Information Regulator functions: briefing; Criminal Matters Amendment Bill [B20-2015]; Judicial Matters Amendment Bill [B2-2015]: adoption

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Justice and Correctional Services

20 October 2015
Chairperson: Mr M Motshekga (ANC)
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Meeting Summary

The Department of Justice and Constitutional Development (DOJ &CD) presented the final draft of the A list and B version of the Criminal Matters Amendment Bill and Judicial Matters Amendment Bill and the Committee adopted both Bills.

The DOJ &CD presented on the establishment of the of the Information Regulator as provided for in Part A of Chapter 5 of the Protection of Personal Information Act 2013 (PPIA) and the members of which are a Chairperson and four ordinary members, of whom at least two ordinary members must be appointed on a full-time basis. The Information Regulator is a juristic person that is independent and subject only to the Constitution and the law and should be impartial and perform its functions and exercise its powers without fear, favour or prejudice. Its functions include monitoring and enforcing compliance by the public and private with the provisions of the PPIA and exercising the powers conferred upon it relating to the access of information as regulated in terms of the Promotion of Access to Information Act (PAIA). The functions of the PPIA also entailed other elements such as: exemptions, prior authorisation, codes of conduct, administrative fines, and regulations.

Some Members were uncomfortable that the Information Regulator appeared to have been statutorily granted too much independence and autonomy which they felt would remove the supervisory role of Parliament over the functions of the IR. They took the position that a workshop which would broadly consider the functions of the Information Regulator and all other salient issues would be in order. It was agreed that the workshop would be held within the first and second week In November 2015.

Meeting report

Criminal Matters Amendment Bill: consideration and adoption
Mr Lawrence Bassett, Chief Director of Legislative Drafting, DOJ & CD, stated that they had prepared the A list of proposed amendments and they had incorporated these into the B version of the Bill.

Ms Ina Botha, Principal State Law Adviser, briefly guided the Committee through the A list and B version of the Bill to show that all the amendments had been effected by making references to the relevant pages of the documents that reflected the amendments.

The Chairperson asked members if they were satisfied with the A and B versions as presented.

Members confirmed their satisfaction with the documents.

The Chairperson requested a member to move for the adoption of the Bill. Ms M Mothapo (ANC) moved for the adoption of the Bill. Mr B Bongo (ANC) seconded the move for adoption.

The Chairperson asked if there was any opposition to the move for adoption.

Ms G Breytenbach (DA) stated that she would relay the developments in respect of the Bill to her caucus.

The Chairperson confirmed that no one was opposing the Bill.

He declared the Bill to be adopted.

Ms C Pilane-Majake (ANC) read out the report of the Committee on the Bill as follows:

The Portfolio Committee on Justice and Correctional Services (the Committee), having considered the Criminal Matters Amendment Bill[B20 – 2015]. (National Assembly – section 75), referred to it and classified by the Joint Tagging Mechanism (JTM) as a section 75 Bill, reports as follow:

The Bill was intended to build safer communities by addressing the threat and damage that the theft of metal causes to essential infrastructure that is used to provide or distribute basic services to the public.

The Committee wishes to highlight that criminal activity of this kind poses substantial risk to public safety, electricity and water supplies, communications and transportation, among others.

The Committee was of the view that the legislation was pressing as the level of essential infrastructure-related crimes in South Africa was unacceptably high and increasingly involved organised syndicates. In the Committee’s view, it must act decisively to combat this form of criminal activity that disrupted the provision of basic services, relating to energy, transport, water, sanitation and communication. These disruptions were not only costly but impacted on the daily of South Africans who must do without water or electricity, for example, energy, transport, water, sanitation and communication.

Given the impact of this form of criminal activity, the Bill also introduced strict conditions for the granting of bail for those accused of committing these kinds of offences, as well as making minimum sentences applicable on conviction.

During the deliberations, the Committee considered proposals to extend the scope of the Bill to include loss, damage or the tampering with of essential infrastructure that provide other basic services – health and education, for example. The Committee believed that there was merit in the proposal but was concerned that this would delay the Bill, which was considered urgent. The Committee, therefore, would request the Ministry to look into the proposal and to report to Parliament on the outcome of its findings within six/twelve months of the Report. Report to be considered

The Chairperson asked members if they were satisfied with the report.

Ms M Mothapo (ANC) drew attention to clause 3 of the report. She stated that the impact of the criminal activity represented by the cable theft was not only restricted to South Africans. It was imperative to note that anyone living in South Africa including foreigners who were resident in the country or visitors could be affected by such criminal activity. She therefore suggested that clause three of the report should be amended to reflect this point.

Ms Pilane-Majake stated that she was in support of Ms Mothapo’s point.

Mr Bassett stated that he was in agreement considering that anyone who was in the country would ordinarily be protected under South Africa law from any criminal activity.

The Chairperson agreed with the opinion of members.

The Committee formally adopted the report.

Judicial Matters Amendment Bill: consideration and adoption
Mr Bassett stated that all the proposed amendments had been effected in the documents. He briefly guided the Committee through the A list and B version of the Bill to show that all the amendments had been effected.

The Chairperson asked if anyone was opposed to the adoption of the Bill.

No member was in opposition.

The Committee formally adopted the Bill.

Ms Breytenbach stated that she would relay the developments in respect of the Bill to her caucus.

The Chairperson declared the Bill as adopted unanimously.

He read the report of the Committee on the Bill as follows:

“The Portfolio Committee on Justice and Correctional Services (the Committee), having considered the Judicial Matters Amendment Bill [B2 – 2015]. (National Assembly – section 75), referred to it and classified by the Joint Tagging Mechanism (JTM) as a section 75 Bill, reports the Bill with amendments [B2-2015]. Report to be considered.”

The Committee formally adopted the report.

Information Regulator functions: Protection of Personal Information Act 2013: briefing by DOJ&CD
Mr Henk du Preez, State Law Adviser, stated that there was a need for the DOJ & CD to give an indication of the functions of the Information Regulator so that the Committee would be able to identify the requirements upon which the right candidate would be interviewed and selected for the purpose of recommending that person to the President for the position.

He stated that the Open Democracy Bill was introduced in 1999 which was constituted of three main components; these were the access to information, data protection, and protected disclosures.

There had been the implementation of certain provision in the Protection of Personal Information Act (PPIA). Section 1 (definitions), Part A of Chapter 5 (establishment of the Information Regulator) and sections 112 and 114 (Regulations and procedure for making Regulations, respectively) were implemented on 11 April 2014. Only these provisions were implemented in order to ensure the process for the appointment of the members of the Information Regulator. Section 46 of the PPIA provided that the members of the Information Regulator would be entitled to such remuneration as determined by the Minister of Justice and Correctional Services in consultation with the Minister of Finance. The members were a Chairperson and four ordinary members, of whom at least two ordinary members must be appointed on a full-time basis (s 41 of PPI). Members were to be appointed by the President on recommendation by the National Assembly (recommendation must also indicate which ordinary members should be appointed on a full-time and part-time basis).

On its establishment, the Information Regulator (IR) was a juristic person that was independent and subject only to the Constitution and the law and must be impartial and perform its functions and exercise its powers without fear, favour or prejudice (s 39 of PPI). The Chairperson was mandated to perform his/her duties in accordance with the PPIA. One ordinary member must perform his/her duties in terms of the PPIA and the other ordinary member must perform his/her duties in terms of the Promotion of Access to Information Act 2000 (PAIA). The two remaining ordinary members must perform their duties in terms of the PPIA or PAIA or in terms of both pieces of legislation. The IR was mandated to provide its own administration, by appointing a Chief Executive Officer and such other members of staff as may be necessary (s47 of PPIA). Funds of the IR would consist of such sums of money that Parliament appropriated annually.

The functions of the IR included monitoring and enforcing compliance by the public and private with the provisions of the PPIA and exercising the powers conferred upon the IR relating to the access of information as regulated in terms of the PAIA. The functions of the PPIA also entailed other elements such as:

Exemptions: Chapter 4 dealt with the Regulator's power to grant exemptions (sections 36 and 37). Section 36, among others, provided that the processing of personal information would not be in breach of a condition for the processing of personal information if the Regulator granted an exemption in terms of section 37.

Prior Authorisation: Chapter 6 provided regulation of “prior authorisation”. Section 57 of the PPIA compelled a responsible party to obtain prior authorisation from the Regulator prior to any processing of certain categories of personal information such as information on criminal behaviour or on unlawful or objectionable conduct on behalf of third parties.

Codes of Conduct: Chapter 7 dealt with Codes of Conduct. The development of codes of conduct would contribute to the proper implementation of the conditions for the lawful processing of personal information, as reflected in chapter 3 of the Act, in each sector. Section 60, among others, provided that a code should prescribe how the conditions were to be complied with within specific sectors as far as the processing of personal information was concerned. The Regulator could, in terms of section 61, issue codes on its own initiative or on application by persons who process personal information.

Administrative fines: The Regulator was also empowered to make a determination that a responsible party should take specified action, or cease to act in a specific manner, within a specified period for the purpose of complying with the provisions of the Bill. Failure to comply with the notices would be a criminal offence. Sections 95 – 98 aimed at giving effect to the aforementioned. Section 109 of the PPIA also provided that the Regulator was empowered to impose administrative fines for the alleged commission of an offence in term of the Act.

Regulations: Section 112 (2) of the PPIA empowered the Regulator to make subordinate legislation in the form of regulations, among others, with regard to: the manner in terms of which a data subject might object to the processing of personal information; the processing f health information by certain responsible parties; the manner and form in terms of which a complaint should be submitted; the Regulator acting as conciliator in relation to any interference with the protection of personal information; the settlement of complaints.

The PPIA also aimed to assign all the responsibilities of the South African Human Rights Commission (SAHRC) in terms of PAIA to the Regulator. The Regulator as the sole functionary, apart from the courts, would consider complaints against decisions that had been taken by public or private bodies in respect of request for access to records of the bodies concerned. The complaints procedure regulated in terms of PAIA would be amended as follows:

Insofar as certain public bodies were concerned, the compulsory internal appeal procedure would be retained. A party who felt aggrieved by a decision of the relevant authority would have an option to either submit a complaint to the Regulator or to approach the court for appropriate relief; and

A party who is aggrieved with a decision by the head of a private body would be able to either submit a complaint to the Information Regulator in respect of the decision concerned, or to approach the court for appropriate relief.

In respect of the implementation of the remaining provisions of the PPIA, the remaining provisions of the PPIA namely, chapters 1 -4 and 6 – 12, could only be implemented once the IR had been established. These chapters created not only certain obligations in respect of the processing of personal information, but also created certain rights and remedies. Since the Regulator would play a crucial role in monitoring compliance by responsible parties with the provisions of the Act and handling complaints by data subjects, the provisions concerned could only be implemented after the establishment of the Regulator.

As regards the importance of the IR and its impact on the broader society, the IR would among others be responsible for a number of things such as:

- Providing education by promoting an understanding and acceptance of the PPIA, undertaking educational programmes; and giving advice to data subjects in the exercise of their rights;

- Monitoring and enforcing compliance by public and private bodies with the provisions of the PPIA;

- Consulting with interested parties by acting as mediator between opposing parties;

- Handling complaints by, among others, receiving and investigating complaints about alleged violations of the protection of personal information of data subjects and reporting to complainants in respect of such complaints;

- Conducting research and to report to Parliament from time to time on the desirability of the acceptance, by South Africa, of any international instrument relating to the protection of the personal information of a data subject; and

- Facilitating cross-border cooperation in the enforcement of privacy laws by participating in any initiative that is aimed at such cooperation.

The IR would in terms of the PAIA, be the sole functionary, apart from the courts, to consider complaints against decisions that had been taken by public and private bodies in respect of requests for access to records of the bodies concerned.

Discussion
The Chairperson noted that the IR would be able to draft regulations to ensure its independence. He asked whether the regulations would be presented to Parliament for approval, and if not, how then would the Regulator be accountable to Parliament. He felt uncomfortable that the IR was being granted too much independence and autonomy to the extent that its actions would be too far removed from scrutiny and review.

Some other Members appeared to generally share the same opinion and line of thought.

Mr Henk du Preez replied that the Regulator was not empowered to draft its own regulations in order to ensure its own independence. The idea of Parliament was to work towards having a Regulator who would function separately from the Executive. There were extensive procedures the Regulator had to comply with for making the regulations referred to by the Chairperson and these procedures also demanded that the regulations would be brought before Parliament.

Mr B Bongo (ANC) stated that there was a need for the Committee to be more informed in respect of the operation of the Regulator. It appeared that there was a need to convene a workshop that would undertake broader discussions in order to fully grasp the principles upon which the Regulator would operate. It would also be helpful to consider the position in other comparable jurisdictions to see if some jurisdictions had similar provisions to the South African provisions. If so, then it would be helpful to see how those jurisdictions had dealt with the issue.

Ms Pilane-Majake stated that it appeared that there were issues in respect of the IR that required more clarity. It would not be ideal for the Committee to progress with a subject matter that it was not certain about. She observed that the PPIA had been deliberated upon by the Committee of the Fourth Parliament and not by the present Committee. In view of this, she would support the earlier suggestion that a workshop deliberating upon the mechanics of the IR would be in order.

The Chairperson asked for what would be the likely process if the Committee was to approve the setting up of a workshop to discuss the IR. He also asked whether it was doable to have the workshop and when it could be held. He further stated that a research paper dealing with the desirability of the PPIA and the developments that gave rise to the IR would also be in order to provide further clarity on the matter.

Mr Bassett replied that it was imperative for the workshop to be held as soon as possible because the PPIA was an important legislation that had to be implemented.

Mr Bongo saidd that the workshop need not be more than a one-day affair. Such a workshop would deal with all the salient issues in respect of the IR.

The Chairperson stated that the workshop would be held during the first or second week in November 2015. The specific time and date would be conveyed as soon as possible

He thanked everyone for coming to the meeting and adjourned the meeting.

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