Critical Infrastructure Protection Bill: deliberations

Meeting report

Committee Programme

The Chairperson introduced the amended draft Committee Programme for the next quarter.

Ms D Kohler Barnard (DA) requested that there should be a follow-up meeting with the Portfolio Committee on Justice and Constitutional Development on the matters flagged in the recent joint meeting.

Mr Z Mbhele (DA) expressed concern about the short notice given to the Committee Secretary to be able to draft the Committee Programme that thoroughly dealt with all the outstanding issues to be conducted by the Committee. It was also futile to have briefings on the Department’s budget allocation, as that budget had been passed weeks ago.

Ms Kohler Barnard asked about the date for the Budget Vote of the Department.

The Chairperson responded that he was not sure about the exact date, but it would be around May.

Ms L Mabija (ANC) said that it was concerning to see that the oversight visit to Limpopo was reflected in the Committee Programme for the first term, but it had never happened. There was no point in having an item on the Committee Programme if it was not going to materialise.

The Chairperson said that it was still important to have the item on the Committee Programme, but the visit to Limpopo kept on being postponed by the House Chairperson, and this was beyond the control of the Committee.

The draft Committee Programme was agreed upon, but there was no formal adoption.

The Chairperson then indicated that the business of the meeting was simple. The updated “A List” would not be adopted formally today, and this was to allow Members to add anything to the Bill. The “A List” would be adopted formally at the next engagement after the two-week recess period. It was important to give Members and the drafting team enough time to reflect on the inputs of the previous day, including those that would be added today, so they could adopt a consolidated “A List”. 

Members agreed with the proposed way forward.

Briefing by legal drafting team
 
Brigadier Bert van der Walt, Section Head: Legal Support; SAPS, said Members would be given a copy of the amendments from the inputs made yesterday.

There had been no changes effected on clause 4(2) on the composition of the Council, as the general consensus was that the departments that were there should remain unchanged. There had been a discussion to include members of civil society who were not necessarily technocrats. There had been an amendment on clause 4(2) (c) (ii) to accommodate the inclusion of members of civil society to be able to serve in the Council.

There had also been discussion on the need to have a minimum number of people short-listed in clause 4(7) (b), as there was already a maximum number required. This proposal had been taken into consideration, and was addressed by the inclusion of “not less than 20 persons”.

There was also an amendment effected to clause 4(7)(d) on the process to be followed in conducting interviews of the short-listed candidates to serve in the Council. Clause 4(13) was then also amended because of the amendments that had been made above. The idea behind these amendments was to avoid costs incurred in the process of short-listing and conducting interviews for members, and this also allowed the Minister to make appointments fairly quickly.

Brig Van der Walt said an amendment had been made to clause 6 on the funding and remuneration of the members to serve on the Council. This was to be in concurrence with the briefing made by the Secretariat for Police on the funding mechanism for members to serve on the Council.

There had been a concern from Members on clause 7(6) (b) around the submission of the report to the Minister on the particulars pertaining to the number of declarations as critical infrastructure.

There had been a concern from Members that clause 18(3) (a) was constraining on the importance of transparency interest in relation to the critical infrastructure arena. Some Members felt that factors that would condition the eligibility of that exemption from the Government Gazette were also problematic. There had been a proposed amendment to deal with these concerns. The Council would be the body to make a decision to publish notices in the Government Gazette stating the name of the applicant and the address of the premises in respect of which the application was made. This process was initially planned to be undertaken by the National Commissioner, but now it would be the responsibility of the Council.
           
Discussion

Mr Mbhele commented that the amendments that had been made, based on the input that was made the previous day, seemed to address the main concerns. Clause 15 could strengthen Parliamentary oversight if the Minister could table a report in Parliament on the activities of the Critical Infrastructure Council on a quarterly basis instead of annually, substantially corresponding with the format of the report in section 7(g). There should also be a look into the independent auditing of the security measures, in addition to the inspectors.

Brig Van der Walt replied that there was no proposal suggesting the tabling of a quarterly report in Parliament on the activities of the Critical Infrastructure Council.  

Ms Kohler Barnard said that it did not make sense to jail members of the public for raising an important issue just because they were not journalists. This could be a researcher or anybody who spotted something that might endanger the public. There should be an explanation of the process to be followed for the publication notice in the Government Gazette, stating the name of the applicant and the address of the premises in respect of which the application was made. It was also unclear if the staff at these government entities was aware that they could not protest at the critical infrastructure where they were working.

Brig Van der Walt responded that the Council would be the one responsible to make the decision on the publication of particulars, including the address of the premises, and this was totally out of the hands of the National Commissioner.

With regard to the issue of the independent auditing of the security measures, in addition to the inspectors, this was in the Cyber Security Bill where a company could conduct an independent audit of the security measures.

The whole field of journalism was very dynamic, as indicated at the last engagement and there were even “citizen journalists”. The disclosure of security measures could constitute an offence and the person could be charged. The issue of the public interest defence would be very difficult to be incorporated in legislation like this, where the main focus was on security measures. It must be clarified that this Bill did not prevent legal protest or legal strike action. There was a situation currently where people saying “you were not allowed to strike in the National Key Point or within 100 metres of a National Key Point,” but there was nothing like that in the Act or regulations.

Ms Kohler Barnard asked about the process to be undertaken if a citizen entered a critical infrastructure building and then posted it on social media like Facebook, asserting that the security guard was drunk and could not even notice anyone entering the premises. Would a person still be arrested for doing that?

Brig Van der Walt responded that there were indeed good journalists out there, but there were also unscrupulous people who could use the information on security measures to cause potential harm. Clause 26 partly covered the specific example mentioned by Ms Kohler-Barnard, but this still did not prevent the possible prosecution of that particular individual for disclosing security measures.

Mr P Mhlongo (EFF) wanted to make it clear that the sleeping or drunk security guard was also posing threat to the very security and safety of the critical infrastructure. The people who were mandated to be guardians of the country’s critical infrastructure should be able to adhere to the rules and regulations. It must be made clear that what one wanted to see was good governance, and not people using secrecy to hide “dirty behaviours”. There should be a specific clause to accommodate the example made by Ms Kohler Barnard, as there was a need to ensure that officials were held accountable

The issue raised by Mr Mhlongo was a very valid, but the person who noticed a drunken security guard could still lay charges at a police station without having to resort to posting information about security measures in social media. A person could not be prosecuted for laying charges at a police station.

Mr Mhlongo requested that the legal drafters should give the matter some thought, as it was almost impossible to come to a police station to report a case without any concrete and tangible photographic evidence. It was unclear why one could not allow the capturing of important information without opening up the institution to abuse by unscrupulous people. The reality was that there were corrupt police officers within the South African Police Service (SAPS) who were working with criminals. There was also a concern that people were afraid to report crime because of fear of reprisal, or having to bear the brunt of that action.

The Chairperson appreciated the input from Members and the assistance of the legal drafting team. The Committee would now await the final “A list” in order to adopt the amendments formally.

Mr Mhlongo asked if there was a way to get a reworked document, including the amendments that were effected from the previous engagement.

The Chairperson said that the document would be available later today so that Members could consult on all the amendments that had been included. The Committee had made good progress and a lot of “big issues” had been addressed, although there were still some technical issues that needed attention.

The meeting was adjourned.