Providers Assistance Fund
The Chair suggested that the phrase "subject to the directives of the Minister in consultation with the relevant Minister" after the word "Director" in Subclause 5. Subclause 7 should also be amended by the insertion of the phrase "relevant Ministers and with" before the word "Cabinet".

Chapter 8: General Prohibitions and Exemptions
Clause 45: Prohibition on manufacture, possession and advertising of listed equipment
The Chair noted that Mr Labuschagne has introduced the word "who" to refer to "person" as defined in the Bill. The second "who" has been replaced with "which" to refer to the law enforcement agencies.

Mr Jeffrey asked whether a comma should not be placed after "who" and "which" in Subclause 2.

Mr Labuschagne replied that it would definitely be placed after "which".

Mr Landers contended that it should be placed before "which".

Mr Jeffrey maintained that it should be placed after "which", as it depends on where the pause falls in that provision.

The Chair agreed that it should be placed after "which", as the aim here is to make this provision applicable to all manufacturers.

Clause 46: Exemptions
The Chair suggested that the word "any" be removed from the end of Subclause 1(a), and the "determines" has now be inserted at the end of that subclause.

Mr Jeffrey contended that Subclause 1(a)(i)-(iii) deals with bodies and activities to be exempted, and should instead be inserted at the end of Subclause 3.

Mr Labuschagne disagreed because Subclause 1(a)(i) does not exempt ISP's from Section 45(1) of the Act, for example, and the law enforcement agencies are only exempt from the prohibited acts of possessing and purchasing in terms of Section 45(1).

Mr Jeffrey agreed.

The Chair contended that Subclause 2(b) has introduced the "reasonably necessary" test, as this is a higher test.

Mr Labuschagne informed Members that consequential amendments have been effected to Subclause 3.

The Chair added that such amendments have also been effected to Subclause 7, as the definition of "law enforcement agency" has since been altered to include SAPS, the Defence Force and other relevant bodies.

Chapter 9: Criminal Proceedings, Offences and Penalties
Clause 47: Use of information in criminal proceedings
The Chair noted that Subclause 3 has been removed, and typographical errors have been remedied.

Clause 48: Proof of certain facts by certificate
No amendments have been effected to this clause.

Clause 49: Unlawful interception of communication
The Chair stated that this is a difficult provision because it contains an offence which is linked to the prohibition of interception. Subclause 2 now reflects the split into interception into part (a) and monitoring in part (b), and the references to Sections 8 and 11 in that subclause have now been moved to part (b).

Mr Labuschagne suggested that the word "spectrum" be inserted after "frequency" in Subclause 2(b).

Clause 50: Unlawful provision of real-time communication-related information
The Chair noted that "intentionally" has to be included here, as was done in Clause 49, and the remainder of the amendments in Clause 50 remedy typographical errors.

Clause 51: Offences and penalties
The Chair informed Members that this new structure of Clause 51 has not yet been considered by this Committee. Those provisions or portions of provisions with a frame around them indicate provisions containing a criminal sanction, such as Clauses 6(2), 7(3) and (4), 9(2), 29(1), 40(1)-(3), 42(1) and 45(1) of the Bill. This will make it easier for Members to check those provisions with
this clause. Clause 51 will now be evaluated in terms of whether it includes all those prohibitions listed in those clauses containing offences.

A problem here is that Clause 42(2) is mentioned in Clauses 2(b), 3(b) and 4(b), yet Clause 42(1) is nowhere to be found.

Mr Labuschagne replied that Clause 42(1) is included in Subclause 1(a)(i), and Clause 42(2) has been included in parts (b) of Clauses 2-4 because it can be contravened by all the bodies referred to in those clauses.

The Chair approved of the "clever way" in which Mr Labuschagne has drafted this clause.

Mr Labuschagne stated that Subclause 1(a)(iv) now makes it an offence to enter the premises of any person without a properly authorised entry warrant, in order to remove an interception device which had been installed on a previous occasion. This provision has now been specifically included in the Bill to address this situation.

The Chair suggested that the period of imprisonment imposed in Subclause 1(b) be reduced to "not exceeding ten years" because, upon considering each offence listed in Subclause 1(b), there does not seem to be a single offence that warrants imprisonment beyond ten years.

Dr Delport contended that the fines to be imposed by this clause seem to fall within three categories. The first deals with the offence which is the very essence of the Bill and is contained in Clause 49(1), and this key area of non-compliance carries a fine of not more than R10 000 or a period of imprisonment not exceeding twenty years. The second deals with non-compliance with matters such as the failure to create a proper paper trail or not implementing or supporting measures supportive of achieving the end objectives, which carries with it a fine of not more than R5 000 and a period of imprisonment not exceeding five years. The third category deals with minor supporting measures such as reporting a stolen cellphone, which carries a fine not exceeding R2 000 and a maximum period of imprisonment of two years. The concern here is that not even those found guilty of drug-trafficking are not awarded a full imprisonment of ten years, yet one can be imprisoned for up to two years for not reporting the theft of a cellphone.

The Chair stated that he agreed generally with what has been said by Dr Delport, but contended that such categorisation cannot be engaged in at this point in time. The period of imprisonment will be a maximum of ten years. A recent newspaper article has cast this Bill in very bad light. The fact that the provision states that imprisonment of twenty years can be imposed does not mean that each person will be awarded the full twenty years as the court always has a discretion, based on the facts of each case, to use its discretion in handing down sentence. It is thus suggested that wherever sentences are referred to in this clause, it carry a maximum term of ten years. The only provision that will not carry a ten year sentence is Subclause 1(b). Why has Clause 50(1) not been included in the offences listed in Subclause 1(a)?

Mr Labuschagne replied that it is included under Subclause 3(b), as it is an offence that can only committed by a telecommunication service provider.

The Chair approved, and noted that Clauses 52, 53(1), 54 and 55 have now been included in Subclause 1(b) as an offence carrying with it a period of imprisonment not exceeding two years. Clauses 49(1) and 54 should be retained as offences carrying an imprisonment not exceeding ten years, and the failure to report a stolen cellphone should carry a two year imprisonment. What is the appropriate fine for a period of imprisonment of ten years?

Mr Labuschagne replied that this currently stands at R200 000, and the rationale here is that one year of imprisonment translates into R20 000.

The Chair stated that this clause has to stipulate that the maximum period of imprisonment under Clause 50(1)(b) has to be "not exceeding ten years or a fine not exceeding a maximum of R2m".

Mr Landers questioned whether these are appropriate sanctions for crimes involving industrial espionage.

Mr Labuschagne sought clarity on imposing such large fines.

The Chair stated that this legislation "must hit them in the pocket" because they might be tempted to bribe the law enforcement officials, and the courts thus have to be allowed to impose a higher fine. This would do no harm, and these fines would also have to apply to juristic persons. Thus the period of imprisonment has to be reduced, whereas the fines will be increased.

Mr Landers contended that the offences listed in Subclauses 1(a) and (b) are aimed acts of industrial espionage, and numerous complaints are being lodged that this has been happening far too often recently. Yet the State does not seem to be doing anything about it, and for this reason the fine of R2m has to be introduced.

The Chair stated that Subclause 2(b) has to carry with it a period of imprisonment not exceeding ten years, with parts (aa) and (bb) imposing a fine not exceeding R2m and R5m respectively. A maximum period of imprisonment will be imposed on all offences in Subclauses 2 to 4, and under Subclauses 3 and 4 natural persons will face a fine not exceeding R2m and juristic persons a fine not exceeding R5m. Why has the previous Subclause 5 been removed?

Mr Labuschagne responded that the intention here is to provide a catch-all provision to now make those provisions which were not formerly recognised as contravention as punishable offences. Yet the effect of this is that should the judge, for example, fail to keep copies of all the affidavits and other relevant documentation or fail to inform the service provider that the direction has been issued, that judge can now be charged, convicted and sentenced. Mr Labuschagne stated that this does not seem to be appropriate, and he has thus included each provision which he considers to be an offence in the new Subclause 5.

The Chair stated that the courts would in any event strike down the previous Subclause 5 for vagueness, and the new version is thus supported.

Mr Labuschagne replied that the wording of the new Subclause 5 is not clear on how the additional fee would be enforced, and it was therefore decided that the fine be deleted. Instead, the guilty service provider would in such instances be charged again on any offence committed in future. Why should this not be allowed if the service provider is sentenced today and still fails to comply with the charge next week?

The Chair stated that this provision is "beautifully clear", but it does not solve the problem with regard to who decides what the subsequent charges are.

Mr Labuschagne responded that this provision was copied from other pieces of legislation without fully considering those Acts, and it was discovered that each Act provided that a third party can enforce a daily fine.

The Chair contended that he likes the clause, but foresees the problems it raises. Nothing prevents a clever judge from handing down a sentence such as this, and the prosecuting authority could also plead in this manner.

Mr Labuschagne stated that a clever prosecutor would charge the person for every day during which the contravention or failure continues, and not for the entire period.

Clause 52: Failure to give satisfactory account of possession of cellular phone or SIM-card
The Chair referred Members to the Osman judgment (see document above) that dealt with Section 36 of the General Law Amendment Act of 1955, which is a provision similar to this clause. The court held that Section 36 does not contravene Section 25 of the Constitution and would thus not be struck down.

Mr Labuschagne referred Members to paragraph 24 of the judgment, which contains the court's finding in that case.

The Chair suggested that this be included here as part of the offence and, should the person then give a satisfactory account of the possession that creates a reasonable doubt, that person would then not be charged. The court held in the Osman judgment that a problem would only be created here if the prosecution proceeds on the basis of that assumption. Mr Labuschagne is requested to check whether the matter before the court in the Osman case arose for deliberation in the Manamela, Singo and Zuma judgements.

Mr Labuschagne replied that those judgements do not deal with the concern raised in Osman.

Mr Jeffrey informed Members that such a matter has not arose since the Osman case, as correctly stated by Mr Labuschagne, and Osman dealt with stock. Will Clause 52 allow the law enforcement officer to harass the poor in search of an explanation for their possessing a Nokia 5210 when they earn such a meagre salary, all on the basis of a "reasonable suspicion"? This clause should be retained, but will then be amended as the process goes along.

The Chair contended that Section 36 refers to all goods, and can therefore be used to deal with cellphones as well.

Mr Labuschagne stated that the period of imprisonment has now been reduced to two years, and this should be deleted, because the penalty under the General Law Amendment Act of 1955 is higher than two years.

The Chair suggested that this would only be entertained if it is clear that the prosecuting authority can charge the person under the this Bill and under the General Law Amendment Act in the alternative.

Mr Labuschagne replied that this would not be possible, because the person cannot be charged twice under the same count.

The Chair contended that this can be done, as is the case under the Prevention of Corruption Bill in which twenty offences are created but they all amount to one crime, and the person could then be charged on all twenty counts. That Bill also allows the prosecuting authority to seek a conviction in the alternative by relying on a competent verdict.

Mr Labuschagne responded that the problem created here is that should the prosecuting authority not succeed on the facts on one charge, s/he would then not succeed on the other charges.

Clause 53: Absence of reasonable cause for believing cellular phone or SIM-card properly acquired
The Chair stated that this clause complies with the Manamela judgment.

Clause 54: Unlawful acts in respect of telecommunication and other equipment
The Chair noted that the presumption has been removed from this clause.

Mr Labuschagne replied that the clause contains a straightforward offence and therefore does not need a presumption. Furthermore, should a presumption be included in this clause it is not certain what would have to be proved to rely on that presumption.

The Chair stated that the clause provides that some form of intention would have to be proven as well as unlawfulness, and it is not certain how the law enforcement agency would check if the cellphone has been modified or tampered with. If a presumption is not included in Clause 52, the person would not be forced into the witness box.

Mr Labuschagne replied that surely the modification of a cellphone includes some form of intention.

The Chair stated that the cellphone could be dropped accidentally and this could result in internal damage, and would this necessarily amount to modification, tampering, alteration etc. as provided for in Subclause 1?

Mr Jeffrey stated that he is not a telecommunication expert and agreed with Mr Labuschagne, but also in those cases in which the cellphone is accidentally dropped, it would not have the same effect as those cases in which it is intentionally modified to affect the communication aspect. Surely the latter would involve the scientific use of tools, for example.

Dr Delport agreed with Me Jeffrey as an accident cannot be severe enough to tamper with the software of the cellphone. What precisely is meant by the phrase "reverse engineers" in Subclause 1(b)?

Mr Labuschagne responded that these were terms inserted by the service providers themselves, and her does not know their meaning.

The Chair stated that this clause should be retained as it currently stands.

Clause 55: Failure to report loss, theft or destruction of cellular phone or SIM-card and presumption
This clause was accepted.

Clause 56: Revoking of licence to provide telecommunication service
Both the Chair and Mr Landers agreed that this is a "very good" clause, and no concerns were raised by Members.

Clause 57: Forfeiture of listed equipment
The Chair stated that this provision allows law enforcement agencies to apply for an exemption of listed equipment.

Mr Labuschagne informed Members that Subclause provides for compulsory forfeiture, whereas Subclause 1 deals with discretionary forfeiture. Subclause 3 provides that any listed equipment that has been forfeited must be reported to the authorities as soon as possible. Subclause 4 has been amended by increasing the period in Subclause 4(a)(i) to four months, and the law enforcement authority would then have another month in which to apply to the Minister for an exemption here. The remainder of the clause contains only consequential amendments, and Subclause 7 has been added.

The Chair asked whether an "and" or an "or" should be placed between Subclause 4(a)(iii)(bb) and (cc).

Mr Labuschagne replied that an "or" should be inserted there.

Chapter 10: General Provisions
Clause 58: Supplementary directives regarding applications
The Chair noted that no changes have been effected to this clause.

Clause 59: Amendment of section 205 of Act 51 of 1977, as substituted by section 11 of Act 204 of 1993
The Chair stated that there are no amendments to this clause, and he is not certain why the underlined text has been retained here.

Clause 60: Amendment of section 11 of Act 140 of 1992
The Chair noted that there are no changes to this clause.

Clause 61: Amendment of section 3 of Act 40 of 1994, as amended by section 3 of Act 31 of 1995 and section 3 of Act 42 of 1999
The Chair noted that no changes have been effected to this clause.

Clause 62: Repeal of law and transitional arrangements
The Chair requested clarity on the inclusion of Subclause 5.

Mr Labuschagne replied that this was proposed by the Director-General of the Department of Communications, and are transitional provisions aimed at catering for those facilities currently performing interception operations.

The Chair approved the proposal.

Clause 63: Short title
The Chair informed Members that he has thought about the short title of the Bill and a second prohibition should be added to the title because the current formulation does not cover all the aspects. Thus the phrase "and the Provision of Communication-Related Information" has to be added after "Regulation of Interception of Communications Bill", and this new title would then include both prohibitions dealt with in the Bill.

Mr Labuschagne proposed that "the" be removed before the word "Provision" in the suggested title.

The Chair accepted this proposal and noted that all agreed with the new title.

Schedule
The Chair stated that the minimum sentence provisions as contained in the Criminal Law Amendment Act of 1996 have to be specifically mentioned in Item 14. The phrase "a period of imprisonment as prescribed in the Criminal Law Amendment Act of 1996" has to be inserted after "or" in the first line of Item 14.

Dr Delport suggested that Item 14 instead be amended by inserting the phrase "where a minimum sentence is prescribed" at the end of Item 14.

The Chair stated that he does not have a problem with this suggestion, as long as Item 14 refers to that Act.

Mr Labuschagne proposed that the phrase "exceeding five years" be deleted from Item 14, as the item will still refer to the minimum sentence legislation. Yet the effect of this is uncertain.

The Chair stated that that phrase cannot be deleted because all three penalties have to be included in Item 14, and all periods of imprisonment exceeding five years will then be the catch-all phrase. Yet this has to be worded clearly, and the important issue here is not whether that penalty has indeed been handed down but rather that it could possibly be imposed.

Mr Labuschagne suggested that Item 12 cannot refer to the Prevention of Corruption Act of 2002, because this Bill will be passed before that Act comes into operation.

The Chair stated that Items 12 and 13 have to refer to both the Prevention of Corruption Act of 2002 and the Corruption Act of 1992, and the Schedule would then include a clause to the effect of "except Item 13".

Mr Labuschagne replied that it could be stated in the Prevention of Corruption Act of 2002 that any reference made to the 1992 Act would be construed as a reference to the 2002 Act.

The Chair contended that this would not work because amendments would then have to be made, because while the 2002 Act is in operation a person can still be charged with an offence committed under the 1992 Act.

Mr Jeffrey proposed that the relevant provision in the 2002 Bill be an amendment, and the Schedule to the Bill has to retain the reference to the 1992 Act.

Other matters
The Chair suggested that Clause 6 become Clause 7, Clause 7 become Clause 8, Clause 8 become Clause 10 and Clause 10 become Clause 6.

Dr Delport stated that this would not affect Chapter 9.

Clause 51
The Chair stated that the reference to Clauses 49 and 54 have to be removed from Clause 51(1)(b), and separate punishments should instead be created for each.

Mr Labuschagne inquired as to the nature of the punishment.

The Chair replied that it would be the same as that stipulated in Clause 51. Clauses 3 and 13 should be amended by replacing the words "may" with "must" in each of those provisions. Should it be "must"?

Clauses 3 and 13
Dr Delport contended that "may" be retained in those clauses because Clauses 3 and 13 are not the provisions that dictate how interception is to be carried out, and Clause 2 is a more general provision.

The Chair agreed.

Clause 1
"telecommunication service provider"
The Chair suggested that the reference to "Internet service provider" in Part (b) of that definition should be deleted, and should instead refer to "Internet services". Who precisely is the "Internet service provider" here?

Mr Labuschagne disagreed with the Chair and stated that "Internet service provider" here refers to any Internet service provider, and thus includes both Parts (a) and (b) of the definition.

The Chair accepted the explanation offered by Mr Labuschagne.

"monitor"
The Chair suggested that the word "includes" has to be replaced with "means" as the former is open to too general an interpretation, whereas the term should instead have a narrow meaning.

Mr Labuschagne agreed, and asked whether this would include the monitoring of a signal which it is being listened to or recorded.

The Chair replied that it does matter, because the definition includes "or record".

Mr Labuschagne asked how both could be done.

The Chair stated that he understands the concern raised by Mr Labuschagne, but the inclusion of "or" in the provision covers his concerns.

Dr Delport suggested that there are different ways to record a communication.

Adv M Masutha (ANC) stated that the reason for dropping the "and/or" as was previously contained in this definition, is because the "or" here has been interpreted to include "and".

The Chair stated that Mr Labuschagne is concerned that "monitor" here refers to Telkom and the interception centres and whether they will then be listening or recording here, or doing something else. Mr Labuschagne is thus correct, and this definition should remain as it currently stands.

"indirect communication"
The Chair suggested that Part (a)(vi) be inserted to include "radio frequency spectrum" in this definition.

Mr Labuschagne asked whether information can be transferred via radio frequency spectrum.

The Chair replied that this is possible, and the definition of "telecommunication system" in Draft 5 of the Bill expressly refers to "radio", and it should thus be included in this Bill to capture the fact that a telecommunication system is being dealt with here.

Mr Labuschagne replied that this can be done, but suggested that this would already be covered by "in any other form" in Part (b) of the definition in this Bill.

The Chair agreed, but stated that the term "radio" has been used explicitly in the Bill, and should thus be included here.

Subclause 3
The Chair asked whether this clause is still needed, and this matter will have to be addressed in the NCOP cycle. The phrase "or broadcast" should be inserted after "transfer" at the beginning of this definition, because the Bill expressly refers to radio, and also because "broadcast" is mentioned in Subclause 3 of Clause 1.

Mr Labuschagne replied that Subclause 3 is the only provision in the Bill which refers to "broadcast", and is not even included in Clause 11 which deals with the monitoring of signal or radio frequency.

Clause 9
The Chair stated that this clause has been taken from the United Kingdom model, but the use of the word "purposes" in Subclause 2(a) is problematic. It is not clear why businesses are included here because Subclause 2(a)(bb) has nothing to do with business. That provision provides that every communication of this business may now be recorded.

Adv Masutha suggested that the provision be amended by instead requiring the business to report to the relevant authority.

The Chair agreed with this proposal, and it also has to apply to all other law enforcement agencies.

Mr Landers asked whether "business" in this clause refers to government departments as well.

The Chair answered in the affirmative, and stated that this clause is really aimed at ensuring that the internal communications of the company are regular, and is not intended to be opened up to every opportunity for the company itself to act as a law enforcement authority. Subclauses 2(a)(bb) and (cc) should thus be removed because those provisions are too carte blanche, and Subclauses 2(a)(dd) and (ee) should be retained because they deal with the internal functioning of the company itself.

Dr Delport suggested that only Subclause 1 is needed.

The Chair suggested that Subclause 2 is needed as well because it narrows the ambit of Subclause 1.

Mr Jeffrey contended that this matter can be revisited in the NCOP cycle.

Ms F Chohan-Kota (ANC) asked whether the quality control aspect is adequately captured here if this is done via telephone, because if it is not then it should perhaps be included here.

The Chair stated that this has to be noted and captured, because it deals with the internal business of the company. The phrase "any other" should be removed from Subclause 2(a)(dd).

Long title
The Chair stated that radio frequency spectrum has to be included here, and the phrase "to provide for certain costs to be borne by the telecommunication service providers" be inserted before "to provide for the establishment of interception centres".

The Chair read the Motion of Desirability as well as the Committee Report on the Bill, and noted that the Bill has now been passed by the Committee.

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

Appendix

INTERCEPTION AND MONITORING BILL [B 50-2001]
19 June 2002

PROPOSED INSERTIONS AS PRESENTED BY THE DEPARTMENT OF COMMUNICATIONS

Chapter 1
Introductory Provisions

1. Definitions and interpretation

Page 8
"monitoring device" means any electronic, mechanical or other instrument, device [or], equipment or apparatus which is used or can be used, whether by itself or in combination with any other instrument, device [or], equipment or apparatus, to listen to record and to retrieve archived communication related information from a telecommunication system;

Chapter 5
Interception Capability, Interception Centres and Costs

Page 33
[7] 27. (1) Notwithstanding any other law, [no] a telecommunication service provider [may] must--
(b) (a) provide [any] a telecommunication service which [does not have] has the [capacity] capability to be [monitored] intercepted; store communication-related information.
(b) provide a connection whether fixed or mobile between the telecommunications service provider and the centres.
(c) acquire relevant facilities and devices to be installed in the centres for purposes of monitoring.
(d) bear the costs generated from all calls made between the service provider and the centres.
4.
(cc) storing of communication-related information in terms of subsection (1)(b),
(dd) provision of the connection referred to in 1(c)

(iii) acquisition of relevant facilities and devices to be installed in the centres.

Page 34

telecommunication service provider must, subject to section 37(1), at own cost [and within the period, if any, specified by the Minister of Communications in a directive referred to in subsection (4)(a),] acquire, whether by purchasing or leasing, the [necessary] facilities and devices [to enable the monitoring of communications in terms of this Act] referred to in subsection (2)(a).
[(3)](5) [The investment, technical, maintenance and operating] Any costs incurred by a telecommunication service provider in enabling-
(a) a telecommunication service to be [monitored] intercepted; and
(b) communication-related information to be stored,
(c) provide a connection whether fixed or mobile between the telecommunications service provider and the centres and.
(d) acquire relevant facilities and devices to be installed in the centres, including the investment, technical, upgrading and costs, must be carried by the telecommunication service provider providing such a service and storing such information.

[Central monitoring] Interception centres

[8] 28. (1)(a) The Minister in consultation with other relevant Ministers must at state expense
(i) establish, , operate and maintain [central monitoring] interception centres for the [authorised monitoring] interception of communications in terms of this Act;
(b) the Minister must appoint a Chief Executive Officer, who will be responsible for the day to operations of the centres
(c) the Chief Executive Officer will be the accounting officer of the centres
(d) these centres will be declared national key points in line with Act 102 of 1980 and will be called 127 centres
(e) staff to be employed at these centres should be security competent and will be subjected to a security screening investigation as stipulated in Act 38 of 1994
(f) the centres will provide relevant service to all enforcement agencies.
(g) the centres will have an internal computer audit system to archive all requests for services rendered
(2) (i) The centres shall be exempted from acquiring a licence and payment of any fees in terms of any section of the Telecommunications Act;
(ii) The exemption in (i) shall only apply to the centres when performing functions in terms of this Act.

***Deletion of the rest of section 28.

Chapter 9
General Provisions

54. Regulations
The Minister may make regulations, regarding any matter that may or must be prescribed in terms of this Act or any matter, which is necessary or expedient to prescribe for the proper implementation or administration of this Act.