IPID Amendment Bill; Critical Infrastructure Protection Bill; Powers, Privileges & Immunities of Parliament Amendment Bill: briefing
NCOP Security and Justice
31 October 2018
Chairperson: Mr S Mthimunye (Mpumalanga, ANC)
The Parliamentary Legal Advisor briefed the Committee on the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Amendment Bill [B18-2018]. This Committee Bill complies with the Constitutional Court order to amend Section 11 do it does not apply to Members who create a disturbance in the House or in Committees: “A person who creates or takes part in any disturbance in the precincts while Parliament or a House or Committee is meeting, may be arrested and removed from the precincts, on the order of the Speaker or the Chairperson or a person designated by the Speaker or Chairperson, by a staff member or a member of the security services.”
Memebers asked if Parliament security should not be entirely handled by Parliamentary Security Services rather than SAPS as well. They asked for clarity on the word “disturbance”; if the Parliament Rules cohered with the Constitutional Court order; how many provincial legislatures had commented on the Bill; and if a Member acts in absence of the presiding officer, is the power to call in the Parliamentary Security Services transferred to that Member.
The Committee was also briefed on the Independent Police Investigative Directorate Amendment Bill [B25-2018]. This Committee Bill amends provisions which the Constitutional Court found to be invalid as they allow the Minister of Police to suspend, take disciplinary steps or remove the IPID Executive Director from office.
IPID was present and made an appeal to include further important amendments that it and the Civilian Secretariat had drafted. It was crucially important that South African Police Service (SAPS) members are prevented from launching counter investigations against IPID when they are investigated by IPID.
The Committee agreed to put the discussion on the Bill on hold and allow the Constitutional Court to pronounce itself on the requested deadline extension for finalisation of the Amendment Bill. The comment period on the Bill was to be extended and IPID and the Civilian Secretariat were asked to make submissions.
Despite the Civilian Secretariat noting the urgency of the Critical Infrastructure Protection Bill [B22B – 2017], the Committee did not deliberate on it at the meeting. It requested information on the public comments made and the extent to which these were incorporated by the Portfolio Committee.
Powers, Privileges and Immunities Amendment Bill: briefing
Ms Daksha Kassan, Parliamentary Legal Advisor, explained that on 18 March 2016, the Constitutional Court confirmed the order of constitutional invalidity granted by the Western Cape High Court in Democratic Alliance v Speaker of the National Assembly and others  ZACC 8. It confirmed that section 11 of Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act was constitutionally invalid to the extent that it applies to Members of Parliament and Provincial Legislatures as it curtails the parliamentary privilege of free speech which is protected in sections 58(1) and 71(1) of the Constitution and in section 117(1) for provincial legislatures.
Section 11 of the Act reads: “A person who creates or takes part in any disturbance in the precincts while Parliament or a House or Committee is meeting, may be arrested and removed from the precincts, on the order of the Speaker or the Chairperson or a person designated by the Speaker or Chairperson, by a staff member or a member of the security services.” This section is applicable to Members who create a disturbance in the House or in Committees.
The Constitutional Court stated that the omission of the words “other than a member” after the word “person” at the beginning of section 11 of the Act is inconsistent with the Constitution. It confirmed that section 11 of the Act is to be read as though the words “other than a member” appear after the word “person” – so that the section is not applicable to Members. The read-in provision is as follows:
“A person, other than a member” who creates or takes part in any disturbance in the precincts while Parliament or a House or Committee is meeting, may be arrested and removed from the precincts, on the order of the Speaker or the Chairperson or a person designated by the Speaker or Chairperson, by a staff member or a member of the security services.”
On 19 May 2016, the National Assembly (NA) took a resolution that an Ad Hoc Committee be established to review the Act, taking into account the Concourt judgment, and to bring the Act in line with developments relating to parliamentary powers and privileges and to introduce an Amendment Bill. The Ad Hoc Committee also took the opportunity to look at other provisions of the Act that possibly required amendments beyond the implications of the Concourt judgment including corrections or vague and ambiguous provisions.
The Ad Hoc Committee developed a Committee Bill, involving public participation and requesting input from relevant officials within Parliament and from legal advisers in provincial legislatures, and after deliberations, it was introduced in the NA on 6 June 2018 and adopted by the NA on 28 August 2018. The Bill was then transmitted to the NCOP for concurrence on 28 August 2018.
The initial High Court judgment held:
▪ it was reasonable to construe “person” in section 11 to include a Member of Parliament;
▪ “disturbance” is so wide as to encompass the robust debate and controversial speech that are characteristic of Parliamentary discourse – held that this wide definition detracted from the Member’s parliamentary privilege of free speech;
▪ is invalid to the extent that it permits a Member to be arrested for conduct that is protected by sections 58(1)(b) and 71(1)(b) of the Constitution – namely that Members are not liable to civil or criminal proceedings, arrest, imprisonment or damages for anything said in the Houses or Committees.
The Constitutional Court considered the following issues:
1. Does section 11 infringe the privilege of freedom of speech of Members of Parliament?
2. What is the reach of “disturbance” as envisaged in section 11 and what constitutes “interference” and “disruption” in the definition of disturbance?
3. Does “person” in section 11 include a Member of Parliament, and if it does, does it impinge on the parliamentary privilege of free speech guaranteed in sections 58(1) and 71(1) of the Constitution?
4. To what extent and by what means may this privilege be limited?
Ms Kassan noted the key findings of the Constitutional Court (see document). She said that the contents of the Bill are clearly reflected in her report. Section 11 will continue to apply to members of the public.
The Chairperson noted that they have received comments from the provincial legislatures on this Bill and this is the first briefing on the Amendment Bill. The Committee has allowed the Legal Advisor to go to town on the judgment because it forms the main basis of the Amendment Bill, which is very important for the Committee. A notice for public comments has been issued by the Committee for this Amendment Bill and the public hearings date is 9 November 2018.
Ms G Oliphant (Northern Cape, ANC) asked who the Chair of Chairs is in the provincial legislature in terms of this Bill.
Mr G Michalakis (Free State, DA) said his understanding is that the Parliamentary Security Services fell directly under the authority of the Speaker of the National Assembly and the NCOP Chairperson jointly, they are both responsible if there are any arrests in terms of the legislation. He asked for confirmation on whether any arrest that has to be made in Parliament in terms of this Bill has to be made by the Parliament Security Services, not by the police. If that is not so, and this does not relate to the legislation, but does it not make sense under this Bill to have instead of police as security guards but rather have Parliamentary Security Services in the parliamentary precinct guarding the gates and ensuring that security measures are in place. Where does SAPS fit in because it cannot be that police have any authority under this legislation due to the separation of powers principle?
Ms T Mokwele (EFF) asked for clarity on the word “disturbance” – how they legally distinguish that word.
Ms Mokwele asked when drafting the Bill if they took into account the current Parliament Rules applicable to Members of Parliament in terms of freedom of speech and freedom of movement within the precinct of Parliament. The court judgment found that this Act is unconstitutional. Does this mean Parliament is restricted from using this Act when it wants to act against a particular Member? Is it permissible for Parliament to stick to this legislation when acting against a Member?
The Chairperson asked how many provincial legislatures have made comments on this Bill because this Bill also impacted them.
Ms Kassan replied that they emailed the Bill to all the legal advisors of the nine provinces, but only four provinces gave inputs on the Bill.
Ms Kassan replied about the Chair of Chairs in the provincial legislatures, saying that the Act states that the head is the Presiding Officer in Parliament who exercises control over the precinct, and the Presiding Officer is the Speaker and this also applies in the provincial legislatures.
Ms Kassan replied that the court has said the definition of the word “disturbance” is very wide. Therefore, to warrant removal, the interference or disruption must go beyond what is the natural consequence of robust debate. The interference or disruption must be of such a nature that it stops Parliament from carrying on with its business and there must be no anticipation of resumption of business within a reasonable time.
Ms Kassan replied on whether they have checked the Parliament Rules, saying that this Bill was in response to a judgment on the particular section of the Act. They had to ensure that the Act no longer regulates freedom of speech in the Houses and Committees, and it was against that background that they tried to remedy the provisions of the Act. It was not their task to look at whether the current rules that regulate removal of Members of Parliament are constitutional or not. However, subsequent to this judgment the rules regulating removal have been readjusted and they appear in Chapter 5 of the NA Rules. Chapter 5 also deals with the removal of the Member or ordering the Member to vacate the Chamber of the NCOP.
Ms Kassan replied that the rest of the Act still applies following that judgment. It is only one section of the Act that was declared unconstitutional.
Ms Sueanne Isaac, Parliamentary Legal Advisor, added that due to the reading-in provision of the Constitutional Court, it meant that the Act has been effectively amended. It meant that from the day of the judgment, section 11 has been amended to exclude Members and has had to apply in Parliament.
Ms Isaac said that the Parliamentary Security Services and police guarding the parliamentary precinct both function in coordination in Parliament. The Parliamentary Security Services according to policy have a specific role of guarding the internal security of Parliament. In terms of the Act there is a specific role for the security services, but the police will continue to perform the policing function. In terms of section 4 of the Act the member of the security service should remain in the parliamentary precinct for the purpose of performing any policing function only on the authority of the Speaker and the Chairperson. Obviously, the Speaker and the Chairperson have given authority for members of the security services to remain in the precinct. Secondly, in terms of section 4(2) of the Act when there is imminent danger in the precinct the police do not need the permission of the Speaker and the Chairperson. They can come in and perform the normal police function. Therefore, the role of police to perform their normal policing function remains and they work together with Parliamentary Security Services to provide internal security in Parliament.
Dr H Mateme (Limpopo, ANC) asked what the situation is if the Presiding Officers are not able to perform this function. If a Member is delegated in the absence of the presiding officer, is that power to call in the security services transferred? Does the principle of the law apply only after the law has been signed?
Ms Mokwele said that she is glad that the NA Rule speaks to the Constitutional Court judgment. She asked if it is permissible for the NCOP Presiding Officer to employ the NA Rules in the NCOP as the Rules Committee is still struggling to amend the NCOP Rules. NCOP Members have been manhandled and removed from the NCOP chamber and there is no NCOP Rule that provides for that. It is illegal and unconstitutional.
Mr Michalakis asked for more clarity on section 4 in terms of the definition of security services, which the legal advisor noted in her response. He asked if the consultation of the provincial legislatures gave them an extensive chance to make inputs so that they are included.
Ms Kassan replied that the delegation of duties of the Presiding Officer, the Rules provide for the election of an acting Chairperson in the absence of the NCOP Chairperson. And the acting Chairperson has the powers, functions and responsibilities of the Chairperson.
Ms Kassan replied that the definition of security services in the Act does conform with section 119 of the Constitution.
Ms Isaac replied that this Bill is still in the making and until it is signed as Act, only then it becomes law and can be enforced.
Ms Isaacs replied about applying the NA Rules to the NCOP that these are separate Houses and each House must have its own set of rules. She does not think the NA Rules can be applied to the NCOP.
Ms Isaacs replied about how far they have included the provincial legislatures. There were two stages to the drafting of the Bill. Initially an Ad Hoc Committee was established with its terms of reference and how far this Amendment Bill should go. She was responsible for the drafting of the Bill and at that stage they sent emails to all the provincial legal advisors and to officials in Parliament to work on the Bill and identify challenges which they feel should be dealt with in this Act. But they had received limited responses and inputs from the provincial legal advisors.
The second call for comment was made by publishing the Bill for public comment. They gave out the Bill to all the provincial legal advisors. Again that did not yield much comment and only four provinces responded and commented on the Bill. The provinces will not be called on again to make comments because this is now the NCOP public participation process going forward.
The Chairperson requested that they close this matter as it is the first time the Committee deals with it and there is still more time to deal with it in future.
Independent Police Investigative Directorate (IPID) Amendment Bill: briefing
Mr Michael Prince, Parliamentary Legal Advisor: Parliament said that the Constitutional Court declared the following provisions invalid to the extent that they authorised the Minister of Police to suspend, take disciplinary steps, or remove from office the IPID Executive Director:
▪ section 6(3)(a) and 6(6) of the Independent Police Investigative Directorate Act, 2011;
▪ sections 16A(1), 16B, 17(1) and 17(2) of the Public Service Act, Proclamation 103 of 1994;
▪ Regulation 13 of the IPID Regulations.
The ConCourt directed Parliament to cure the defects in the Act within 24 months from the date of the order.
Mr Prince said the Portfolio Committee on Police on16 March 2018 requested permission from the NA to draft and introduce a Committee Bill to address the Constitutional Court order in the McBride matter. On 24 April 2018 the NA granted permission to introduce a Committee Bill. On 1 June 2018 the Portfolio Committee advertised the IPID Amendment Bill for public comment. On 28-29 June and 3-4 July 208 the Portfolio Committee held public hearings on the Amendment Bill.
On 4 July 2018 the Constitutional and Legal Service Office of Parliament certified the Amendment Bill in terms of NA Rule 279(4). On 26 July 2018 the Joint Tagging Mechanism tagged the Amendment Bill as a section 75 Bill. On 30 July 2018, the IPID Amendment Bill [B25-2018] was introduced in the NA. On 4 September 2018 it was passed by the NA and transmitted to the National Council of Provinces.
Mr Prince said that the IPID Amendment Bill seeks to amend the IPID Act, 2011 to give effect to the Constitutional Court order in the matter of Robert McBride v Minister of Police and Minister of Public Service and Administration. It does this by providing for parliamentary oversight in the suspension, discipline or removal of the Executive Director of IPID.
▪ Clause 1 of the Bill amends section 6 of the IPID Act by repealing subsection (6), which deals with the removal of the Executive Director.
▪ Clause 2 of the Bill provides a new section 6A which provides for the Executive Director’s removal from office. The Executive Director may only be removed by a resolution of the National Assembly – clause 6A (1) and (2). The Minister may suspend the Executive Director only after a National Assembly Committee has started proceedings to remove the Executive Director – clause 6A(3)(a). It also confirms that the Minister must remove the Executive Director after the National Assembly has adopted a resolution to that effect – clause 6A(3)(b). The clause grants the Minister the discretion to allow on the request of the Executive to vacate office – clause 6A(4). The Executive Director must send the request to the Minister at least 6 months before the date for vacating office – clause 6A(5).
▪ Clause 3 describes the short title and commencement
The Chairperson asked the IPID representative to comment on this Bill.
IPID comments on the IPID Amendment Bill
Ms Marianne Moroasui, Chief Director: Legal Services: IPID, said that the stance of IPID is that they are not satisfied with the amendments. IPID is of the opinion that in order for it to discharge its mandate fully and precisely, the Act has to be amended in its entirety. She gave the example that when high profile investigations were conducted by IPID, as a result counter investigations were launched by South African Police Service (SAPS) members. If this is not dealt with, IPID cannot discharge its mandate correctly.
This Bill does not deal with instances where there are counter investigations from SAPS members who are being investigated by IPID. In section 29 of the IPID Act, if she is not mistaken, where an investigator has a conflict of interest when carrying out an investigation that investigator must disclose his conflict of interest. Such a clause is not contained in the SAPS Act. As a result, SAPS members when investigated by IPID make counter investigations. Section 4 of the IPID Act deals with instances where members of other institutions are obligated to assist IPID in conducting investigations. If not, IPID is hamstrung in discharging its mandate. There are a number of examples where IPID is hamstrung in discharging its mandate.
Therefore, if this Bill continues as is they submit that this entire Act should be amended. In terms of the process going forward IPID is of the opinion that this is a very important Bill and if it continues as a Committee Bill it is not solving anything for IPID. The Act was supposed to have been amended by the 1 September 2018, and even though it is shorter and was made into a Committee Bill it has yet to be finalised.
IPID would suggest that the Committee should proceed and extend the time for finalisation of the Bill. The Committee should take into consideration all the amendments that had been worked on by the Civilian Secretariat and IPID. It would serve IPID better and also serve the country better for the whole IPID Act to be amended and to consider those sections that are not in line with IPID discharging its constitutional mandate.
The Chairperson said the deadline for public comments on this Bill is the 2 November 2018 which they will most probably extend. He asked if IPID wanted to make a submission on this Bill.
Ms Mongasoi replied that IPID did want to make a submission to the Committee because there are amendments that have been worked out between the Civilian Secretariat and the IPID.
The Chairperson asked if the Civilian Secretariat has any comment on the Bill.
Ms Dawn Bell, Chief Director: Legislation: Civilian Secretariat for Police Service (CSPS) said that as already indicated by Ms Mongosoi they will also make a submission on the Bill to the Committee.
The Chairperson asked if SAPS has any comment on the Bill.
Brigadier Bert van der Walt, Legal Advisor, SAPS, replied that at this point they are not involved in the Bill and at the moment he is not mandated to comment on the Bill.
Mr D Ximbi (Western Cape, ANC) said that this is a very interesting Bill and the country at large wants to see an IPID that is independent. Therefore, the Act must ensure that there is no interference from police or anyone. IPID must account to Parliament but they need more independence as a police watchdog. The Committee was here when the MacBride case was being discussed and people were talking about corruption within SAPS. IPID must be given powers of independence like the chapter 9 institutions.
Ms Oliphant complained that the Bill has been decided on by the NA and it does not say anything about the NCOP process as a section 75 Bill.
Ms Mokwele suggested that the Committee must note the IPID Chief Director comments and allow for an extension date for the public hearings so that the Committee can base its discussion on the IPID submission because the Bill is directed at IPID.
The Chairperson asked Mr Prince to comment on the Constitutional Court deadline for this Bill.
Mr Prince said that this matter was heard on 5 September 2016. The court had given 24 months for the finalisation of the Bill, but that deadline expired on 6 September 2018. Parliament approached the court for an extension of that deadline. They have not received a set down date from the Constitutional Court as yet, but the matter is with the Constitutional Court for the extension of the deadline.
Mr Michalakis asked the reason for the Bill not being finalised as it has been two years now but the Bill has not been finalised. What are the legal implications of processing the Bill as a Committee?
Mr Prince replied that the reason for the delay is set out in the Chairperson of the Portfolio Committee’s filing affidavit to the Constitutional Court. The Chairperson noted that right at the beginning there was mention of an Executive Bill that would come from the Department to deal with this matter. It should be remembered that this Bill is a Committee Bill. It was on 16 March 2018 that the Portfolio Committee decided that the Executive Bill will not come in time or it will not come at all. The Portfolio Committee approached Parliament Legal Services to assist it to meet the deadline. Legal Services advised the Committee that it had to obtain permission from the NA. That permission was given in April 2018, from there the Committee Bill was developed. The Bill was advertised in June 2018 and public hearings were held in June and July 2018. On 30 July the Bill was accepted for introduction by the NA. The Bill was passed on 4 September 2018.
Mr Nathi Mjenxane, Parliamentary Legal Advisor, agreed with his colleague that the Chairperson of the Portfolio Committee explained why the Bill took so long in his affidavit to the Constitutional Court and why the 24 month deadline was not met. It should be mentioned that this is not the first Bill where they have had to approach the Constitutional Court for an extension because the 24 month deadline assumed that it will be prioritised and would be the only Bill the Committee deals within its schedule. In practice the 24 month deadline is difficult for the Committee to meet. The Speaker has an affidavit contending what the Chairperson of the Portfolio Committee has said are the reasons for the delay. There are currently two matters in the Constitutional Court for which they are seeking a deadline extension.
The Committee Secretary suggested that whilst awaiting the ruling on the deadline extension, the Committee continue with the public hearings on the Bill
Mr M Mthethwa (KwaZulu-Natal, ANC) said that they should allow the processing of the Bill to take place accordingly and also ensure IPID makes a submission.
The Chairperson said they should put the discussion on the Bill on hold and allow the Constitutional Court to pronounce itself on the deadline extension. They will consider the public hearings process after the court has pronounced on the matter.
The Committee agreed.
Critical Infrastructure Protection Bill [B22B-2017]: Written public comments
Mr Michalakis asked for clarity as the agenda stated: Committee to decide whether written comments received are sufficient for deliberation or whether further oral presentation for clarity is required. If they are going to deliberate on the Bill, he would request that they be given time to go through the Bill and come back with an informed mind to deliberate on this Bill.
Brigadier Bert van der Walt, Legal Advisor, SAPS, replied that he is speaking on behalf of the Civilian Secretariat for Police on why this Bill is urgent as the protection of the national key points is something that is affecting the whole country. He referred to the recent incident that happened in Parliament where a person killed himself with a gun within the institution. This Bill was really formatted in the Portfolio Committee and many submissions were processed. On the public comments, the only outstanding matter in their view comes from the Banking Association of South Africa. Its concern is that the application of sections 17(4) and 20(4) – (6) of the Bill may be constitutionally questionable on the basis that the legislation should clearly set out objective criteria for decision making, where administrative discretion is granted to the executive. The Portfolio Committee will take that information up and take proposals from the Department’s side by amending those sections.
Brig van der Walt replied that the other important submissions came from the South African Editors Forum and Amabhungane and those submissions were made to the Portfolio Committee. A document will be provided to the Committee through the Committee Secretary which details everything on the submissions.
Mr Michalakis asked which proposals in the submissions made it into the Bill before it came to the Select Committee, what process was followed and at what stage?
Brig van der Walt replied that this Bill was very much consulted even before it reached Parliament and during that process there was an opportunity to make submissions, and the date for that was also extended. He cannot comment on the exact number of organisations who commented on the Bill, but there was substantial comment and debate on content of the Bill, which is why there are proposed amendments to ensure that this Bill is in line with other legislation.
The Chairperson said they noted the comment from the Civilian Secretariat on the Bill. Given the request from Mr Michalakis, they would hold off on deliberating on the Bill.
The Committee agreed.
The Committee adopted the minutes of 12 September and 17 October 2018 without amendments.
The meeting adjourned.
- Critical Infrastructure Protection Bill: B - version
- amaBhungane submission: dated 12 September 2018
- Independent Police Directorate Amendment Bill presentation
- CSP - Critical Infrastructure Bill [B22B-2017] presentation
- DA v Speaker judgement
- Powers, Privileges and Immunities of Parliament and Provincial Legislatures Amendment Bill presentation
- Critical Infrastructure Bill opinion
- Speaker of Parliament Tagging Bills Opinion
- amaBhungane submission: dated 21 September 2018
- South African National Editors Forum (SANEF) submission
- South African National Editors Forum (SANEF): Annexure 1
- Business and Arts South Africa (BASA) submission
- Critical Infrastructure Bill [B22B-2017]: summary of submissions
Mthimunye, Mr S
Chetty, Mr M
Engelbrecht, Ms B
Mateme, Dr H
Michalakis, Mr G
Mokwele, Ms T
Mthethwa, Mr JM
Oliphant, Ms G
Wana, Ms T
Ximbi, Mr D
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