Critical Infrastructure Protection Bill: Committee report on amendments

Meeting report

Chairperson’s opening remarks
The Chairperson welcomed everyone and outlined the Committee programme for the following week. He indicated that the Committee would firstly get a briefing by the legal drafting team on the amendments that had been made from the last meeting on the Bill.

The Committee would also get a briefing on the incident that happened at Moses Mabhida Stadium where supporters invaded the pitch and attacked security guards. The Portfolio Committee on Sport is scheduled to have a briefing from the Premier Soccer League (PSL) on 8 May 2018 and the Committee had been invited to be part of the meeting for the first 2 hours. The Committee would need to invite the National Commissioner and the KwaZulu-Natal (KZN) Provincial Commissioner to brief the Committee on the matter of violence in sport. The Committee would be part of that meeting from 9 to 11 and then come back to continue with the deliberation on the Critical Infrastructure Protection Bill.

The Committee researchers have been asked to prepare a document on the duties and responsibilities of SAPS in relation to the Sports and Recreation Act so that the Committee is ready for the engagement in two weeks time.

The Committee is under pressure with legislation and must finish its legislative work as soon as possible. If it finishes early it will fill up the programme with oversight work that it needs to give attention to.

Briefing by legal drafting team on amendments to Critical Infrastructure Protection Bill
Brigadier Bert van der Walt, Section Head: Legal Support, South African Police Service (SAPS), read through all the proposed amendments: both technical and substantive (see document)

Clause 1

He indicated that the definition of “government infrastructure” has been inserted and this definition would be important in the interpretation of the section related to the powers of the National Commissioner to apply for the declaration of critical infrastructure.

There is also an inclusion of the new definition of “national security”. There is a new inserted definition of Private Security Industry Regulatory Authority (PSIRA). This new definition would clarify issues that were flagged by Members about security guards at the critical infrastructure.

Clause 2

Brigadier Bert van der Walt explained the amendments as follows:
On page 5, on line 60, after “pertaining to” to insert “security measures applicable to”.
 This insertion is to ensure that the information is limited to security measures
On page 6, from line 1, to omit “legislation” and to substitute “Act of Parliament”.
This is a technical amendment as advised by the State Law Advisers

Clause 4
This entire provision deals with the Critical Infrastructure Council and the amendments is reflected in the new clause, which had 18 subclauses.

Clauses 5-30
Brigadier Bert van der Walt read out all the amendments proposed from clauses 5-30.


Discussion

The Chairperson noted that represented all the A-list issues that were tabled and asked Adv Bell if she had anything to add.

Adv Dawn Bell, Chief Director: Legislation, CSP, replied that she was covered by her colleague and did not have anything further to add.

The Chairperson asked Members to give their input.

Mr Z Mbhele (DA) firstly thanked the Brigadier for walking the Committee through the amendments and thanked the team for the work they put into this. He sought clarity on two issues. In terms of the Ministerial reporting, he welcomed the increase frequency of ministerial reporting in clause 15. However; he had a question around the format of that reporting. He noted there is provision for the list of names of critical infrastructure to be published 60 days after the Act comes into effect but he was not sure if the format of the subsequent ministerial reporting as outline in clause 17 also contains that element. He sought clarity on this. Secondly, on clause 26, he wanted to check the discussion that happened on the publication of information where the security measures are legitimate security measures but there is information relating to procurement, corruption or maladministration around those security measures. It’s one thing for example to reveal something has been irrationally classified as a security measure but if the measure itself is legitimate but the manner of procurement is not, if that publication would be covered by the inclusion of the Prevention and Combating of Corrupt Activities Act, does that give protection and legal cover for that kind of dissemination and publication?

Mr L Ramatlakane (ANC) wanted to know if there was any specific reason why clause 6 was phrased in the current manner.

The Chairperson explained that there was a debate previously on the capability of the Civilian Secretariat for Police (CSP) to support institutions they are responsible for like the Judge and DNA Board. The Committee received briefings from the Secretariat as well as the Chief Financial Officer (CFO) of CSP in order to get assurance that the expenses in relation to the Board won’t become an issue. The Committee heard the Member in terms of the title and specific delegation.

Brigadier van der Walt addressed Mr Mbhele about the format of the report. The new clause 7(6)(b) now reads “particulars pertaining to the number of declarations as critical infrastructure, including the names of the critical infrastructure”. That would be in the report that has to be submitted by the Minister. On the second issue, clause 26 speaks about unlawful. If I lay charge at a police station about a corrupt activity, that is not an unlawful act because that disclosure can never be unlawful. One of the things that clause 26 deals with is the fact that it must be unlawful and the NPA has to test the unlawfulness. There is also a shield if it is done in terms of one of the Acts of Parliament mentioned there. There is legal protection if the person is bona fides in disclosing that information when there is a corrupt activity.

Adv Bell addressed Mr Ramatlakane’s query. She reiterated the Chairperson’s remarks mentioned there was indeed a presentation by the Secretariat and CFO of CSP with regard to the expenses that would be incurred in terms of the Bill. The Secretariat would be assigned a role of being the chairperson of the Critical Infrastructure Council. The only expense that would be incurred here is for those members of the Council who are private members. Those would be in terms the PFMA.

Mr Ramatlakane sought clarity on the remuneration.

Adv Bell said that as long as the Chairperson is the Secretary, that is the situation that will unfold. If the Act changes, then one will have to deal with it then. As long as it is like that, then funding will come from the budget of CSP.
 
Brigadier van der Walt explained that the new clause 4(17) in the A-list provides that the remunerations and allowances must be with the concurrence of the Minister of Finance.

Mr Mbhele said this point relates to a parliamentary question he submitted late last year. Where there are similar provisions for example, it relates to the relevant section the SAPS Act that governs the DPCI where the agreement on the remuneration of the DPCI national head and provincial heads requires the concurrence of the Minister of Finance. It’s because there is no explicit provision that the concurrence must be recorded in writing it kind of leaves things a little bit loose. He recalled that the response he received from the Police Minister is because the matter had been tabled at Cabinet and the Finance Minister was present and Cabinet agreed then it was implicit that there was concurrence by the finance Minister. One is never sure if there was a clear bilateral discussion looking at the technical implications of such concurrence. He was not sure how much weigh to give to this convention. 

Brigadier van der Walt responded that there is always that risk where something would be discussed at Cabinet level where the Minister would not be made aware of those discussions by the administrative people. If one inserts the word written before concurrence, it would sort the problem.

Adv Bell said that in practical terms before the DPCI judge is appointed, letters are written from her office to the various Ministers to inform them about the appointment. The Minister of Finance would have to reply to the office with regards to the remuneration prior to the appointment. The same would apply in this instance also.

Mr J Maake (ANC) asked if the Minister of Finance needed to be made aware of this clause before it becomes an Act.

Brigadier van der Walt clarified that the Minister of Finance must be informed of the remunerations of these members before they are appointed and he must concur with it. With regards to the bill itself, the bill gives effect to a large extent what is required in terms of the PFMA. He did not think that the Minister of Finance is involved and is a party to the Bill.

The Chairperson requested the Secretary to prepare the report on the A-list amendments and it will be put to the Committee.

Brigadier van der Walt pointed out there was a typing/editing error on page 19 clause 26 in paragraph a. He indicated that certain words need to be removed.

Adoption of the A-list of Critical Infrastructure Bill
The Chairperson put the report on the A-list for consideration.
 
Mr Ramatlakane moved for adoption of the A-list of the Critical Infrastructure Protection Bill and was seconded by Mr Maake.

Mr Mbhele said that the DA did not have any objection on the report but reserved the right on the final vote of the Bill in the House as it must go to caucus first.
           
The Committee adopted the A-list.

The Chairperson thanked everyone who participated. The Committee was able to include a large number of stakeholders including civil society and a lot of changes were made. This is something that must be commended.

Mr Maake asked about the process to be followed after the adoption of the A-list.

Mr Nathi Mjenxane, Parliamentary Legal Advisor, responded that the A-list becomes the list of amendments that the Committee wanted to see. The next step now would be on the B-list of the Bill where the Committee would be incorporating all the amendments that had been made. Members would go clause-by-clause through the B-list to see if all the amendments appeared correctly as suggested. The C-list would be included if there are other additional amendments that the Committee wanted to make to the Bill during the clause-by-clause deliberation.

 The meeting was adjourned.