Critical Infrastructure Protection Bill: adoption; United Arab Emirates (UAE) Extradition Treaty; with Deputy Minister

NCOP Security and Justice

27 November 2018
Chairperson: Mr S Mthimunye (ANC, Mpumalanga)
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Meeting Summary

Mr G Michalakis (DA, Free State) made a proposal relating to section 4(2)(c) of the Critical Infrastructure Protection Bill. He said there seemed to be a void in the Bill regarding expertise in the advisory committee on the issue of cyber security. Both the South African Police Services (SAPS) and the Civilian Secretariat for Police had supported his proposal, as it strengthened the Bill. The Committee, seeing no harm in the proposal, agreed to it. The newly proposed section 4(2)(c)(iii) would state, “at least one of the five members stated above should be appropriately qualified in the field of cyber security.” The Committee unanimously agreed to the Bill, and it was adopted with amendments.

The Department of Justice and Constitutional Development (DoJ&CD) said the purpose of the Extradition Treaty and the Mutual Legal Assistance in Criminal Matters Treaty that was signed between SA and the United Arab Emirates (UAE) government was to underscore that SA was not a safe haven for criminals by providing for the extradition of fugitives and to facilitate the effectiveness of law enforcement authorities in the prevention, investigation and prosecution of crime. Ratification of the Treaties would assist the government’s programme of action and inspire public confidence in the criminal justice system to prevent crime and increase levels of safety. The Committee was provided with background on the process around the Treaties. Members appreciated the efforts that had been put in on the Treaties and had no objection to either of them. The Chairperson placed the Treaties before the Committee for consideration. Members were in support of the Treaties being ratified.

The Deputy Minister of Justice and Constitutional Development raised two issues which he wished the Committee to place on its agenda. The first was that the National Assembly (NA) was considering the Cyber Crime and the Child Justice Bills. He hoped that the Bills would be passed before Parliament rose for the term. He asked the Committee to place the Bills on its agenda. The second issue was around the suspension of the KwaZulu-Natal Regional Court President by the Minister of Justice. Parliament needed to confirm the suspension, and the National Council of Provinces (NCOP) had not yet confirmed it. He asked that before the Committee rose for the term, it would to take the matter to the House.

The Chairperson responded that the Committee would not discuss the matters that the Deputy Minister had raised. Members felt that in order for the Committee and the NCOP to do a proper job, it had to take its time to deal with the matters he had raised. The Committee was not about to rubber stamp decisions taken by the NA.

Meeting report

Critical Infrastructure Protection Bill

The Chairperson said that Mr G Michalakis (DA, Free State) had approached him and had asked for the opportunity to address the Committee on the Bill. He invited Mr Michalakis to go ahead and address the Committee.

Mr Michalakis said that his proposal was on section 4(2)(c) of the Bill, which related to the advisory committee and the persons who were to serve on it. He had a draft proposal that would be handed out to the Committee. Some background to the proposal was that he had asked the Minister of Police what was to be done around cyber security. He pointed out that if critical infrastructure was attacked it would be through cyber security. The Minister of Police had agreed with him on the point. There was therefore a need for greater expertise on the advisory committee.

The Minister of Police had understood the point that he had made, but unfortunately the matter had not found its way into the Bill. All references to cyber security in the Bill had been removed. There was a void in the Bill that needed to be filled. There was nobody to advise the Minister on cyber security issues. There was no real expertise on cyber security on the advisory committee. Cyber security was the biggest threat. The advisory committee would have a representative from the State Security Department, but the person was no expert on cyber security.

He explained that his proposal took the form of two options that the Committee could choose from. The first was to amend section 4(2)(c) (ii), with the insertion of “and cyber security” at the end of the sub-section. The second option was a totally new sub-section (iii). Section 4(2)(c)(iii) would state that “at least one of the five members stated above should be appropriately qualified in the field of cyber security”. The proposal he was making was in no way making reference to cyber security provisions having been removed from the Bill. What he was proposing was merely filling a void. He added that he had discussed the matter with the Civilian Secretariat for Police, and there was agreement that the issue was around security.

Brigadier Bert van der Walt, Legal Adviser: South African Police Service (SAPS), confirmed that he had discussed the matter with Mr Michalakis and that it was a good recommendation. He was not opposed to it being included in the Bill.

Dr H Mateme (ANC, Limpopo) said that if the proposal would do no harm to the Bill, then it should be included.

The Committee consequently agreed to the proposal by Mr Michalakis.

Mr Michalakis thanked the Committee for accepting his proposal, but said that he was more in favour of option two being included in the Bill. Option two was a new subsection (iii). Section 4(2)(c)(iii) would state, “at least one of the five members stated above should be appropriately qualified in the field of cyber security”.

The Committee agreed to the new section 4(2)(c)(iii).

The Chairperson placed the Bill before the Committee for adoption.

The Committee unanimously agreed to the Bill and it was adopted with amendments.

The Chairperson read out the Report of the Committee, which essentially stated that the Bill was unanimously adopted as amended.

United Arab Emirates (UAE) Extradition Treaty

Mr Herman van Heerden, Principal State Law Adviser: Department of Justice and Constitutional Development (DoJ&CD) said that the purpose of the Extradition Treaty and the Mutual Legal Assistance in Criminal Matters Treaty that was signed between SA and the United Arab Emirates (UAE) government was to underscore that SA was not a safe haven for criminals by providing for the extradition of fugitives and to facilitate the effectiveness of law enforcement authorities in the prevention, investigation and prosecution of crime. Ratification of the aforementioned Treaties would assist the government’s programme of action and inspire public confidence in the criminal justice system to prevent crime and increase levels of safety.

The Committee was provided with the background on the process around the Treaties. The first round of negotiations took place in SA from 1 to 5 February 2010. The second round of negotiations took place in Abu Dhabi from 23 to 26 May 2011. The Treaties had been submitted to the State Law Advisers in the DoJ&CD during August 2011, and to the State Law Advisers in the Department of International Relations and Cooperation (DIRCO) during October 2011. Minor amendments had been proposed and submitted to the UAE authorities during January 2012.  SA had also suggested an additional amendment further down the line.

The UAE had accepted all the amendments proposed and President Ramaphosa, on 22 September 2018, had authorised the Minister of Justice and Correctional Services to sign the Treaties on behalf of the South African government. The Minister had signed the Treaties on 25 September 2018 during his visit to Abu Dhabi. The Committee was provided with insight into the specific provisions (articles) of each of the Treaties.

Mr John Jeffery, Deputy Minister of Justice and Constitutional Development, apologised for arriving late for the meeting. He pointed out that the National Assembly (NA) had approved the Treaties.

Dr Mateme said that the Treaties were highly technical. She felt that if Deputy Minister Jeffery was satisfied with them, then the Committee should move on to the next step of the process. She said tat it was evident that a great deal of work had been done on the Treaties, and that the concepts had been thought through.

The Chairperson asked if Members or Committee staff had any issues around the Treaties.

Members and Committee staff seemed to have no objections on either of the Treaties.

Ms G Oliphant (ANC, Northern Cape) asked for the DoJ&CD to speak to the matter of the death penalty as a sentence.

Mr Van Heerden responded that SA would not extradite a person unless an assurance was given that there would be no death penalty, or if there was a death penalty, there needed to be an assurance that it would not be carried out.

Deputy Minister Jeffery said that the aforementioned were requirements of the Constitutional Court. He explained that it was the Executive of a country that decided whether a death penalty was carried out or not.

The Chairperson placed the Treaties before the Committee for consideration. Members were in support of the Treaties being ratified.

The Committee Report reflected that the Committee recommended that the House approves the ratification of the said Treaties in terms of section 231(2) of the constitution.

Deputy Minister Jeffery thanked the Committee for its cooperation. He did, however, wish to raise issues which he wished the Committee to place on its agenda. The first was that the National Assembly was considering the Cyber Crime and the Child Justice Bills. He hoped that the Bills would be passed before Parliament rose for the term. He asked that the Committee place the Bills on its agenda.

The second issue was around the suspension of KwaZulu-Natal Regional Court President, Mr Eric Nzimande, by the Minister of Justice, Mr Michael Masutha.  He said that Mr Nzimande had been relieved of his duties and was sitting at home. The point he was getting to was that Parliament needed to confirm the suspension of Mr Nzimande. He pointed out that the National Council of Provinces (NCOP) had not yet confirmed the suspension. He asked that the Committee before it rose for the term take the matter to the House.

The Chairperson said that the Committee would not discuss the matters that Deputy Minister Jeffery had raised. With tongue in cheek, he said that Mr Jeffery had sneaked the matters in during Committee discussions.

Mr Michalakis agreed with the sentiments of the Chairperson. In order for the Committee and the NCOP to do a proper job, it had to take its time to deal with the matters raised by the Deputy Minister. The Committee was not about to rubber stamp decisions taken by the NA. However, he did understand the importance of the Bills referred to by Mr Jeffery.

The Chairperson reiterated that the matters brought up by the Deputy Minister would not be open for discussion by the Committee.

Mr M Chetty (DA, KwaZulu-Natal) also agreed that the Committee would not rubber stamp decisions taken by the NA.

Committee Minutes

Minutes dated 7 and 21 November 2018 were adopted unamended.   

The meeting was adjourned.

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