Critical Infrastructure Protection Bill: deliberations

Meeting report

Chairperson said the Committee was sad to hear about the killing of five South African Police Service (SAPS) officials in the Eastern Cape, and this incident should be condemned in the strongest terms. The Committee agreed that SAPS should brief the it on the steps that would be taken to protect police stations, including the installation of closed-circuit television (CCTV), and any other security measures required.

Deliberations on Critical Infrastructure Protection Bill

Clause 9(4)(a) to (c): Inspection of privately owned infrastructure

The Chairperson said that there was a concern that the inspection of privately-owned infrastructure declared as critical infrastructure, should be conducted after the owner gives consent. Inspectors may also issue compliance notices without a magistrate.

Brig Bert van der Walt, Section Head: Legal Support, SAPS, responded that the Department agreed in principle, but this could create a situation where inspectors were not allowed to access for routine inspections. It was submitted that routine inspections were not invasive and did not amount to a search. It was unlikely for the Minister to declare infrastructure critical without the consent of the owner under the current regime.

Ms D Kohler Barnard (DA) asked about the vetting of the inspectors to be involved in the inspection, as the Committee had been very strong on the need for vetting everyone. It was also critically important to ensure that there were sufficient inspectors, as it was pointless to appoint one inspector per province.

Brig Van der Walt replied that there was no provision in the Act for the vetting of inspectors. The Committee could guide the Committee in regard to the vetting of these inspectors and how this could be included in the Act. Indeed, the Department believed that there should be vetting undertaken.

Ms Kohler Barnard reiterated that there should be a vetting and lifestyle audit to ensure that there was transparency in respect of these inspectors. They were the key to knowledge of the places to be protected as critical infrastructure.

Brig Van der Walt explained that inspectors normally dealt with security measures and not the internal working of the critical infrastructure. For example, an inspector at Koeberg would not come even close to the operation of the power station, but would deal specifically with security measures.

The Chairperson said the drafting team should look into the issue of vetting inspectors, as this was important. The officials at lower levels were usually a target for corruption because of potential financial gains, and therefore this should be prevented.

Clause 11(9)

The Chairperson said there was a concern that clause 11(9) incorrectly referred to subsection (7) and not (8).

Brig Van der Walt acknowledged that there was an indeed an error in the ordering of sections, and this would be rectified.

Clause 12(3): Issuing of security clearance
Brig Van der Walt said that SAPS may perform its own internal vetting process. The Act limited SAPS from performing external vetting.

Members did not raise any concern.

Clause 12(4): Ad hoc committee

Brig Van der Walt said that the ad hoc committee would not be necessarily involved in work that required security clearance. It was also envisaged that private sector experts needed to be employed and remunerated, and would therefore not be an issue. The ad hoc committees would normally be formed from the joint planning committee and would include members of that committee, and they would obviously sign a confidential agreement. With regard to single member committees, the proposal would be to amend sub-clause 4 to read: “The National Commissioner must designate a police official who was a member of a committee or a working group as the Chairperson thereof”. This removed any doubt that there would be a one man committee operating, as this could only be dangerous.

The Chairperson commented that there was at least a second line of defence within government, and this should provide some comfort to Members.

Brig Van der Walt added that there was provision that the Minister may make regulations about the operation and functioning of these committees in the regulations, clause 26.

Clause 12(9) 

Brig Van der Walt proposed the removal of the verification process to earlier in the process so as to prevent the situation where the application starts with the Minister, and then has to go back to someone else. It was difficult for the National Commissioner to make a determination whether this would impact on the financial stability. The Department was proposing that where an application was made, the National Commissioner must ensure that if that critical infrastructure was linked to a government department then the head of that government department or organ of state, like the South African Reserve Bank (SARB), must be notified and have a report that accompanies the application.

The Chairperson commented that this was a very good proposal.

Clause 14

Ms Kohler Barnard asked if the regulations that were proposed by the National Commissioner would be coming to the Committee, as this was the kind of agreement that should be made. The Committee was yet to deliberate on the input that had been made by Eskom, as there might be inputs there that were quite valuable.

The Chairperson said that the Committee still needed to deliberate further on the issue of regulations. Members would be given copies of the input that had been made by Eskom.

Brig Van der Walt responded that there must be regulations in place for the Bill to be implemented. Clause 7(d) specified that the functions of the Council were to evaluate, monitor and review the implementation of policies and legislation related to the protection of critical infrastructure, so the first sets of regulations would not be discussed by the Council, as they would not be in existence at the time. In essence, the regulations would need to be reviewed by the Council with the purpose of giving advice to the Minister.

Ms Kohler Barnard wanted to know if regulations were somehow incorporated under policies. Members did not pass regulations as part of the legislative process and therefore it was unclear if regulations were part of policies.

Brig Van der Walt explained that regulations were seen as part of delegated legislation, and this depended on the original legislation passed by Parliament to give the Executive powers to draft regulations.

Mr P Mhlongo (EFF) expressed concern about the issue of compliance in the drafting of regulations, as some of the regulations were in total breach of human rights in many different ways. It would be important to know if it would not be responsibility of the Committee to be provided with these regulations so as to determine if these regulations were compatible with the Constitution and the Act itself in order to avoid a situation where people would abandon the Act and rely on the regulations.

Brig Van der Walt clarified that clause 27 used a very specific framework of regulations that the Minister may promulgate, and the Minister can not go beyond that. It would be the Committee that provided the guidance on whether the regulations should come before the Committee, and the Department did not have a specific agenda in this regard.

The Chairperson commented that the Committee must be careful about the separation of powers when taking a position in this regard.

Ms Kohler Barnard said that it was not a matter of approving or disapproving the regulations, but to just see the specific regulations in order to have a clue of what they contained. This would assist when raising concerns about some of them.

The Chairperson said that perhaps the Committee should stipulate that the regulations should come before them to be scrutinsed.

Mr J Maake (ANC) asked if chapter 6 of the Bill, under “regulations,” was not covering the concerns of Members, as it was speaking about the role of Parliament in the promulgation of these regulations.

Brig Van der Walt indicated that “notification” and “scrutiny” had the same legal meaning, but the drafting team could include “scrutiny”.  

Members agreed with the suggestion. 

Chapter 3: Declaration as Critical Infrastructure and Determination of Complex

Clause 16

The Chairperson said there was a concern that clause 16 was broad and vague and might impact on services rendered by clinics, universities and so forth.

Brig Van der Walt said that clause 16(2)(b) defined the limitation to the declaration of critical infrastructure. The Minister would need to take into consideration a number of factors before the declaration of the critical infrastructure.

Ms Kohler Barnard suggested that there should an input from the local Members of the Executive Committee (MEC) and financial departments with regard to the declaration of their infrastructure as critical infrastructure.

Brig Van der Walt responded that this was one of the reasons why the Department wanted to build a consultation process into the application process. There should be a consultation process involving those who were likely to be affected by the declaration of the critical infrastructure, and this was a concern that had been raised by the Guateng Management Agency.

Ms Kohler Barnard wanted to know if it was not then wise to classify this Bill under section 76, rather than having to wait for stakeholders to make an application.

The Chairperson said that the Committee was still waiting for the legal opinion in regard to the classification of the Bill.

Brig Van der Walt said that the Minister could not lodge an application on behalf of someone else, and the National Commissioner may lodge an application after consultation with the necessary persons. However, this would be limited only to national government, and therefore the National Commissioner would not be able to lodge an application on behalf of anyone in the province or any private entity. Clause 9 was a bit wide, and might have given an impression that the National Commissioner may lodge an application on behalf of anyone.

Ms Kohler Barnard asked if there was anything that the National Commissioner could do if he was instructed by the Minister to lodge an application.

Brig Van der Walt said that the Bill did not allow the National Commissioner to lodge an application on the instructions of someone else.

Clause 16(1)

Brig Van der Walt said that clause 16(1) was following the logical order and therefore it should be retained as is. Although the process could be changed, the Department preferred the logical order to be retained.

Mr Z Mbhele (DA) said that the Council was the body with expertise to decide on the declaration of the critical infrastructure, instead of the Minister.

Brig Van der Walt said that the Minister was responsible for decision-making, as this was critically important.

Mr Mhlongo agreed with a sentiment that had been expressed by Mr Mbhele on allowing the Council to be the one taking the decision on the declaration of critical infrastructure, as the Department could have a “hotheaded” Minister who would take the decisions on declaring critical infrastructure.

Mr Maake proposed that the Committee should get a copy of the application form for infrastructure to be declared as critical infrastructure, saying there must surely be a template for the application form for the declaration of critical infrastructure.

Mr Mhlongo added that the role of the Council was to advise the Minister on the declaration of the critical infrastructure. The role of the Council was to conduct oversight.  Mr Maake had been speaking in “euphoria,” where things were always in order, but there was no credible evidence that there would even be a form for lodging an application. The Committee should not rely on what was not there, but on what was before it.

Brig Van der Walt reiterated that an application for the declaration of critical infrastructure must be lodged with the National Commissioner in an application form, as contemplated in section 16(1). There would be an application form with all the specific related questions. The regulations also provided for the types of documents that must be produced with the application for the declaration of critical infrastructure.

Mr Sisa Nkabane, State Law Advisor, said that the responsibility of the Council was to make the recommendations to the Minister on the declaration of the critical infrastructure, and therefore the decision to be taken by the Minister would be based on the recommendations by the Council. The Minister could not make a decision without taking into consideration the recommendations of the Council. The failure of the Minister to take into consideration the recommendations by the Council would result in a situation where the declaration was invalid. Clause 16(2)(d) clearly stated that the Minister must consider the recommendations of the Council.

The Chairperson said that this had been explained very well.

Clause 16(2)

Brig Van der Walt said that the Minister was the one ultimately to take the final decision on the declaration of critical infrastructure, as he/she was the political head and the functionary. It would be impossible to delegate this responsibility to the Council, which was only meant to provide assistance to the Minister to ensure that he/she applied his/her mind correctly.

Clause 16(2)(a)(iv): Definition of national security
Brig Van der Walt said that the clause would make a specific reference to the definition of “national security,” as provided in the Constitution.

Members agreed with the suggestion.

Clause 16(2)

Brig Van der Walt explained that there was no expectation of a proliferation of critical infrastructure.

Ms Kohler Barnard said that there had been huge concerns in the past about massive protection and security upgrades to ministerial private dwellings. It would be important to ascertain whether the concerns that had been raised in the past about the upgrade of private dwellings would be taken into consideration in the Act.

Brig Van der Walt clarified that there was difference in security measures that were applicable to private dwellings in terms of the ministerial handbook. The Critical Infrastructure Bill dealt specifically with the functioning and stability of the economy of South Africa. The private dwellings would have to prove exceptional factors in order to be declared as critical infrastructure, especially with the ministers’ homes. Certain installations of Eskom had been declared as critical infrastructure, but there were questions about how to deal with the power lines of Eskom, for example. The Bill was able to distinguish between low, medium and high risk infrastructure, so as to deal with these categories of risk.

Members appreciated the explanation. 

Clause 16(2)

Clause 17(j) alluded to the proposed replacement of the word “promote,” in line 40 on page 14, to “affect”.

Members agreed with the proposal.

Clause 17

Clause 18(3)(a) provided that reports must accompany the application for the declaration of critical infrastructure.

Clause 17(d)

The Chairperson said there was a concern as to why the resources available to, or at the disposal of the person in control of the infrastructure, to safeguard repair or replace the infrastructure, had to be taken into consideration when declaring critical infrastructure.

Brig Van der Walt said that the declaration of critical infrastructure would always follow an application. If an applicant had the required resources, the security measures could be put in place.

Ms Kohler Barnard commented that it was bizarre to expect private individuals to pay for the mandate and responsibility of the state to provide security measures for critical infrastructure. It did not make sense for government to force entities to pay for security measures without any request for the installation of those security measures. 

Mr Mhlongo agreed with the sentiments of Ms Kohler Barnard, that private individuals could not be expected to pay for the mandate of the state to provide security measures to protect national interests. Any place that had been declared as critical infrastructure would only be because it had value to the State. There must be a clear way that the State should pay for security measures that had been implemented.

Ms Kohler Barnard wanted to know if the upgrade of private dwellings including ministers’ and deputy ministers’ dwellings came under the ministerial handbook, and had nothing to do with the national key points. It would be important to ascertain if the security upgrade of private dwellings was merely a Parliamentary problem, rather than a SAPS problem.

Mr Maake maintained that private individuals should pay for security measures, as this was not only undertaken to protect critical infrastructure, but everyone in the country.

Mr Mhlongo said that the state had the mandate to protect national interests, and this responsibility could not be delegated to private individuals.

Brig Van der Walt commented that international trends showed that private individuals paid for their own private security measures. The private entities that rendered services to the state made money out of this and put in place excessive security measures, and they were the ones who were responsible to pay for them. It was very rare to find a situation where the state was paying for the security upgrades of private individuals. The state would not be able to foot the bill for all the private companies and civil society, as there were just too many, and private individuals gladly paid for the costs that were incurred for the installation of security measures. The main concern was the fact that the costs could be imposed on someone who did not have a say in the process.

Mr Maake said that the privately owned companies should just pay for their own security measures, as this was just a logical thing to do. The state could not afford to pay for so many privately owned companies’ security.

Clause 18(1) 

Brig Van der Walt proposed the insertion of clause 18(2) so that there was consultation undertaken with government departments and organs of state.

Mr Mbhele suggested that on that issue of the definition of the person in control of critical infrastructure, it should be stated explicitly that alongside ‘critical infrastructure,’ there was reference to ‘critical infrastructure complex’ in the definitions, as there was a possibility of dealing with interlinked infrastructure in public private partnerships (PPPs).

Brig Van der Walt said that this was very valuable input. The drafting team was discussing the issue flagged by Mr Mbhele. This would be a technical amendment and the proposal would be made during the clause-by-clause deliberations.
 
The Chairperson said that the Committee noted the suggestion that had been made by Mr Mbhele.

Clause 19(3)(b)

Brig Van der Walt said that the whole clause would be revisited, and a proposal would be made in that regard. It was important to highlight that the Bill was still to be aligned with the Promotion of Administration Justice Act (PAJA).

Mr Mbhele said there had been an input from Right2Know, that there was an omission from clause 19 requiring public consultation for the application made by the National Commissioner, and this was something that needed to be taken into consideration.

Brig Van der Walt agreed that this was a very good proposal, and it would be taken into consideration.

Clause 20

Brig Van der Walt said the amendment here was for clause 18 to be able to address the concern of the Banking Association of South Africa (BASA). Banks did not, on the face of it, comply with the requirements in terms of clause 16(2)(a). However, the Department could propose an amendment of clause 18 to include: “All the reports by the necessary people who have an interest in this application”.

Members agreed with the amendment.

Clause 20(2)(b)

Brig Van der Walt commented that there was a timeframe of 30 days to make a submission on a property under consideration for declaration as critical infrastructure. However, there was no fuss about an extension of the 30 days to 60 days to make a submission on a property to be considered as critical infrastructure.

Mr Mhlongo expressed concern about the possibility of having many privately owned companies making submissions on a property under consideration for declaration as critical infrastructure.

The Chairperson said that the issue would need to be discussed further during the clause-by-clause deliberations.

Independent Police Investigative Directorate (IPID) Act: Adoption of resolution

The Chairperson said that the Committee would now need to adopt a resolution to send a report on the Independent Police Investigative Directorate (IPID) Act to the Speaker.

The Chairperson read through the resolution of the Committee.  
           
Ms Kohler Barnard expressed concern that the constitutional judgment had been in 2016, but now there was suddenly a rush to pass the Bill.

The Chairperson said that it was not the fault of the Committee that the passing of the Bill had been delayed.

Ms Kohler Barnard wanted to know the person who had been sitting on the Bill for two years, as the Committee was suddenly in the situation of having to request special permission.

The Chairperson said that the Secretariat of Police explained that a lot of consultation had been undertaken and therefore it had been difficult to finalise all the outstanding matters.

Mr Maake asked about the process that was going to be followed by the Committee from now on.

The Chairperson responded that the draft Bill that had been prepared by the Parliamentary Legal Advisor would be sent with the resolution to the Speaker for the purpose of publication and comments. The timeline of deadlines to be met would be sent to Members for the updates.

Adv Bell clarified that when the drafting of the Bill started, IPID decided to use the opportunity to also incorporate changes in the Bill that needed to be amended.

Mr Mbhele enquired if the Bill that would be sent to the Speaker for public comments was the one that had been prepared by the Secretariat.

Adv Dawn Bell indicated that the Bill that was being sent to the Speaker for public comments dealt strictly with the constitutional judgment. There was a letter from the State Law Advisor in which it was stated that it was pointless to overhaul the whole Bill and rather concentrate on the constitutional judgment so as to meet the timeframe of the court.  

The Committee adopted the resolution to send the IPID Bill to the Speaker for comment.

Chapter 4: Powers and Duties of Persons in Control of Critical Infrastructure
 
Clause 21(4)

The Chairperson said that there was a concern about the wording of clause 21(4), as it was ambiguous and needed to be clarified.

Brig Van der Walt responded that clause 21(4) presented a situation where the persons in control of critical infrastructure regarded themselves above the labour laws or health and occupational and health and safety laws. This clause ensured that there was compliance with those laws. The drafting team was proposing the following amendment: “Declaration of critical infrastructure does not exempt a person in control of critical infrastructure from having to comply with provisions of any other laws applicable to the critical infrastructure in question”.

Members agreed with the proposed amendment.

Clause 21(5)
Brig Van der Walt said that clause 21(5) provided that the National Commissioner must have a register which had to be accessible to public. There would be a prescribed format and accessibility would probably be achieved through the SAPS website. The Minister was also mandated to publish a notice in the government gazette. There were two ways to establish whether something was critical infrastructure -- by referring to the government gazette, or referring to the register kept by the National Commissioner.

The Chairperson flagged that it must be remembered that many civil society organisations had raised a concern about the secrecy in the handling of this whole situation.

Mr Maake asked about the meaning of the comment that critical infrastructure sites must be known. It was unclear whether this was referring to the location of these sites. There were sites that one did not even need to know where they were, because of the secrecy involved.

Brig Van der Walt replied that the critical infrastructure sites would reflect only the name and the provincial location of the critical infrastructure. The concern with the Right2Know was about the name of the institution, but it had been decided to publish a geographical location for that.

The Chairperson appreciated the clarification that had been made. 

Clause 24(1)

Brig Van der Walt explained that the clause was referring to the earlier discussion on the fact that private entities needed to pay for their own security measures, and the Department was still firm on that position. Private entities would make a profit in dealing with the state, and therefore they needed to pay for the security measures.

Clause 24(3)

Brig Van der Walt said that the African Policing Civilian Oversight Forum (APCOF) had made a very good proposal on the need to limit the powers of private security companies to access and have perimeter control of critical infrastructure. The Department would propose an insertion of a new sub-clause to read as follows: “A person to whom functions were assigned in terms of this chapter must exercise such powers and perform such duties subject to the Constitution with a due regard of the fundamental rights of every person”. This was to convey the message that strip searches and other unconstitutional searches were excluded.

Members agreed with the proposal made.

Clause 24(4)

Brig Van der Walt said that the clause was applicable only to private entities, as it would be illogical for a government department to apply for assistance from itself. The phrase “person in control” included private owners.

Mr Mbhele expressed concern about the unintended meaning in clause 24(1) (a), which sounded like the responsibility fell individually on the Head of Department (HOD), whereas the intention was to say the Department.  Was there any reason for specifying the HOD in that instance? Was there a way of
minimising the risk for ambiguity in the meaning?

Brig Van der Walt responded that according to the Public Finance Management Act (PFMA), the HOD was also accountable for finances, and the HOD was also defined in the definitions.

Members agreed with the explanation.

Clause 24(6)

The Department was hesitant to comment on this specific clause, as this would be dependent on the factors surrounding the specific application.

Clause 24(7)

The intention was that the person must be a full-time employee to be appointed as a security manager from a private security provider. The Department was proposing that the words “person in the employ of the critical infrastructure” be inserted before security.

Members agreed with the proposal

Clause 25(2)(b)

Brig Van der Walt indicated that the Department had established that the definition of “security personnel” would be sufficient to cover the concern in this specific clause.

Members agreed with the suggestion.

Clause 25(6)

Brig Van Der Walt suggested that in regard to searches, clause 25(6) would be rephrased to read as follows: “Any search conducted under subsections (2)(b)(iv) and (5) must be carried out by the person of the same gender, with strict regard  to decency and order in accordance with section 29 of the Criminal Procedure Act, 1977, which applies with the changes required by context”.

Mr Maake asked if strip searches would be conducted in the critical infrastructure buildings. SAPS perhaps would need to buy specific technology which would make it possible to conduct strip searching.

Brig Van der Walt responded that there was a possibility of conducting strip searches where necessary, or where there was a threat that had been identified.

Ms M Molebatsi (ANC) wanted to know if the people who were conducting strip searches would know what was right and what was wrong.

Brig Van der Walt explained that section 29 of the Criminal Procedure Act expanded on the importance of woman to be searched by a woman, and did not specifically make reference to strip searches. There would information provided on the possibility of being searched when entering a particular critical infrastructure building. The Bill currently did not stipulate the kind of search that would be undertaken, and this was something that the Committee could consider for discussion.

Ms L Mabija (ANC) asked if females would be allowed to search males.

Brig Van der Walt responded that a search must be conducted by a person of the same gender. This might get “sticky,” with all various gender classifications these days. 

Ms Kohler Barnard expressed concern about the exclusion of searching of transgender individuals, as the Bill was making specific reference to only two genders. The clause should be drafted in a way to reflect views and attitudes of the 21st century.  What about people who looked manly but were in the process of being converted to a female?

Brig Van der Walt said that the drafting team would have to rework the clause in a way to accommodate the concerns of the Committee.

Chapter 5: Offences and Penalties
Clause 26

Mr Mbhele indicated that the Committee would need to take into consideration the input made by amaBhungane, particularly on the intention for an act of criminality, as it was critically important to make this distinction. There should be a clear filter that intention was part of determining whether or not it was criminal offence in the first place, instead of having a blanket criminal offence. One needed to couple the issue of “unlawful” and “intention” in the determination of a criminal offence, and then start talking about mitigating and aggravating circumstances.

The Chairperson suggested that this should be discussed during the next engagement, when the Committee would be deliberating on the Bill on a clause-by-clause basis.

The meeting was adjourned.