Critical Infrastructure Protection Bill: NCOP amendments; Regulation of Gatherings Amendment Bill: deliberations

Meeting report

The Chairperson said the purpose of the meeting is for Members to be briefed on the Regulation of Gatherings Amendment Bill, a Private Member’s Bill, consider amendments made by the National Council of Provinces (NCOP) on the Critical Infrastructure Bill and adopt the Committee’s report on its oversight visit to the Eastern Cape.

Regulation of Gatherings Amendment Bill

Adv Charmaine van der Merwe, Senior Parliamentary Legal Advisor, informed the Committee that the first requirement of a Private Member’s Bill is that it must be certified that it had been drafted to be in line with the Constitution. It is then introduced and classified either as a Section 75 or 76 Bill. In this case it is a Section 75 Bill. The Committee would then deliberate on a Motion of Desirability after which Members go through clause-by-clause deliberation. Two outcomes could be expected from the process of deliberating on the Motion of Desirability - if the Committee decides the Private Member’s Bill is desirable, the Bill will then be put out for public comment. Depending on comments, the Committee could decide to have a public hearing after which the Committee sends a Report to the House on the comments. If the Committee decides that the Private Member’s Bill is not desirable, a Report would still need to be compiled on why the Bill is not deemed desirable.

Regulation of Gatherings Amendment Bill Brieing

Adv Anton Alberts (FF+) addressed why his Private Member’s Bill deserved the attention of the Committee. The Bill seeks to prohibit all demonstrations and gatherings at any place within a radius of 500m of a building which houses a school, nursery, children’s home and houses of safety. It allows for reasonable exceptions by the MECs of Education (schools) and Social Development (nurseries, children’s homes and houses of safety) who may provide permissions based on regulations issued by the Ministers of Basic Education and Social Development.

The amendment proposed in the Private Member’s Bill is to protect the rights of children as entrenched in Section 28 (1) (d) and Section 28(2) of the Constitution which is supported by the Constitutional Court ruling on a case between Christian Education South Africa (CESA) vs. Minister of Education 2000 (4) SA 757 (CC).The ConCourt ruled that ‘in every matter concerning the child, the child's best interests must be of paramount importance’, hence the child had a right to be protected from abuse, degradation maltreatment or neglect. The South African Human Rights Commission (SAHRC) Report on the National Investigative Hearing into the Impact Of Protest-Related Action on the Right to a Basic Education in South Africa (2016) found many schools /learners were affected directly and indirectly. The effect included intimidation of learners, looting of school property and undermining of rights to basic education through disruption of schools. It appeared that when basic education was undermined through disruption of schools, it drew immediate high-level government reaction hence this action was seen to be “fair game” and, as a result, the trend is on the increase. In the case between the CESA versus Minister of Education 2000, the ConCourt also ruled the state is further under constitutional duty to take steps to help diminish the amount of public and private violence in society and to protect all people, especially children, from maltreatment, abuse or degradation. The SAHRC Report also noted that protest actions did not only affect children but the police were slow to act, no uniform response was in place when protests occurred and this undermined the right to basic education. Also, no reported action was taken on parties that affected the right to basic education and there was a slow response by government departments to actions that affected schools.

Although Section 17 of the Constitution gives everyone the right to assemble, demonstrate, picket or present a petition, while not negating or denying people these rights, the action could be limited. He presented the constitutionality of the Bill by saying that, if children could be protected from institutional violence (corporal punishment), why not from external violence such as protests. Hence in balancing competing rights of children and the right to protest action, the state has an obligation to protect children as seen in Section 7(2) of the Constitution and upheld by the ConCourt. Hence the state is obliged to 'respect, protect, promote and fulfil children rights and take appropriate steps to reduce violence in public and private life”. As the state has a special duty towards children, this obligation represents a powerful requirement on the state to act. Hence the state must provide laws to protect children from violence in public and private life. He also argued the damage caused by trauma could be permanent – there is also the possibility of death. Section 11 creates liability for physical damages but it did not protect against bodily and psychological harm. He said the Bill created reasonable conditions to ensure the child was not subjected to violence or harm in the form of trauma or death. In the case between the South African Transport and Allied Workers Union (SATAWU) and another versus GARVAS and others 2013 (1) SA 83, the ConCourt decided that when a protest endangers the vulnerable, damages arising from the protests must be borne by organisations responsible for setting in motion the events which led to the damage. The limitation proposed is designed to ensure the child was protected. The proposed amendment Bill strikes a good balance between the rights of children and the right to assemble. If the ConCourt can find that claiming damages after violent protest is constitutional, then protecting children before any protest, by imposing a 500m perimeter, must also be constitutional. He argued that if Parliament has a 100m perimeter rule against violence near the precinct, it would be just and fair that Parliament enact an amendment that protected vulnerable pupils. If staff of schools decide to go on industrial action to protest against the school management where they are employed, the mode can be debated in Parliament but there can be no violence within the schools because it affects pupils. He concluded by saying that Parliament must act to protect its future generation when it engages on safety in public places if it wants learners/pupils to become future leaders.

Civilian Secretariat for Police Services (CSPS) on the Regulation of Gatherings Amendment Bill

Dr Philip Jacobs, CSPS Director: Legislation, said since 1994 there has been a Regulation of Gatherings Act (1993) that protected the gathering of people and this Act worked well. There was an amendment in 1996 that rationalised safety matters. The Committee would remember that in 2013, carrying of weapons was dealt with. The first challenge dealt with was liability of parties that participated in the protest because, despite notification, there was a lot of damage to people and vehicles. Hence even if an Act prohibits people, people could still contravene the Act. The Regulation of Gatherings Act says that if 16 people or more organise a gathering, the parties must give prior notice to the municipality. The municipality would then review conditions of the gathering to see if any risks would be involved and decide either to allow the gathering or not. The parties do not need to obtain permission because it is a right of the parties to gather or protest any injustice. However, the reality of today is that when a crowd with sticks gathers to protest, it is difficult to disarm people and crimes could be committed. The CSPS appreciates the contribution of Adv Alberts because children are dear to all. The CSPS admits there is a need to review the Regulation of Gatherings Act compiled in 1993. Many issues have taken place since the 1996 amendment but areas mentioned by Adv Alberts are in line with the Constitution. The police can be involved if it is perceived that a gathering would have risk implications. In international law, if risk is perceived, the police are allowed to use force to stop protests. Although ConCourt judgements have been made, there is a need for legal clarity. As elections are coming soon the amendment Bill might not be completed before Parliament rises hence it is better that the Regulation of Gatherings Act be reviewed.

Discussion

Ms D Kohler Barnard (DA) asked if the courts set a deadline to the rulings. She noted it appeared the amendment would not get to Parliament until 2020. She expressed concerns that SAPS could not control crowds but said Parliament could not afford to look the other way when learners were placed at risk in schools and universities when properties were being destroyed. She expressed fears that although the amendment was important, the process of legislation took time. She remarked that with the ongoing trend of protests, it would not be long before learners were caught in the backlash of people protesting an injustice.

The Chairperson apologised to Members for not sending notes on the Regulation of Gatherings Amendment Bill earlier – it would be sent by the Committee Researcher later today.  

Mr Z Mbhele (DA) said no one would disagree with the various provisions in law to protect children but added the argument should also be made for other government institutions such as hospitals. Hence the Committee needs a comprehensive umbrella to refer to the issues together. He asked Adv Alberts to indicate if the proposed Regulation of Gatherings Amendment Bill had a punishment statement on the action that would be taken against any party that contravened it - not having any punishment statement could create challenges in the future. Even before the court ruled, the Constitution says there is no offence when people gather but when violence occurred it becomes an offence. Whether or not the 500m clause in the Regulation of Gatherings Amendment Bill is breached, if SAPS asks protesters to move and they disobey, it becomes an offence.

Ms A Molebatsi (ANC) asked the CSPS to clarify what would be done if the community had a legal right to protest and then violence occurred. She asked if the provisions arising out of the SAHRC research on the matter of crowd control was insufficient. She asked Adv Alberts who would determine the 500m gap.

Dr P Groenewald (FF+) said people did not know that when children observe such violence, it often results in consequences such as trauma. He was concerned by the view of the CSPS that the Act should be revised. This is exactly what was said on the Member’s Firearms Control Amendment Bill. Such review could only occur after the elections. He noted that SAPS simply observed during protests maybe because of what happened at Marikana – SAPS officers were now too scared to react to violent protests. Hence if a 500m gap clause is inserted into the Regulation of Gatherings Amendment Bill, the police can then act if the clause is breached. The Committee and Parliament needed to create laws that would ensure the police could act.

Adv Alberts said there were speculations that SAPS did not want to act during protests because of repercussions that occurred as a result of the Marikana case. He was not sure that Philip Jacobs read the SAHRC report which showed that parents react when their children were at risk and such reaction could lead to more chaos. A law that needs to be enforced must be enforced and if SAPS has any psychological challenges it must be dealt with. If SAPS does not want to then the state must create an atmosphere for it to happen because, as the ConCourt provided, SAPS is slow to execute its mandate against parties involved in violent protests. Mr Mbhele said there may not be any consequence to punish people involved but Section 12 (12b, d and e) recommends a fine or imprisonment not exceeding one year. Hence if the Bill is accepted there would be a punishment. SAPS must act if there is a rule of a 500m gap when it presupposes there is intention to harm. He was not sure of the provisions of the SAHRC on crowd control but if the police was not complying with the provisions of the Commission on crowd control, then the police is at fault. Provisions of the Commission need to be respected especially if it involved protection of children. Depending on the school, the MEC must make provisions e.g. if the space around the school is not up to 500m. He agreed with Dr Groenewald that children within the area who observe such violence were affected by the trauma. He noted the CSPS agreed there should be a general review but Parliament could not wait for such. The SAHRC report says a clear trend of escalation of violence during protests exists already – schools have already been burnt down. The trend is concerning.

Mr Mbhele clarified Ms Molebatsi was referring to the SAHRC’S provision on crowd control which wants public order policing records to be made public – doing so would make it easier for SAPS to defend any action taken, provides proof of what actually happened and also helps to hold people accountable. It would therefore be helpful if the recordings and documents of such protests were available.

Dr Jacobs said he never said when people break rules during protests they should not be punished. The Regulation of Gatherings Act provides that if there is specific information that an element of risk would occur during protests, it can be prevented because the police can take certain legal steps. Presently, gatherings are a right and the law empowers it but the challenge is the conduct of the people that gather. In practice, if there is information the gathering would involve risk, the gathering can be stopped.

Mr J Maake (ANC) noted the Committee was talking about amendments to the Regulation of Gatherings Act but Philip Jacobs talked about streamlining or reviewing. The Member was of the view that the amendment should be without review. There needs to be clarification if the gathering referred to could arise from shebeens or police stations close to schools of a demonstration against an injustice. Problems could arise in the future if it was not streamlined.

Adv Alberts responded that if the protest was linked directly to the school or incidental, it should occur 500m away from the school. However, if reasonable concerns of space occur, the gap could be less than 500m. He was of the opinion that it was not fair that Parliament had 100m gap to protect it from protests bout learners did not have such protection. Even Philip Jacobs said there are provisions if a perceived risk is known. He maintained that if Parliament had a 100m protection from protests then children should have the 500m protection too.

The Chairperson reiterated that Members would receive notes from the Committee Researcher on the Regulation of Gatherings Amendment Bill later in the day.

Critical Infrastructure Protection Bill

Brig. Bert Van der Walt, SAPS Legal Advisor, said the proposed changes related to Clause 7 and Clause 12 as proposed by the Select Committee.

Clause 7

In Clause 7, which details the function of the Critical Infrastructure Council, Clause 7(6) stipulates the reporting structure of the Critical Infrastructure Council. The Committee was of the opinion the Critical Infrastructure Council’ must submit report to the Minister within three months after the end of the financial year. This is proposed to be a bi-annual submission and the CSPS has no objections. Guidance would be taken by the Portfolio Committee.

Clause 12

Clause 12 refers to ad hoc committees. Clause 12(8) was deleted because the cybercrime and cybersecurity part of the Bill was separated and cybersecurity was taken out while cybercrime was retained. The omission also affects Clause 17(4), 20(4, 5 and 6) and Clause 30(9) so they would be omitted. Changes were due to removal of cyber-security from the Cybercrimes and Cybersecurity Bill [B6-2017] therefore all clauses that referred to cybersecurity were removed.

Discussion

The Chairperson noted it was only the wording that changed.

Brig. Van der Walt said all wording was changed and deleted. It was also decided that ‘scrutiny’ should be substituted with the word ‘notification’ in terms the Minister submitting regulations. The rest of the amendments are cross-referencing and numbering.

Mr Maake asked the CSPS to define and differentiate between cybersecurity and cybercrime. He asked the CSPS to state why Parliament should not scrutinise any regulations proposed by the Minister.

Mr Mbhele noted that it seemed when the Bill was engaged at the Committee, there was no clarity on some matters but during the NCOP engagements the Minister had clarity.

Brig Van der Walt agreed.

Mr Mbhele needed clarity on the word ‘scrutiny’ as there was a goodwill that allowed Members to examine legislation before it was finalised. The word ‘notification’ means the regulations are submitted to the Committee without it able to make input – this is unacceptable. The Committee has to take back its power.

Ms Molebatsi asked what the phrase “not allow Parliament to scrutinise regulation” meant.

Ms Kohler Barnard said if the Minister said cybersecurity should be removed – it would be highly irregular if the Minister was part of the proceedings in guiding what should be excluded or not. She noticed clauses were slipped through after the Committee engaged on regulations - this was why the Committee had an agreement to check the Bill clause-by-clause before it was finalised. She disagreed with these clauses slipped in.

Brig. Van der Walt said the CSPS was advised by the State Law Adviser to remove cybersecurity because it had been taken out. The word ‘scrutiny’ was substituted with the word ‘notification’ after the Committee and CSPS debated about it.

Mr Maake noted that his question was not answered because he was asking the wrong people. He differentiated between notification and scrutiny.

The Chairperson recalled that the Committee and CSPS debated but the Committee was against the word ‘notification’ because the word did not allow input from the Committee to be taken into account in the regulations. Hence the Committee insisted the word ‘scrutiny’ be used.

Mr Mbhele sought clarity on what happened after the NCOP had given its inputs on an amended Bill and sent it back to the Committee.

The Chairperson replied that the Committee’s view would prevail.

Ms Kohler Barnard said if the National Assembly disagreed with an NCOP decision there should be a negotiation. Hence she suggested the Committee examine the Rules before deciding.

The Chairperson advised Members to read the notes of the Committee Researcher.

Mr Milton Ntwana, CSPS Director: Legislation, said the next line of action depended on if the Bill is tagged as a Section 75 0r Section 76.

The Committee Researcher informed the Committee that the Bill is Section 75 and the process was determined by Rule 309. The decision of the National Assembly would be implemented and the Bill would be adapted on this basis.

Ms Kohler Barnard said if there was no Cybercrimes Bill yet it should be handled in the Critical Infrastructure Protection Bill until the Cybercrime Bill was passed.

Brig Van der Walt said matters of infrastructure were handled by the Minister of Police and the Critical Infrastructure Bill would not affect cybercrime in any way.

The Chairperson said his attention was drawn to the notes by the Committee Researcher regarding definitions. He asked for clarity on the statement that the definition of infrastructure and security measures were ‘superfluous’.

Brig Van der Walt said the procedure was correct and the definition of infrastructure had to be removed.

Mr Maake asked for clarification on the statement that the definition of infrastructure should be deleted.

Brig Van der Walt replied that it was superfluous because all aspects of cybersecurity had been removed. In the case of ‘security measures’, the 9b) portion of the definition, which refers to any physical structure that houses information infrastructure, should be removed.

Ms Kohler Barnard argued that the physical structure which houses the information infrastructure was a solid part of the Bill. Why should it be removed?

Brig. Van der Walt explained the proposal from the department is that the‘d’ paragraph (additional security measures) be taken out. 

Ms Kohler Barnard asked how the definition for security measures became superfluous.

Mr Ntwana pointed out the proposal came from the research unit but the CSPS disagreed.

The Chairperson resolved that the CSPS should come up with a ‘C’ version of the Critical Infrastructure Protection Bill that had the wording ‘scrutiny’ instead of notification.

Brig Van der Walt said it was not the ‘C’ Bill but the “C” List.

Ms Kohler Barnard agreed it was the ‘C” List.

The Chairperson also agreed it was the ‘C” List.

Draft Report of the Portfolio Committee on Police Oversight Visit to Eastern Cape

Ms Kohler Barnard suggested a list of Members that attended the Eastern Cape oversight visit be included in the Report

Mr Maake asked if the report could only be adopted by Members that attended the oversight visit.

The Chairperson said all Members were eligible to adopt the Report.  

The Report stood over to allow Members to make inputs to the Report and for the Committee staff to effect amendments.

The meeting was adjourned.