A Parliamentary Legal Adviser explained the nitty-gritty of what the legislative processing of a Private Member’s Bill entails. A member may introduce any bill, except money bills. A bill dealing with substantially the same subject matter may not be introduced more than once in the same annual session. The Bill must comply with all the formal requirements set out in the National Assembly Rules. The member must publish the explanatory summary of the Bill or the Bill itself in the Government Gazette and the publication may contain an invitation for public comment to be submitted to the Secretary to Parliament. The Secretary to Parliament is liable for costs incurred in the publication of Bills.
Interim measures provide that the Committee must provide reasonable notice to the Member in charge of the bill on when it plans to consider the bill; and after due deliberation, consider a motion of desirability on the subject matter of the Bill. The Committee consideration of a Private Members Bill is only on the principle or subject of the Bill and a motion of desirability is decided on this basis. The Committee may, however, only consider a motion of desirability after due deliberation. Guidance on what to take into account when considering the desirability of the Bill could be taken from Rule 235A of the 7th Edition of the Rules of the National Assembly which listed the following factors about the bill:
- does it go against the spirit, purport and object of the Constitution;
- seek to initiate legislation beyond the legislative competence of the Assembly;
- duplicate existing legislation or legislation awaiting consideration by the Assembly or Council;
- pre-empt similar legislation soon to be introduced by the National Executive;
- would result in a Money Bill; or
- is frivolous or vexatious.
Once the Committee has considered these factors, it would be in a position to assess the general feasibility of the Bill and the motion of desirability. If the motion of desirability is rejected, the Committee must immediately table its report in the House. If the motion of desirability is adopted, the Committee could proceed to consider the details of the Bill in the normal way.
Members asked if factors such as the Committee already having a Bill in the pipeline were covered in the motion of desirability; if a Bill could be rejected based on the absence of one of the factors listed in Rule 235A; about the legal status of Rule 235A as Rule 235 had been declared unconstitutional by the Constitutional Court on 9 October 2012 and accordingly deleted.
The Protection of Critical Infrastructure Bill briefing was done by MP Mbhele who noted the objects of the Bill:
- To repeal the National Key Points Act (NKPA) 102 of 1980 and related legislation;
- To provide for a Register containing the areas declared as Critical Infrastructure (‘Key Points’ currently);
- To set out the rights and duties of owners of Critical Infrastructure, provide for the limitation of the liability of the State and provide for parliamentary oversight over the Critical Infrastructure Board;
- To provide for the establishment, composition, functions/duties, meetings, financing and reporting of Board;
- To provide for the suspension and removal of Board Members,
- To provide for the determination and declaration of Critical Infrastructure and ensure that security measures are implemented at Critical Infrastructure; and
- To create offences and penalties and provide for transitional arrangements following the repeal of the National Key Points Act.
The NKPA was enacted in 1980 by the Apartheid Government in response to what was characterized as acts of sabotage and terrorism. The Act was subsequently used as a tool of suppression. It gave the Minister of Defence of the Apartheid-era a broad authority to declare any place in South Africa a National Key Point. This responsibility is presently vested in the Minister of Police. The Act grants wide and far-reaching powers to the Minister of Police without scrutiny. This is at odds with the values of open and transparent governance which underpin the Constitution. Given therefore the nature of the NKPA, there is a need for the entire Act to be repealed as it has no place in a constitutional democratic South Africa.
Presently, the NKPA has permitted an environment where critical infrastructure and related installations could be used to benefit or protect partisan agendas, conduct and conceal corrupt activity under the guise of national security considerations. He gave the matter of security upgrades at the President’s private home in Nkandla as a case study on how the NKPA may be used unjustly to bury information and to frustrate oversight.
The Bill seeks to establish a board to oversee, determine and declare the functions surrounding the protection and classification of critical infrastructure installations, as opposed to the Police Minister having sole discretion to declare which areas or structures need government protection. To determine Critical Infrastructure, a site must fall into one of several categories as contained in clause 13.
Chapter 6 of the Bill allows for much needed parliamentary oversight to counteract unfettered executive power as contained in the NKPA. The Bill requires that two types of reports be tabled on a quarterly basis by the Minister of Police to the National Assembly, the unclassified report and the classified report. The requirement of these two lists strike a balance of respecting the public’s right of access to information, ensuring parliamentary oversight and preserving reasonable security measures at critical infrastructure sites.
The Bill seeks to introduce changes to the way regulations are formulated by the Ministry about Critical Infrastructure as there has been a tendency to grant unfettered regulatory powers to Ministers to implement regulations which have significant and far-reaching consequences for the implementation of legislation. This practice goes against the rule of law which requires that the law be certain, and that the exercise of powers and discretions under the law not be undertaken in an unrestricted manner. Clause 21 therefore marks a break with this practice by requiring that the formulation of regulations be a consultative process between the Minister and the National Assembly. This process not only encourages a transparent process in the formulation of the specified regulations but also further strengthens Parliament’s position as a legislative and oversight body. Clause 22 of the Bill addresses transitional arrangements aimed at preserving the security of existing National Key Points under the NKPA and ensures that they are given the appropriate protection.
Mr Mbhele asserted that the Ministry of Police had been aware of the need for such legislative reform for approximately two years as the Minister stated in his budget speech to Parliament in May this year, yet, since the introduction of this Private Member’s Bill in August, no meaningful progress on the repeal of the NKPA had seemingly been made by the executive. Therefore it is incumbent on this Portfolio Committee, to ensure that its legislative framework is in line with the spirit, values and prescripts of the Constitution and that it acts to remedy the present situation regarding the NKPA.
SAPS and the Civilian Secretariat of Police briefed the Committee on the state of the draft NKPA Amendment Bill as instructed by the Chairperson.
The undesirability of the Protection of Critical Infrastructure Private Member’s Bill was common ground for most Members. Most of their concerns hinged on the fact that there was currently an ongoing process within Cabinet and there was no way two similar processes could be run at the same time. The point was made that there was no place in the world where the national key points of a government were a matter of public knowledge, there was a concern that this Bill was actually an attempt to unmask what had been previously masked as in the Nkandla case, and the financial implications of the new Bill were unknown were raised by those opposed to the Private Member’s Bill.
Other Members emphasised that the legislature, especially the Committee must be careful not to abrogate its functions to the Executive
A heated back and forth discussion ensued between Members as to the desirability of the Bill. The introducer of the Bill was requested to put the Bill on a hold whilst the Committee waited for an outcome on the ongoing bill from the Executive after which he could integrate this new Bill into the ongoing one if there was a need for it. This proposal was firmly rejected by the introducer of the Bill.
As a result, the Committee had to cast a vote to determine the motion of desirability of the Bill. The voting was suspended till the following week.
A brief update was given of the changes to the Committee’s programme for the upcoming week. On Wednesday11 November, the Committee would start with final deliberations and adoption of the Rule 201A enquiry report and the Minister of Police would also brief the Committee on the Reference Group. The IPID hearing scheduled for Wednesday would be rescheduled a later date. Processing of the Committee’s reports would be scheduled for Fridays whilst the last Parliament week would be used for deliberations with SAPS as well as the National Prosecuting Authority on the Committee’s visit to Kruger in February.
Legislative processing of a Private Member’s Bill
The Parliamentary Legal Adviser, Ms Desiree Swartz, explained that the legislative processing of a private member’s bill is regulated by the interim measures for the introduction and consideration of private members’ bills which was tabled in November 2012. A member may introduce any bill, except money Bills and section 214 Bills which deal with the equitable share and allocation of revenue. A Bill dealing with substantially the same subject matter may not be introduced more than once in the same annual session.
Such Bills must comply with all the formal requirements set out in Rules 237 and 241, whilst a Bill seeking to amend the Constitution must also comply with Rule 258. The member must publish the explanatory summary of the Bill or the Bill as it is to be introduced in the Government Gazette and the publication may contain an invitation for public comment to be submitted to the Secretary to Parliament. The Secretary to Parliament is liable for costs incurred in the publication of Bills. The member must submit to the Speaker the following: a copy of the bill or a copy of the Gazette in which it was published; a copy of the explanatory summary if the bill was not published, a supporting memorandum which must explain the objects of the bill and give an account of the expected financial implications for the State and state the proposed classification of the Bill. The introduction of the Bill would be published in the Announcements, Tablings and Committee Reports (ATC). The Bill is thereafter deemed to have been read a first time and the Bill together with all relevant documentation is thereafter referred to the relevant committee for consideration and report.
Interim measures provide that the Committee must provide reasonable notice to the member in charge of the bill before it considers the legislation; and after due deliberation, consider a motion of desirability on the subject matter of the Bill. The Committee’s initial consideration of a Private Members Bill is intended to be on the principle or subject of the Bill. The motion of desirability is therefore decided on this basis. The Committee may, however, only consider a motion of desirability after due deliberation. It would be expected that the Committee allow the member responsible for the Bill an opportunity to explain and motivate for the legislation. Best practice would also require the Committee to facilitate an engagement with the relevant department or agency on the need for, and practicability of the Bill. It might be that the government intends introducing similar legislation in the near future, or the policy direction may be very different from the policy of government. The Committee may also decide to have public hearings for those who have made submissions on the Bill when it was initially published in the Government Gazette. It may at the same time invite any other interested parties to make a submission.
Further guidance on what to take into account when considering the desirability of the Bill could be taken from the Rule 235A of the 7th Edition of the Rules of the National Assembly. Rule 235A has been severed only because it is meaningless in the absence of Rule 235, to which it owes its existence. Therefore the guidance provided in Rule 235A may be used by the Committee when it decides on the desirability of the Bill. Rule 235A listed the following as factors that had to be taken into account in its consideration. They are whether the Bill:
- goes against the spirit, purport and object of the Constitution;
- seeks to initiate legislation beyond the legislative competence of the Assembly;
- duplicates existing legislation or legislation awaiting consideration by the Assembly or Council;
- pre-empts similar legislation soon to be introduced by the National Executive;
- would result in a Money Bill; or
- is frivolous or vexatious.
Once the Committee has considered these factors set, it would be in a position to assess the general feasibility of the Bill and the motion of desirability. If the motion of desirability is rejected the Committee must immediately table its report in the House. If the motion of desirability is adopted, the Committee could proceed to consider the details of the Bill in the normal way. This would likely include facilitating wider public participation whereby the Committee calls for more public comments. The Committee must thereafter report on the Bill to the House. The Bill would thereafter be placed on the Order Paper for its second reading.
Ms M Molebatsi (ANC) wanted to know whether items such as the Committee already having a Bill in the pipeline were covered for in the motion of desirability? Who was in charge of the costing of the Bill?
Mr P Mhlongo (EFF) asked what the factors were that governed desirability in order to avoid
Mr J Maake (ANC) asked whether a Bill could be rejected based on the absence of one of the factors listed under desirability.
Responding, Ms Swartz commented that any of the factors or maybe a group of the factors put together
would be to appropriate to decide for the Bill. The subject matter meant that it would be in the interest and
benefit of the country to have the Bill at this time. If, however, the practicality of such a Bill at this time was not feasible, it would be better left till later on possibly so that the Bill could be improved upon. Having a Bill in the pipeline is a factor that would definitely determine whether a Bill would be considered desirable or not but essentially, it would be for the Committee to decide. The responsibility for the costing rests on the member to say that this was what the Bill would likely cost but the most suited to proffer proper costing would be the Department.
Mr Z Mbhele (DA) asked for legal clarity on the status and substantive meaning of Rule 235A which was derived from Rule 235 which had been declared invalid. Did it mean that Rule 35A had been neutralized of its effects or suspended?
Mr L Ramatlakane (ANC) wanted clarification as to whether a Bill is a legal expression of a policy that needed to be addressed or not. Must a Bill be derived from a policy?
The Legal Adviser replied in the affirmative to both questions. When a rule is severed, it meant that the rule had been declared unconstitutional and no longer appeared in the rule book. However, it could still be used by the Committee as a guiding rule as to what to take into account when decision would be made.
Mr Mbhele interrupted the Legal Adviser with the permission of the Chairperson to ascertain based on Ms Swartz response whether the guiding factors were legally binding despite the Rule being severed and declared invalid.
Ms Swartz replied that at the moment the factors could merely give guidance to the Committee but the Committee had the prerogative to decide whether they were binding rules or not. This was because the current rules before the Committee gave some guidance but did not tell the Committee categorically what to take into consideration. The Committee must therefore decide what factors to consider in their due deliberations.
Briefing on Protection of Critical Infrastructure Bill
Mr Z Mbhele (DA) presented the Critical Infrastructure Bill to the Committee highlighting the objects of the Bill. They were:
- To repeal the National Key Points Act (NKPA) 102 of 1980 and related legislation;
- To provide for a Register containing the areas declared as Critical Infrastructure (‘Key Points’ under current legislation);
- To set out the rights and duties of owners of Critical Infrastructure, provide for the limitation of the liability of the State and provide for parliamentary oversight over the Critical Infrastructure Board (the Board);
- To provide for the establishment, composition, functions and duties, meetings, financing and reporting of the Board;
- To provide for the suspension and removal of Members of the Board, to provide for the determination and declaration of Critical Infrastructure and ensure that security measures are implemented at Critical Infrastructure; and
- To create offences and penalties and provide for transitional arrangements following the repeal of the National Key Points Act.
The NKPA was enacted in 1980 by the Apartheid Government in response to what was characterized as acts of sabotage and terrorism. The Act was subsequently used as a tool of suppression. By design, the Act was intended to protect and strengthen the Apartheid State and it gave the Minister of Defence of the Apartheid-era a broad authority to declare any place in South Africa a National Key Point. This responsibility is presently vested in the Minister of Police. Furthermore, the Act grants wide and far-reaching powers to the Minister of Police without scrutiny. This state, Mr Mbhele proposed is at odds with the values of open and transparent governance which underpin the Constitution. Given therefore the nature of the NKPA, there is therefore a need for the entire Act to be repealed as it has no place in a constitutional democratic South Africa and should not have been permitted to exist on the statute books for this long. The desirability of such legislative reform had been previously indicated by the former Police Minister Nathi Mthethwa who initiated a review process but the Committee is yet to receive its outcome.
Thus, the presently proposed Bill seeks to protect infrastructure critical to the national security of the Republic in a manner consistent with the Constitution in an open and transparent society.
Presently, the NKPA has permitted an environment where critical infrastructure and related installations could be used to benefit or protect partisan agendas, conduct and conceal corrupt activity under the guise of national security considerations. He gave the illustration of the security upgrades at the President’s private home in Nkandla, as a case study on how the provisions of NKPA may be used unjustly to justify the burial of information and to frustrate oversight. It must be conceded that, as is the case in any state, there may very well be a reasonable need to classify some information relating to key installations or facilities for security purposes or with the view of preserving the public interest. As the question was posed at the Southern African Catholic Bishops’ Conference in 2013, how does one reasonably balance the need for security with the public’s right to information and the need for transparent government; and what happens when the authorities use their powers in terms of such legislation for ulterior motives? The Bill furthermore seeks to establish a board to oversee, determine and declare the functions surrounding the protection and classification of critical infrastructure installations, as opposed to the Police Minister having sole discretion to declare which areas or structures need government protection.
To determine Critical Infrastructure, a site must fall into one of several categories to be considered in Critical Infrastructure as contained in clause 13, inter alia:
- Areas used for the storage and development of chemical/biological warfare agents and defence capabilities against the effects of weapons of mass destruction;
- Facilities associated with computing, telecommunications and ICT;
- Emergency-related medical, police, fire and rescue systems;
- Energy-related facilities and infrastructure;
- Financial services; and
- Health care services.
Once a site has been determined as falling within a relevant category for consideration as critical infrastructure, the vulnerability of the site must be determined considering available intelligence and the consequences to national security in the event that such a place or area were to be compromised. Upon the proper consideration of these factors, the Board would then declare the place or area as Critical Infrastructure and would determine appropriate security measures that must be in place at the specified place or area. The Board would also be charged with reviewing Critical Infrastructure each financial year to prevent Critical Infrastructure receiving security measures and status which were no longer required.
In terms of parliamentary oversight, Chapter 6 of the Bill allows for the much needed parliamentary oversight to counteract unfettered executive power as contained in the NKPA. The Bill requires that two types of reports be tabled by the Minister of Police to the National Assembly. These reports are: the unclassified report and the classified report. The Minister is required to table to Parliament, on a quarterly basis, an Unclassified Report outlining –
- the total number of existing Critical Infrastructure;
- the name of each Critical Infrastructure;
- details of whether each Critical Infrastructure is state-owned or privately owned and, where applicable, which Ministry is responsible for its management; and
- the name of any new Critical Infrastructure determined in the review period.
As per the Classified Report, the Bill requires that a substantially more detailed report be made available to a closed meeting of this Committee on all activities performed in terms of this Act, inter alia –
- the declaration and determination of each Critical Infrastructure;
- the allocation and expenditure of funds in the fulfillment of functions under this Act;
- the determination of specific security measures for each Critical Infrastructure;
- the implementation of security measures at each Critical Infrastructure;
- the number of security officers deployed to each Critical Infrastructure;
- the status of reviews conducted by the Board of the vulnerability and security measures taken at Critical Infrastructure sites in terms of section 15(1) and (2);
the status of owner submissions made in terms of section 14(1) in the determination of security measures to - be implemented at critical infrastructure sites; and
- any delegation of any of the Board’s powers in terms of section 9(2).
The requirement of these two lists seeks to strike a balance of respecting the public’s right of access to information, ensuring parliamentary oversight and preserving reasonable security measures at critical infrastructure sites.
Clause 16 of the Bill requires the Board to maintain a comprehensive up-to-date register which shall be known as the Register of Critical Infrastructure. The register allows for various specified persons or members of the Board, members of this Committee and persons possessing the relevant security clearance and permission of the Board to have access to various details pertaining to critical infrastructure; including reasonably classified information. The precise shape and contours of the information which would be contained in the specified register would be determined through the regulations.
The Bill seeks to introduce changes to the way regulations are formulated by the Ministry in relation to Critical Infrastructure. In recent years, a tendency to grant unfettered regulatory powers to Ministers to implement regulations which have significant and far-reaching consequences for the implementation of legislation has been noted. Indeed, the NKPA suffers from a similar defect. Such a practice, Mr Mbhele purported weakens Parliament’s oversight function and undermines its constitutional mandate. This practice goes against the rule of law which requires that the law be certain, and that the exercise of powers and discretions under the law not be undertaken in an unrestricted manner. Clause 21 therefore marks a break with this practice by requiring that the formulation of regulations be a consultative process between the Minister and the National Assembly. This process not only encourages a transparent process in the formulation of the specified regulations but also further strengthens Parliament’s position as a legislative and oversight body. As a follow-up to such a consultative process, regulations made in terms of this Bill would be tabled before Parliament 30 days before such regulations were published for the Committee’s consideration.
Clause 22 of the Bill also addresses transitional arrangements aimed at preserving the security of existing National Key Points under the NKPA and ensures that they are given the appropriate protection. Any proclamation, regulation, notice, approval, authority, licence, permit, certificate or document issued, made, given or granted in terms of the National Key Points Act, shall be deemed to have been issued, made, given, granted or taken under the corresponding provision of this proposed Bill. The Minister would be further required to deliver a list of National Key Points to the Board within five days of it being fully appointed so that the Board may within 275 days determine which of those National Key Points would meet the requirements of Critical Infrastructure.
In conclusion, Mr Mbhele asserted that the Ministry of Police had been aware of the need for such legislative reform for approximately two years as the Minister stated in his budget speech to Parliament in May this year. Yet, since the introduction of this Private Member’s Bill in August, no meaningful progress on the repeal of the NKPA had seemingly been made by the executive. Therefore, he appealed to the Members that as conscientious legislators, it is incumbent on this Portfolio Committee, cognisant of its duty to ensure that its legislative framework would be in line with the spirit, values and prescripts of the Constitution and that it acts to remedy the present situation regarding the NKPA. This Bill would be the first step towards fulfilling that duty and he urged both the Committee and the Ministry to utilize this present opportunity provided by the Bill to engage in a substantive consultative process of repealing the National Key Points Act and instilling security legislation which speaks to the nation’s constitutional ideals.
Mr Ramatlakane wanted to know whether the Civilian Secretariat of Police could give the Committee a brief update as to the state of the ongoing review process by the executive.
The Chairperson asked the leader of the delegation from the Secretariat to introduce herself and her delegation and provide an update.
Ms Dawn Bell, Chief Director: Legislation for the Civilian Secretariat of Police, introduced herself, Brigadier Bert van der Walt, South African Police Service (SAPS) Section Head: Legal Support, and Mr Milton Ntwana, a Director in the Civilian Secretariat for Police. Ms Bell asked the Brigadier to update the Committee on the ongoing process of the draft Bill.
Brigadier Bert van der Walt briefed the Committee on the status of the draft Bill. The preliminary certification on the draft Bill was expected from the State Law Advisers and an approval from the Cabinet Committee must also be obtained. If the approval is obtained, the Bill would be published for public comment and the comments would be included in the draft Bill. After this stage, it would be tabled in this Committee.
Mr Mbhele chipped in that the Private Member Bill is a continuation of a process that started since 2012 under the previous Parliament but the Bill lapsed because the parliamentary term ended and so this time was the first opportunity for the Bill to be brought back into the pipeline. This previous and longer process in terms of the parliamentary process should therefore be borne in mind.
Mr Ramatlakane categorically stated his concerns regarding the presentation. It was of public knowledge that there was currently an ongoing review process on a piece of legislation and therefore in his opinion, he did not see how the Committee could run two processes at the same time. Anytime soon, the Committee would be looking at the Act with the aim of repealing the Act and producing a more comprehensive legislation. Secondly, on the issue of National Key Points, he did not know of anywhere in the world where a government’s strategic key points were a matter of public knowledge. Prior to this meeting, he had searched for relevant information from the United States and Britain for evidence. However, he could not lay his hand on anything tangible in that regard. Therefore, could the presenter of this Bill give an example of a country where a government’s key points were a matter of public knowledge? A third concern was on the issue of Nkandla which was given as an illustration to explain national key points. He was of the opinion that this Bill was actually an attempt to unmask what had been previously masked. If this then was the case, the Committee would not be thoroughly dealing with this issue but was using a gimmick as a means to an end. The process of law making must not be based on a narrow mindset. He wanted to know what the financial implication of the Bill was as this was not reflected in the presentation as it was first and foremost the responsibility of the Member introducing the Bill to provide such information to the Committee. He added that having read the Bill in detail, he was of the opinion that the Committee need not run ahead of itself with this new process as there were serious weaknesses in this Bill especially with regards to the pre-emptive stance taken by the Bill. Contrary to the opinion of the introducer of the Bill, it was not mandatory for the Fifth Parliament to necessarily carry along the uncompleted items from the previous parliamentary term, especially if those items did not follow the mandate of the new term. The Fourth term has expired and therefore a new process should be initiated.
Ms Molebatsi agreed with the position taken by Mr Ramatlakane regarding the inappropriateness of initiating the process of a Bill whilst a previous Bill was in the pipeline. She asked what the cost of the Bill would be. She asked if Mr Mbhele could kindly give the Committee a comparison of this new Bill with regards to the late Oriani-Ambrosini court decision on Rule 235A.
Mr Maake was of the opinion that issues such as critical infrastructure were not for civilians such as Mr Mbhele to decide on. The issue of National Key Points and critical infrastructure were best tackled by people with the relevant expertise and those who have been trained to deal with such. The Department was best placed in dealing with such matters. Additionally, since the Committee did not have an example of what best practice is but the Department has, and they confirmed that they had checked for best practice before coming up with their draft Bill, so the most reliable Bill would be the draft Bill already in the pipeline. It was very clear that in terms of the substance of the Bill introduced by Mr Mbhele, it was a desirable Bill but in terms of the other issues he had raised, it was already a false-off. In his own opinion, he suggested that the Committee should not even debate the contents of the Bill as he saw it as a waste of time because it had failed the desirability clause according to the presentation given by the Parliamentary Legal Adviser.
Mr P Mhlongo (EFF) appreciated the initiative Mr Mbhele had taken in pursuit of the presented Bill. However, he reminded the Committee to be mindful of the experiences of the past few months or years in terms of what formed the National Key Points so that the Committee did not undermine the integrity of the country as a whole. The issue of desirability was very clear from the presentation by Ms Swartz – there could not be a Bill on top of another Bill. He suggested that the Committee should put pressure on the Parliament to summon the Minister to present the status of the Bill to all the Members of the Parliament and not only to the Committee of Police. Parliament could not be dictated to by any Department. The Committee as law makers must exercise its legal role and ensure that the interest of the public was protected. He passionately asserted that the Committee has the democratic right as public representatives to be in charge of the process of the Bill. The Committee also has the oversight function over the Executive by law, therefore the Committee must not abrogate its roles because the country is not in a state of dictatorship. It was also important not to treat issues selectively or be informed by only one area thereby jumping to a conclusion because it would mean that that the Committee was not transparent. This would also betray the country’s democracy. This legislative body must not allow an abuse of the country’s democracy under the pretext of National Key Points. The Minister must therefore be summoned to present the already initiated Bill and to depict what really constitutes a National Key Point. He maintained that this process was important without necessarily stating where Critical Infrastructure was located or the installations that secure the country.
Mr M Redelinghuys (DA), said that there were two processes in the Private Members Bill and these should be separated. In the first instance, the engagement was about the desirability to proceed with the Bill, and not the content of the Bill, or the merit or arguments put forth in the Bill. It would therefore be unfair and premature to compare this Bill with a Bill that the Committee was unsure when it would be in existence. It was therefore important for the Committee to confine in this discussion the need for legislation in this regard. He had spent some time reading a piece on his laptop on the need for this particular legislation especially based on the consensus across all political parties that this piece of legislation desperately needs a review and also to prove that there is a glaring gap.
Ms Molebatsi angrily interrupted him with the approval of the Chairperson that the points that Mr Redelinghuys were making were of public knowledge and he should not waste the Committee’s time with such a lengthy process.
Mr Redelinghuys resumed his speech with a note that he had a right to make his view known and did not understand the objection. It was important to explain his points. The DA believes that it is desirable for this process to go through and the Committee. It should not be held up by unnecessary delay by a parallel process that was not substantive. He maintained that the Bill was desirable and he recommended to the house that since there was a need for legislation in this regard, this new process must continue.
The Chairperson asked whether Treasury had been consulted about this piece of legislation. Who were those consulted in drafting the Bill.
Responding, Mr Mbhele thanked the Members for their questions and engagement. He noted that the interactions were supposed to be basically on the desirability as enumerated by Ms Swartz but that he would not mind discussing and motivating on the substantive meaning and details of the Bill if the Committee wanted him to. In terms of the history of the Bill, it dated back to 2012. Bills could be revived from parliament to parliament and there was precedence for this. In terms of a two-track or parallel process that could possibly come, obviously that would not be desirable and that was not his intention. This process could therefore be integrated with whatever process had been formerly initiated when it gets to the Committee. The only problem was that no one was aware of the content or the time frame that the ongoing Bill would be brought to the Committee. Therefore, given the need now, there was no ground that this new process could not be initiated now and in the course of consultation the Ministry’s input could be integrated into it. He reiterated that this new Bill was the only Bill on the table right now.
In terms of access of the public to the items listed in the register, the SA History Archive and the Right To Know organisation took their case to court so as to be given the list of which sites are protected by the National Key Points Act, the court ruled that there were no grounds for not releasing the list of the National Key Points, though not the details, security measures, the expenditure or sensitive information, and that was what the Bill has taken into account. The total number, the name of each critical infrastructure and whether it is privately owned or state owned would be enough. On whether unmasking was the real intention of the Bill, that was incorrect. As much as the Nkandla issue was relevant, it was not the sole motivator for the Bill. The Bill was basically about the removal of any possibility of twisting the legislation for personal matters. There has not yet been a detailed cost analysis as it is not possible to do that pre-emptively. Each year there would be a review to determine what qualifies as critical infrastructure and what security measures needed to be on ground at each site. There was no way such specifics could be determined at this time.
The Chairperson interrupted to clarify whether there was a cost attached as a baseline perhaps for the running of the board.
Mr Mbhele responded in the negative as those details also hinged on the system that the Ministry would set up for the process of the appointment of the board. In addition, that decision was for the discretion of the executive and not for the legislature.
With regards to the comparison of Rule 235 with the Oriani-Ambrosini court judgement, It was clarified that Rule 235 and other provisions derived from it have no legal effect as they have been declared invalid although the constitutional validity has not be evaluated. The Rule could then be used as a guideline but primarily, the time frame from the Ministry should be better used to guide the Committee. He emphasised the statement made by Mr Mhlongo that the Committee should be careful not to abrogate its responsibilities to the Executive. He could not tell with certainty the exact details of those that were consulted on the Bill but he knew that various research organisations, literature and experts were consulted and in the previous term several public submissions were received and were integrated into the Bill. In terms of the concerns raised by the members on the ambiguity of the desirability of the Bill, he was of the opinion that these concerns were not rational grounds for the Bill to be rejected on the basis of undesirability. A request should be made to the Ministry for clear and detailed information as to the time frame regarding the other bill. He emphasised that this new process should be initiated, and the other Bill integrated into it when it gets to the Committee. Primarily, there were no grounds on which this Bill should be rejected in terms of desirability.
The Chairperson asked for clarity from the Ministry as to when the ongoing draft Bill would get to the Committee. He added that at the beginning of the year, the Acting Secretary indicated that the Bill was on its way to the Committee, but up till now, the Bill was still pending. Did the Ministry consult Treasury because the legislature cannot approve or start a process if Treasury had not been consulted.
Mr Redelinghuys added three brief points in the support of the motion of desirability. In the US and Britain for example there were items and sectors that were Critical Infrastructure by default, this new Bill therefore sought to pinpoint these key sectors. The items listed in the Bill were therefore in line with the trend around the world. Secondly, the primary mandate for the legislature is to initiate legislation, therefore this role must not be abrogated. On funding, the Rule does not require that Treasury be consulted on Private Members legislation. The Rule only indicates that the financial implication for the state be provided and this did not require an exact amount. He gave several examples to back up his position.
Mr Maake reiterated emphatically that since the Bill had failed the desirability clause in his own opinion, there was no need to continue the debate. The discussion should just be closed and the desirability element of the Bill should be dealt with. He was not convinced of the desirability of the Bill despite the explanations y Mr Mbhele.
The Chairperson replied that he wanted to give every member an opportunity to engage with the Bill after which the next step would be taken.
Mr Ramatlakane commented that that Mr Mbhele’s responses had further confirmed that the delay of the ongoing Bill was giving the allowance for this pre-emptive strike. The delay was not reason enough. He commented on the statement by Mr Redelinghuys of the “we would not be held ransom.” He cautioned that the “we” should not be a collective statement of the Committee, but the position of the DA on the matter.
Mr Redelinghuys interrupted with the Chairperson’s approval that the “we” meant the entire Parliament as an institution and not this Committee or necessarily the DA.
Mr Ramatlakane said that the process of lawmaking is the process of lobbying and getting everyone onto the same side. For the law to carry, Mr Mbhele would have to convince the Committee and not shove it down the Committee’s throat. The process of lawmaking also allows for oral submissions so that individuals and parties could make their submissions and interventions in the Bill, therefore, he advised that Mr Mbhele should put this new Bill on a hold and then bring it up again and integrate it into the ongoing Bill when it gets to the Committee, having identified the gap. This would be termed a genuine attempt to find a way around this problem. The other route would be to simply take this new Bill off the table.
Ms Molebatsi said that she was very uncomfortable with the fact that Mr Mbhele did not want to tell the Committee, the people he consulted regarding the Bill.
Mr Mhlongo cautioned that members should refrain from casting unnecessary aspersions on the matter because each one of them was being consulted by various people. He stated that he would personally take up this issue with the Minister as to why the process of the ongoing Bill was being concealed from the legislature. The Committee has a right to know. He also wanted to persuade Mr Mbhele to put a hold on this new process until a definite word had been received on the other Bill. He agreed that it would be a futile exercise to continue debating the Bill.
Mr R Mavunda (ANC) appealed to the Chairperson to assist with giving the Committee some direction regarding the engagement. He had listened to the deliberations and has seen that most comments by members would not lead to any tangible result and most of it is not leading anywhere.
The Chairperson reiterated that he wanted to give everyone an opportunity to make their input.
Ms Molebatsi interjected with the approval of the Chairperson and raised a caution to Mr Redelinghuys that he should desist from the tendency of wanting to remind the Committee every time that he is from DA. It is not in the tradition of the Committee to do this. This is wrong because as a Committee, the issue of political affiliation should not be put to the forefront. As a matter of reminder, the DA is an opposition party in this country; the ANC is the ruling party.
Mr Redelinghuys replied that as much as he noted and agree with her point, he was trying to explain that he was not speaking on behalf of the Committee but on behalf of his party. The only way that it could be explicit was to add that he was speaking on behalf of DA. His statement was not to remind members of his political affiliation and not to reduce the matter to partisan issues but to allow for clarity that he spoke on behalf of his party.
The Chairperson called the Civilian Secretariat for Police to make their input.
Civilian Secretariat for Police input
Ms Dawn Bell, Chief Director, Civilian Secretariat for Police, indicated that in terms of the timeframe, it was common knowledge to all present that there was a product on the table. The Secretariat in its recently presented quarterly report to this Committee reported at what stage the Bill currently was. The Secretariat had consulted extensively with various key stakeholders within the departments as well as DEFCOM and the JCPS Cluster Committee. The Secretariat is currently awaiting directions from the Minister because of a task that the JCPS Cluster Committee committed to the Minister. However, the item of the Bill is on the list for this financial year. She added that the extensive consultation done was time consuming and that was because of the need for a thorough job and not exclude any key stakeholder from the process. Treasury had been consulted several times and the concerns raised by Members on funding had been raised with it. Currently, the Secretariat has an estimate of what the Bill would cost and who would be responsible for what part of the implementation.
Ms Swartz said that what the Committee had done this morning was to consider whether they would want this Bill. The next step would be to vote on the motion of desirability. The Chairperson would propose a motion of desirability for the Bill, and then the Committee would have to vote on it. A formal motion would be read out to the Committee and the Committee could vote on it as to whether they agree or not.
The Chairperson appreciated her clarification.
Mr Mbhele, in response to the questions, said that the delays in the ongoing process did not necessarily give grounds to determine the undesirability of the Bill before the Committee. In light of this, there were no legitimate grounds to say that the Bill was undesirable. Contrary to the concerns raised, this Bill was not a process in isolation and they were linked together as processes of the legislature. On the proposed process going forward by Mr Ramatlakane, he appreciated the fact that the Committee had listened to his presentation though he hoped that it was received with an open and attentive hearing without any preconceived perception. He stated categorically that he was not in support of the proposal made by Mr Ramatlakane that we should wait for Cabinet to conclude and introduce their bill, and he could then integrate the new Bill into the ongoing one and the second option being the suspension of this process by taking it off the table via a committee resolution. Mr Mbhele said that he could not accept going into limbo by waiting for the Ministry process indefinitely. He therefore suggested that the Bill be kept on the table whilst engagements are ongoing and whatever time the Bill gets ready, the two processes would then be integrated together.
The Chairperson appreciated everyone’s engagement. He appreciated Mr Mbhele for introducing the Bill and for his hard work. There was indeed a consensus that there is need for this kind of Bill. The clause of desirability just needed to be tackled. The concerns around the financial implications of the Bill and the consultants of the Bill were issues that had come up.
Mr Mbhele wanted to clarify and confirm if the process of ascertaining the stance of the Committee would be a vote by members.
The Chairperson replied in the affirmative, especially if there was no consensus.
Mr Maake suggested that the Committee take a break to vote on the Bill now and this position was seconded by Mr Ramatlakane. This position however was strongly countered by Mr Mbhele. He said that it was better left till the coming week so as to give room for appropriate consultation and rumination on the Bill by the Members.
Mr Ramlatkane felt that the issue had been fully canvassed and there was no need for it to be postponed. He maintained that the reason for Mr Mbhele’s postponement was not sincere.
Mr Mhlongo pleaded that the motion be drafted and forwarded to the Chairperson not later than next Monday 9 November, then afterwards circulated to all the members. This would give room for a thorough motivation; but if the Bill is voted for hastily, the Committee would not do sufficient justice to the matter.
The Chairperson adjourned the meeting for 15 minutes after which a resolution would be taken.
After convening, the Chairperson indicated that having deliberated and consulted with the Secretariat, he had decided to postpone the vote till Wednesday 11 November as that would afford the Members the opportunity to encapsulate the discussions had today.
He thanked the Members for attending the meeting and the meeting was adjourned.
- BASA Comments on the Protection of Critical Infrastructure Bill.
- Right 2 Know Campaign, Submission on the Protection of Critical Infrastructure Bill.
- SASOL Comments on Protection of Critical Infrastructure Bill, Private Member’s Bill introduced by the Democratic Alliance
- Briefing on Protection of Critical Infrastructure Bill.
- Presentation to the PC on Police, Legislative processing of a Private Member’s Bill.
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