Extradition & Mutual Legal Assistance Treaties: finalisation; Regulation & Interception of Communications & Provisions of Commun

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Justice and Correctional Services

04 November 2002
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Meeting report

JUSTICE AND CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE

JUSTICE AND CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
5 November 2002
EXTRADITION AND MUTUAL LEGAL ASSISTANCE TREATIES: FINALISATION; REGULATION AND INTERCEPTION OF COMMUNICATIONS AND PROVISIONS OF COMMUNICATION-RELATED INFORMATION BILL: BRIEFING ON NCOP AMENDMENTS; PREVENTION OF CORRUPTION BILL: DELIBERATIONS; CURRENT LEGISLATIVE PROGRAMME: BRIEFING

Chairperson:
Adv J H de Lange (ANC)

Documents Handed Out:
Regulation of Interception of Communications and Provision of Communication-Related Information Bill [B50B-2001]
NCOP Amendments to the Regulation and Interception of Communications Bill (Appendix 1)
Portfolio Committee Amendments to the Regulation of Interception of Communications Bill
Communications received from stakeholders on Blacklisting of stolen cellular phones
Please contact
info@pmg.org.za for a copy of the following.
Report on Treaty between RSA and the Federal Republic of Nigeria on Extradition
Report on Treaty between RSA and the Federal Republic of Nigeria on Mutual Legal Assistance
Report on Treaty between RSA and the People's Republic of China on Extradition
Report on Treaty between RSA and the French Republic on Mutual Legal Assistance
Report on Status of Bills for remainder of 2002, as at 30 October 2002

SUMMARY
The Committee adopted a number of treaties but were dissatisfied with time which lapsed before receiving them. A resolution was passed in this regard which would form part of the Committee's Report to Parliament. The Committee considered the NCOP amendments to the Regulation and Interception of Communications and Provisions of Communication-related Information Bill. The Minister had been approached by service providers requesting alterations to be effected to the Bill. Following their study tour to the United States, the delegation from the Committee wanted to incorporate some amendments.

The Committee concluded their initial deliberations on the Prevention of Corruption Bill. There was some concern that the proposals to amend and update the Acts effected by the Bill were too simplistic. The Department drafters were asked to create a comprehensive schedule of all affected legislation to ensure that there was a more sophisticated analysis of the treatment to each Act. This would ensure that there was no retrospective operation of the Bill and that Acts which prohibited membership of certain bodies or prohibition of holding certain offices would still remain effective.

MINUTES
The Chairperson, Adv de Lange, outlined the work the Committee had to complete this week. Their programme was as follows:
-to adopt the Treaties passed to them by the Department of Justice on Extradition and Mutual Legal Assistance;
-to be briefed on the NCOP amendments to the Interception Bill.
Mr de Lange (Department of Justice) would take the Committee through the legislative programme for the rest of the session followed by a briefing on the Prevention of Corruption Bill.

The Committee would spend the following week looking over the two Constitutional Amendment Bills.

There was also the outstanding matter of the Committee's trip to the Western Cape. It was proposed that the Committee should organise their visit of the Western Cape with the Portfolio Committees on Safety and Security and Correctional Services. This would allow for more comprehensive meetings to be held with all the experts getting together.

Adv de Lange reminded the Committee that there was still the intention for these three Committees and their heads of Departments to get together in an attempt to discuss co-ordination and blockages between the Departments.

Voting on Treaties
Adv de Lange repeated his criticism over the length of time it had taken for these Treaties to reach the Committee following the President's assent. There had been a delay of one and a half years and, even though the documents had been received by the Department in May 2002, they had only been presented to the Committee in late October 2002. He had asked for a report from the Department to explain the delay and he read this to the Committee. Whilst some of the delay had bee the cause of the Foreign Department, there was also clear ineptitude on the part of the Department. He asked Mr Allers from the Department to draft a Resolution which the Committee intended to adopt by the end of the meeting where it complained about the problems and undertook to amend the poor service in future.

Ms Chohan-Khota (ANC) said that she was aware that a report had been requested on the status of Treaties between the neighbouring southern African States, but she did not remember seeing the report. Mr Allers said that this report had been prepared and forwarded to the Committee. Adv de Lange asked that a simple report be prepared which showed in three columns the following information. Those countries which South Africa had entered into a Treaty with, those which it was negotiating a Treaty with; and those where no Treaty existed or was planned, with respect to both Extradition and Mutual Legal Assistance. Mr Allers undertook to prepare the Report.

The Committee unanimously passed the Reports.

Adv de Lange read out the Committee's Resolution regarding the 'inordinate' delay experienced in the administration process these documents went through. The Committee passed this unanimously. This Resolution would form part of the Committee's Report to Parliament and so would be brought to everyone's attention.

Interception of Communications and Provision of Communication-Related Information Bill Adv de Lange informed the Committee that, whilst he had been overseas in the USA, the Minister had been approached by the service providers to ask for alterations to be effected to the Bill. In addition, after discussion with the USA authorities on their experiences with this issue, the delegation from the Committee wanted to incorporate some amendments.

Mr Swart (ACDP) asked whether any changes the Committee made would require NCOP approval? Adv de Lange said no, the Bill was a Section 75 Bill, so the Committee had the power to make amendments to any matters brought back to it. If everyone was happy, then the matter would end with the Committee.

Dr Delport (DP) asked if the Minister of Communications was satisfied? Adv de Lange said that this was a very good point and asked Mr Labuschagne, the drafter from the Department, if the Minister had been informed of these alterations. He informed them that she had not been. Adv de Lange undertook to speak to the Director General about the changes to Clause 30.

Clause 16(8), (9) & (10)
This would now include a substantive amendment to allow for a so-called 'roving' warrant. In certain prescribed circumstances, a judge could grant an interception order on the basis of a particular person and not simply with regard to a particular phone or cell number. This also allowed for the police to tap local phone booths which a criminal was prone to using. This was introduced following interesting discussions with the FBI and by reference to the US legislative position. This was based on sub-article 11 of 2518 of Title 18 of Part 1 of Chapter 119 of the US Criminal Code.

(2)(d) & (5)(b)
These are consequential changes resulting from the insertion of sub (8).

Clause 30
There had been complaints by the service providers that the existing provisions of this clause could allow a corrupt Minister to specify the particular brands of facilities the service providers were able to use. Subs (2) and (3) were to be amended to ensure that the Minister could only designate the requirements of the facilities and not the facilities.

Sub (3)(a)(iii) also placed a time limit on how long these Regulations would remain in operation for. They would be effective for between three and five years. However, there was also an amendment as an insertion as sub (8) to allow for an affected service provider to ask for a reduction of any length of time after three years.

Clause 51(1)(a)(viii)
Mr Labuschagne, the Department drafter, pointed out that this sub-clause was to be deleted as it had been duplicated in another clause.

Clause 43
The heading of this section was to be altered slightly.

Clause 62(6)
This was an new insertion to extend the requirements of the sellers of sim-cards to take specific information from new purchasers, onto those existing users of the cards. Adv de Lange asked that the normal clause be inserted to (6)(c) that, in addition to the service providers being consulted, Parliament must also be consulted.

As there was no quorum present in the meeting, voting on the amendments was to be held over to next week.

Mr Labuschagne also informed the Committee that the provisions in the Bill relating to 'Blacklisting' were being challenged by the service providers and the prosecution and law enforcement agencies who largely, preferred the system of 'greylisting'. Adv de Lange explained to the Committee that this was a system whereby the stolen phone holder would receive intermittent messaged informing them that the phone had been stolen, but the phone would remain fully operational. In his opinion, this was an immoral stance for those organisations to take as they were compounding the crimes being committed.

Dr Delport, noting that the Bill was silent on this area, asked whether the market would regulate itself. He was told that this was the case, and the problem was that the different service providers were not operating the same systems or sharing information with the other providers. Greylisting, of course, also had the added bonus to the service provider to ensuring the phone still generated an income for them.

Ms Chohan-Khota (ANC) asked that the service providers be told to report to the Committee the number of grey- and blacklisted phones they had on record. Adv de Lange asked Mr Labuschagne to undertake this, reminding that Committee that the Bill now placed an obligation on people to report the theft of a phone, which was not there before.

The Committee thanked Mr Labuschagne for his sterling work on what had been an extremely difficult Bill.

Status on Legislation for Remainder of Session
Mr de Lange (Department of Justice) took the Committee through the status of the Bills remaining to be dealt with for the remainder of 2002. He was pressed on why some Bills, for example the Public Protector Bill and the Criminal Amendment Bill, were not included. He said he had drawn a firm line between those which were able to be dealt with and those which could not due to outside limitations. For example, the Criminal Amendment Bill could not be introduced until next year due to lack of space in the Cabinet cycle. Adv de Lange asked that these types of Bills be included as a 'B' Team, but that the Committee should still see their progress.

Adv de Lange was told that the Committee had passed between thirteen and fourteen Bills this session to date and there was another thirteen to fourteen outstanding.

Ms Camerer (NNP) asked whether the Cabinet had approved the Constitutional Fourth Amendment Bill, particularly with regard to the retrospective provisions of the Bill. She was told that it had been approved on 23 October 2002. She also asked what had happened to the Terrorism Bill and was informed that it was not coming to the Committee.

Mr de Lange informed the Committee that there had also been a legal opinion sought from Adv Daniels on the salary mechanisms for judges. Adv de Lange asked for a copy of this request for an opinion to be passed to Justice Chaskalson of the Constitutional Court to show the information the Committee was requesting.

Mr de Lange also referred to the Bill introducing the compulsory testing for HIV/AIDS of everyone convicted of a sexual offence.

Ms Camerer (NNP) asked if this was not contrary to the South African Law Commission's recommendation in their most recent report? She was informed that their recommendation was that no new offence should be created for those persons who knowingly suffered from HIV/AIDS yet had sex with someone without informing their partner of their HIV+ status.

Mr de Lange said that there was also a Magistrates Amendment Bill to replicate the process the Committee were going through with regard to Judges under the Judicial Conduct Tribunals Bill and the Judicial Service Commission Amendment Bill.

Prevention of Corruption Bill
The Committee continued with their deliberations of the Prevention of Corruption Bill from where they had previously left off. Adv de Lange reminded the Committee that there would be no voting on its provisions, so no end result had to be reached but he encouraged the Members to comment on the issues raised.

Clause 20
This introduced the obligation of reporting corrupt transactions. There was no general requirement in South African law to report crimes. Therefore, the clause had been drafted with a requirement that the National Director of Public Prosecutions approve any prosecutions under this section. This had the benefit of ensuring that people who had been too frightened to report a problem, for example, were not further victimised. Also, the NDPP was responsible for the Witness Protection Programme.

Clause 20A
Mr Nel, the drafter from the Department, said he had realised that he had only made this clause refer to those who accepted or had agreed to accept an offer and it did not relate to those offering. He undertook to rectify this omission.

The Committee discussed the presumption in the section. Adv de Lange asked what the Constitutional Court would make of the presumption enclosed therein being extended to all crimes.

Mr Nel said that it was not appropriate for this to happen and in any case, this presumption was very narrow in its operation. It only related to a select group of people.

Dr Delport (DP) said that the presumption, in practice, only forced the accused into the witness box. They were still able to raise reasonable doubt. The presumption in this case was quite narrow.

Mr Nel pointed out a typing error in footnote 59 on page 32 of the working document. The footnote should read 'If option 2 of subclause (1) is approved, subclause (2) should be deleted.'

Clause 20B
Mr Nel said that this clause sought to regulate the maximum penalties the courts can hand down. Adv de Lange said that it was important that District Magistrates were not given the power to award sentences of 25 years. However, the Committee should not enact legislation which encourages the Prosecutors to take all the cases to the Regional or High courts. Mr Nel said that the cases would all go for automatic review anyway as Magistrates with less than seven years experience had all sentences over six months automatically reviewed and those with more than seven years experience had all sentences of more than one year reviewed.

Mr Jeffery (ANC) said that he felt the system of automatic review led to great injustice to those convicted persons who could not afford to apply for or meet Bail.

Adv de Lange asked Mr Nel to put together some suggestions, including, for example, that the Minister designates specific District Courts where these cases could be heard, for example.

Dr Delport said that, as far as he was concerned, the problem did not lie with the sentencing so much as with the complexity of the case. This may prove to be unsuitable for inexperienced Magistrates. The Committee accepted his point.

Clause 20B(2)
This clause relates to those conspiring to commit the offence.

Clause 20B(3)
This sub-clause follows the same structure as the minimum sentencing clause but relates to greater sums of money, a group or syndicate or a law enforcement officer.

Clause 20B(4), (5) & (6)
Adv de Lange asked that sub (4) be removed to the end of the clause.

Clause 21
The Committee looked at the provisions relating to the extra-territorial jurisdictional aspects of the Bill and the different provisions for citizens and foreign nationals. Dr Delport said that it was important to note that the different options sought to criminalise conduct which affected South Africa wherever it was undertaken. The option was to make it a crime to commit the offence anywhere in the world regardless of whether it had any effect on South Africa. The latter option was not appropriate.

Adv de Lange also queried whether the words 'person or business' were wide enough as it was not automatically clear that government officials were included. He also was unclear as to whether 'affected' was the appropriate wording. Mr Nel said that these suggestions were drawn from the German Legislation.

Clause 22
Mr Nel said that he was motivating for the inclusion of this clause.

Clause 23
This clause remained unchanged, notwithstanding the proposed changes to the magistrate's sentencing.

Clause 24 & 25
The Committee were concerned that the proposals to amend and update the Acts effected by the Bill were too simplistic. Mr Nel and Adv Gordon were asked to create a comprehensive schedule of all the affected legislation to ensure that there was a more sophisticated analysis of the treatment to each Act. This was to ensure that there was no retrospective operation of the Bill and that Acts which prohibited membership of certain bodies or prohibition of holding certain offices would still remain effective.

Dr Delport asked if it was really necessary to repeal the earlier Acts?

Mr Jeffrey (ANC) felt it was tidier to repeal the old Acts but asked if the Bill perhaps needed a transitional clause to explain what the position was with regard to those who committed the offence prior to the signing of the Act?

The Committee, having concluded their initial deliberations, was asked to think over the points raised by this briefing.

The meeting was adjourned.

Appendix 1:
The Select Committee on Security and Constitutional Affairs, having considered the subject of the Regulation of Interception of Communications and Provision of Communication-related Information Bill [B 50B—2001] (National Assembly—sec 75), referred to it, reports the Bill with proposed amendments, as follows:

ARRANGEMENT OF SECTIONS

1. On page 4, in line 48, after "listed" to insert "or other".

CLAUSE 16

1. On page 16, in line 39, after "(i)" to insert "subject to subsection (8),".

2. On page 17, in line 52, to omit "the".

3. On page 17, in line 53, after "(i)" to insert "the".

4. On page 17, in line 56, after "(ii)" to insert "subject to subsection (8), the".

5. On page 17, in line 56, after "communications" to insert "are".

6. On page 18, after line 24, to insert the following subclauses:

(8) The requirements of subsections (2)(d)(i)(aa) and (5)(b)(ii) relating to the description of the facilities from which, or the place at which, the communication is to be intercepted do not apply if, in the case of an application for the issuing of an interception direction which authorises the interception of—

(a) a direct communication—

(i) the application contains full particulars of all the facts and circumstances as to why such description is not practical;

(ii) the application indicates the identity of the person whose communication is required to be intercepted; and

(iii) the designated judge is satisfied, on the facts alleged in the application, that such description is not practical; and

(b) an indirect communication, the —

(i) application indicates the identity of the customer whose communication is required to be intercepted;

(ii) applicant submits proof that there are reasonable grounds to believe that the actions of the customer concerned could have the effect of preventing interception from a specified facility;

(iii) designated judge is satisfied that sufficient proof has been submitted; and

(iv) interception direction authorises the interception only for such time as it is reasonable to presume that the customer identified in the application is or was reasonably close to the instrument through which such communication will be or was transmitted.

(9) The interception of a communication under an interception direction to which the requirements of subsections (2)(d)(i)(aa) and (5)(b)(ii) do not apply by reason of subsection (8)(a) may not take place until the place where the communication is to be intercepted is determined by the authorised person who executes the interception direction concerned or assists with the execution thereof.

(10) (a) A telecommunication service provider to whom an interception direction referred to in subsection (8)(b) is addressed, may in writing apply to a designated judge for an amendment or the cancellation of the interception direction concerned on the ground that his or her assistance with respect to the interception of the indirect communication cannot be performed in a timely or reasonable fashion.

(b) A designated judge to whom an application is made in terms of paragraph (a) must, as soon as possible after receipt thereof—

(a) inform the applicant concerned of that application; and

(b) consider and give a decision in respect of the application.

CLAUSE 30

1. On page 29, in line 35, after "may" to insert ", subject to subsection (8),".

2. On page 29, in line 35, after "years" to insert "and not more than five years".

3. On page 30, after line 24, to insert the following subclause:

(8) If a period of more than three years has been determined in terms of subsection (2)(a)(iii), the Cabinet member responsible for communications may, upon application by the telecommunication service provider concerned and in consultation with the relevant Ministers, reduce that period to a period which may not be less than three years by issuing an amended directive under subsection (2)(a).


CLAUSE 51

1. On page 40, from line 16, to omit subparagraph (viii).

CLAUSE 57

1. On page 42, in line 19, after "listed" to insert "or other".

CLAUSE 62

1. On page 45, after line 36, to insert the following subclause:

(6) (a) Any person who, at the fixed date, is the owner of a cellular phone or a SIM-card must, in the manner and within the period determined by the Minister by notice in the Gazette, provide the information referred to in section 40(1) to the person who sold, or in any other manner provided, the cellular phone or SIM-card to him or her, or to the telecommunication service provider or other person mentioned in such notice.

(b) Different periods may be determined in terms of paragraph (a) in respect of—

(i) owners whose surnames start with different letters of the alphabet, or whose dates of birth fall in different months; or

(ii) categories of numbers of cellular phones or SIM-cards.

(c) Before the Minister exercises the powers conferred on him or her by paragraph (a), he or she must consult the telecommunication service providers concerned.

(d) Section 40(2) and (3) applies, with the necessary changes, in respect of a telecommunication service provider or other person to whom information has been provided in terms of paragraph (a).

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