Critical Infrastructure Protection Bill: consideration

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Police

04 May 2018
Chairperson: Mr F Beukman (ANC)
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Meeting Summary

The Committee met for clause-by-clause consideration of the Critical Infrastructure Protection Bill with the Portfolio Committee amendments incorporated into it. Each clause was approved except for Clauses 18 and 26 and Chapter 7.

Members wanted to know who is going to inform the Police Portfolio Committee about Critical Infrastructure Council members’ absenteeism in clause 4. Where is the Committee oversight capability to know f such information? It was unclear if the Committee would be provided with minutes showing when Council members were absent from meetings. They said the reality is that no board is going to kick-start its own process to have the member kicked off. The legal drafters responded that the regulations provide for the functioning and meeting procedures of the Critical Infrastructure Council. It would be the function of the Council Chairperson to inform the Committee on such matters.

There was a discussion about when the regulations would be ready. The legal drafters noted that clause 27(6) had been amended by the Committee to state that the promulgation of the regulations and Act must coincide. Previously it stated the regulations could happen ‘‘within three months after’’ the Act comes into operation.

Some Members expressed concern about the ad hoc committees in Clause 12(6) because a person who had been sentenced to imprisonment with the option of a fine could serve on these ad hoc committees. Was this appropriate? The legal drafters clarified that the wording simply means that a person is disqualified from serving if sentenced without the option of a fine. Serious cases would always have no option of a fine.

Members asked if there is a reason for the exclusion of “local government” in clause 19(1)(a). There was no reason and it was decided to include it as it did not affect the definition of government infrastructure.

Members asked if the two references in clause 24 to the "head of a government department is responsible for …the expenses" were alluding to personal liability. The legal drafter explained that the head would be the accounting officer and the consultation with the Police Minister would determine to what extent that department - rather than the head of the department - would be liable for the cost to secure the department's critical infrastructure.

The Committee had only Chapter 7 to conclude by the end of the meeting. The parliamentary legal advisor would have to provide the Committee with a legal opinion on clause 26 and this might not be by next week.

Meeting report

Opening remarks
The Chairperson indicated that the Committee was supposed to have met to deliberate on the Critical Infrastructure Protection Bill but the relevant version of the Bill was not printed correctly by Parliament’s Committee section. There was an instruction that this problem must be addressed. He noted the Portfolio Committee on Sport and Recreation scheduled briefing by the Premier Soccer League (PSL) and SAPS National Commissioner on 8 May 2018 about the Moses Mabhida Stadium violence and the Committee was invited to be part of that meeting. The Committee would be part of that meeting from 9:30 until 11:00 am and then it would convene for clause-by-clause deliberations on the Critical Infrastructure Protection Bill. The Committee is scheduled to adopt Budget reports by next week and this process would commence only when the Committee has adopted the Bill.

The Chairperson expressed dissatisfaction with the Committee staff that should have provided Members with the B-version of the Bill by now. He had already communicated with the House Chairperson telephonically and he would be writing to him so that necessary steps would be taken to ensure that the staff performs in making documents available to Members on time. The Committee had received a letter from a civil society organisation on30 April raising concerns about the current definition of “public interest” in clause 26. The Committee would request the Parliamentary Legal Advisors to get a legal opinion on that. The Committee wanted to ensure that all clauses are constitutionally compliant.

The Chairperson proceeded to read out the B version of the Bill clause-by-clause and Members ensured that the Committee amendments incorporated into the B-version of the Bill were the same as the A-list of Committee amendments. If there were no concerns about the clause, the Committee adopted the clause.

Mr Z Mbhele (DA) requested that the legal drafting team highlight all the key changes made in the text and shown on the overhead projector.

Members did not raise any concerns about the Long Title, Preamble, Arrangement of Act.

The Committee adopted the following clauses without further discussion:

Clause 1: Definitions

Clause 2: Application of Act

Clause 3: Definitions     


Clause 4: Establishment and Composition of Critical Infrastructure Council
Ms D Kohler-Barnard (DA) asked who is going to inform the Police Portfolio Committee about Critical Infrastructure Council members absenteeism in clause 4. Where is the Committee oversight capability to know f such information? It was unclear if the Committee would be provided with minutes showing when Council members were absent from meetings. They said the reality is that no board is going to kick-start its own process to have the member kicked off.

Mr L Ramatlakane (ANC) agreed that this was important but this could rather be included in the regulations than in the Bill as it was detailed information. The Committee should know at what point the regulations will be made available.

Ms Kohler-Barnard said that it was decided long ago that the regulations should come before the Committee but this had not happened. The regulations should stipulate that the attendance register and the minutes should be provided to the Committee for oversight.
                                                                                                                                                                                                                                                                                                     
Brig Bert van der Walt, Section Head: Operational Legal Support, South African Police Service (SAPS); responded that the regulations provide for the functioning and meeting procedures of the Critical Infrastructure Council. It would be the function of the Council Chairperson to inform the Committee on this. Clause 7(6) also addresses the operations of the Council.

Mr P Mhlongo (EFF) indicated that the Council is an autonomous body and this needed to be taken into consideration. In conducting oversight of the Council, one has to avoid the Committee being provided with misleading information about Council operations. The Committee should get accurate information and not be provided with false information that the Board was operating efficiently if this was not the case. There should be clear consequence management for those responsible for providing misleading information.

Mr Ramatlakane again requested that the Committee should be informed about how soon the regulations would be finalised.

Brig van der Walt replied that clause 27(6) was clear that “any regulations necessary for the implementation of the Act must be promulgated to coincide with the coming into operation of the Act”. This previously stated ‘‘within three months after’’ the Act comes into operation but it has since been amended by the Committee "to coincide" with the coming into operation of the Act.

Ms Kohler-Barnard asked if this might mean the Bill would not be passed until the regulations are done. Was there a particular reason why the Committee changed clause 27(6) nto operation of the Act?    

Mr Mhlongo said that the regulations necessary for the implementation of the Act must be promulgated to coincide with the Act coming into operation. He added that it would be incorrect to relegate the oversight responsibility to regulations which is often of lesser capacity than the Act itself.

Mr Ramatlakane suggested the Committee proceed and deal with this when it reaches clause 27.

Mr Sisa Makabeni, State Law Advisor, clarified that clause 32 states that the Act comes into operation on a date determined by the President. It is logical that the regulations coincide with the coming into operation of the Act.

Ms Kohler-Barnard maintained that the regulations should certainly be ready so that they can be passed simultaneously with the Act. The Second Hand Goods Bill languished for three years because the regulations were not completed and this needed to be avoided.

Mr Ramatlakane commented that the State Law Advisor was clear that the regulations would be ready to be passed simultaneously with the Act.

The Chairperson also suggested that the Committee proceed and deal with this in clause 27.

Mr Mbhele said that the drafters should delete the underscore between “that” and “include” in clause 4(3).

The Committee approved the clause.

Clause 5: The disqualification from appointment as the member of the Critical Infrastructure Council
Ms Kohler-Barnard asked for the definition of “office of trust” as this was a legal term.

Mr Makabeni responded that it is any position that requires trust like a curator or accountant.

Mr Mbhele proposed that it would be useful to include the definition of “office of trust”. The indication is that the “office of trust” is referring to an office where you have some kind of fiduciary duty. There is also another ambiguity on whether to state “office of trust” or “position of trust”.

Brig van der Walt said that this matter was going to be attended to.

Mr Mhlongo mentioned that there are some directors that are unlawfully removed from serving on a board and therefore the Bill should make it clear that a person no longer eligible to serve on the Council is one that had been lawfully removed.

Mr Ramatlakane said that it would be preferable to include “position of trust” as it was all encompassing and removed the ambiguity. He replied to Mr Mhlongo that the context would be crucial for the disqualification of members to serve on the Council. The reason for disqualification of members to serve on the Council would be legal.
               
Brig van der Walt replied that the suggestion by Mr Ramatlakane on the inclusion of “position of trust” would be taken into consideration.

The Chairperson requested adoption of the amendment. The Committee adopted amended clause 5.

The Committee adopted the following clauses without further discussion:

Clause 6: Funding and Remunerations
Clause 7: Functions of the Critical Infrastructure Council
Clause 8: The meetings of the Critical Infrastructure Council (new clause)
Clause 9: Functions of the National Commissioner (new clause)

Clause 10: The designation of inspectors
Brig van der Walt pointed out that the words “who are in possession of an appropriate security clearance certificate” was inserted during the deliberations.

The Committee did not have any amendments to make to clause 10 and it approved the clause.

Clause 11: The functions of inspectors
The Committee approved the clause.

Clause 12: Ad Hoc and Standing Committees
Ms Kohler-Barnard said that she was concerned that a person who had been sent to prison with an option of a fine could still serve on these committees. Was this appropriate? It means that there are people who could serve on these committees who had committed terrible crimes. It looked like this was a legal way of letting in certain people who should not be serving on these committees.

Mr Ramatlakane responded that an admission of guilt does not disqualify you from being a Member of Parliament (MP), a Member of a Council, or to serve in any position. The disqualification clause only kicks in when there is no option of a fine.

Brig van der Walt clarified that the wording in clause 12(6) simply means that a person is disqualified from serving in the committee if sentenced without the option of a fine. The most serious cases would always have no option of a fine.

Ms Kohler-Barnard said that there had been cases where a person would be filmed beating up a woman and still become an MP. This could be considered as lesser offence but it is still absolutely disgusting to have that kind of person serving on these committees.

Mr Ramatlakane suggested that the Committee should be consistent with existing law in South Africa. Changes can only be made when there is a repeal of that existing law.
               
Members did not have any amendments and the Committee adopted the clause.

The Committee adopted the following clauses without discussion:

Clause 13: Exemption of certain persons
Clause 14: Delegations of powers
Clause 15: Reporting by Minister

Clause 16: Power of Minister to declare Critical Infrastructure & determine CI Complex 
Brig van der Walt said that there is an important insertion of “in the case of government infrastructure” in paragraph B where it limits powers of National Commissioner. This means that it was only the National Commissioner that can apply for such declaration.

Ms Mabija moved for adoption of clause 16 and seconded by Mr Ramatlakane.

Clause 17: Factors to be taken into account in declaration of Critical Infrastructure
The Committee approved the clause.

Clause 18: Application for declaration as critical infrastructure by person in control
The Chairperson stated that this was a new clause.

Brig van der Walt confirmed that this was indeed a new clause but there were other outstanding issues that still needed to be highlighted. The legal drafting team suggested the removal of “in response to the outcome of the physical security assessment” in 18(3)(b)(iii). There would be numbering amendments as a result.

Mr Mbhele asked about the deviation recourse in 18(5) in the event that the applicant shows good cause why the procedure in 18(3)(a) should not be followed. This would be to ensure that this did not become a closed and secret process without any transparency or recourse for oversight. 

Brig van der Walt responded that Mr Mbhele’s concern could be included in the regulations where it could be ensured that the report is comprehensive.

Mr Mbhele said that he would not be satisfied with this being in regulations as it needed to be in the primary legislation. Although he did not have a concrete technical proposal at this stage – this needed to included in clause 18(8).

Mr Ramatlakane was not sure if this needed to be in clause 18(8) as it could be highlighted in clause 18(5) where it started.

Mr Mbhele stated that Mr Ramatlakane was coming in at a slightly different angle to what he was proposing.

The Chairperson said clause 18 must be flagged to allow the drafters to address Members’ concerns.

Mr Mbhele noted that there is a misplaced quotation mark in clause 18(14) and it needed to be deleted.

Clause 19: Application for declaration of Critical Infrastructure by National Commissioner
Mr Mbhele asked if there is any reason for the exclusion of local government in clause 19(1)(a).

Mr Ramatlakane explained that most of the critical infrastructure would be in the custodianship of the Department of Public Works which is by and large a national and provincial competence.

The Chairperson reminded Members that South African Local Government Association (SALGA) was represented on the board and therefore there is a representation of the local sphere.

Brig van der Walt replied that there was no specific reason for the exclusion of local government. The omission of local government was not deliberate and could be included in that clause.
               
Mr Ramatlakane was not convinced that there would be a need for the inclusion of local government. The Committee could reach a consensus to insert local government but this would not be in application of this Act. This is the easy way out. 

Brig van der Walt said that the insertion of local government would not make any major difference to the definition of government infrastructure.

The Committee adopted clause 19 with the inclusion of “local government”.

Clause 20: Declaration as Critical Infrastructure
Brig van der Walt noted the slight amendment in clause 20(2)(b) where the period of less than 60 days was changed to “not less than 30 days” by the Committee. There was also an amendment in clause 20(4) where the words “subject to subsection (7)” were inserted to link with section 7. The word “category” in clause 20(5)(b) was changed to “categorisation”. There is also a new subsection 20(7)(7) inserted. 

The Committee adopted the clause.

Clause 21: Certificate of declaration as Critical Infrastructure
Brig van der Walt said the only amendment was 21(1)(a) with “category” replaced by “categorisation”.

Mr Mbhele asked if there was any rationale behind the inclusion of 21(2) particularly on the matter of issuing a certificate for each premises where any critical infrastructure is located. It was also the first time that the Committee ever heard of this register in 21(5). What were the provisions for this register? Was this published in the Government Gazette?
 
Brig van der Walt replied that the certificate ensures that each premises would have their own certificate. For example, in the case of Gautrain, this would ensure that each of the stations would have its own certificates. The “register” was in the original Bill and the idea was that the register would be kept by the National Commissioner and published on the website. This would be a quick reference register that would be available to the general public to know which infrastructure is declared as critical infrastructure.

Mr Mbhele asked if any reference had been made in the Bill to this register except in clause 21(5).

Brig van der Walt replied that there is no other reference to “register” except in the regulations which would allow the Minister to prescribe the format of the register.

The Chairperson indicated that there is a reference to the register on page 24 of the regulations.

Mr Ramatlakane said that it was a good thing to have the register in place. There should be a provision in the Act to have this kind of a register.

Mr Mhlongo asked about the sensitive critical infrastructure to be declared in the register. Would there be some critical infrastructure that would be classified and not published in the register?

Brig van der Walt explained that the names of the critical infrastructure must still be published by the Minister and included in the register. There would be a list of critical infrastructure in the register. However, specific coordinates of the critical infrastructure would not be included in some instances although the names would be included.  

The Committee adopted the clause.

The Committee adopted the following clauses without discussion:

Clause 22: Amendment or variation of information or conditions by the Minister
Clause 23: Determination and relocation of declaration

Clause 24: Powers and Duties of person in control of Critical Infrastructure
Mr Mbhele asked if the two subsections that referenced the "head of a government department is responsible for …the expenses" were alluding to personal liability the head of government is responsible for expenses was talking about personal liability. The cost for implementing the security measures would usually come from the budget of a government department.

Brig van der Walt replied that the head of government would be the accounting officer according to the Public Finance Management Act (PFMA). So, the consultation would determine to what extent that department would be liable for the cost. These two subsections noted by Mr Mbhele dealt with cases where critical infrastructure would perform a function on behalf of a government department. In some instances the agreement would be that the entity applying for critical infrastructure must be responsible for the cost of security.

Mr Mbhele asked if this was to address concerns that were highlighted in the submission by Gautrain.

Brig van der Walt agreed that this was indeed the case. Gautrain is a very good example of that but there are also other entities that are performing certain functions on the government’s behalf.

Mr Ramatlakane moved for adoption of clause 24 and seconded by Ms Mabija.

Clause 25: Access to Critical Infrastructure
Brig van der Walt said that there was a substantial amendment here and this would ensure that the searches are conducted in a specific manner.

The Committee adopted the clause.

Clause 26: Offences and Penalties
The Chairperson reiterated that clause 26 would stand over until the Committee received legal opinion from the parliamentary legal advisors.

Clause 27: Regulations
Mr Mbhele asked the reasoning in 27(2) where regulations can make provision for penalties as this seemed to create another layer of imposition of further penalties outside of clause 26.

Brig van der Walt replied that this is to address compliance. There would be an empowering provision to penalise non-compliance with those prescribed regulations.

The Committee adopted the clause.

The Chairperson thanked everyone and indicated that the Committee would resume from Chapter 7 which is still outstanding. The parliamentary legal advisors would have to provide the Committee with a legal opinion on clause 26 and this might not necessarily be by next week. Members would need to go over the Committee Reports on the Department budget as we need to deal with these reports by next week.

The meeting was adjourned.
 

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