IPID Executive Director’s Extension of Contract: submissions from parties; Critical Infrastructure Bill: adoption

Meeting report

Critical Infrastructure Protection Bill

Mr Milton Ntwana, CSPS Director: Legislation, presented the Committee with proposals made by the Select Committee on the Bill. It was first noted the researcher of the Committee proposed the definition of “cyber response committee” be deleted and the definition of “infrastructure” be amended.

In terms of process of the Select Committee, the CSPS met with the Select Committee from September 2018 to end of November 2018. The Department is in agreement with proposals emanating from the deliberation of the Select Committee.

On clause 7, functions of Critical Infrastructure Council, there was an anomaly in terms of the frequency of reporting by the Critical Infrastructure Council to the Minster and the Minister to Parliament. Deliberations were held on frequency of reporting by both by the Critical Infrastructure Council and the Minister. The Select Committee suggested that instead of the Critical Infrastructure Council submitting an annual report to the Minister, within three months, after the end of each financial year, the Council should be reporting to the Minster on a biannual basis.

On clauses 11 – 12, consequential cross-referencing resulted in changes to clause 11 (1) (b) on 30 October 2018, the Department of Justice presented a radically amended version of the Cybercrimes and Cybersecurity Bill to the Portfolio Committee on Justice and Correctional Services. As a result of developments in the Cybercrimes and Cybersecurity Bill by the removal of provisions relating to cybersecurity, clause 12 (8) of the Bill are proposed to be deleted.

On clause 17, the biggest shift is the removal of provisions relating to cybersecurity. As a result of amendments effected by the Cybercrimes and Cybersecurity Bill processed by the Department of Justice, it has been agreed at the Select Committee that clause 17 (4) should be deleted. As a result of deletion of subsection 4, consequential amendment of the numbering of the subsection was effected.

On clause 20, powers of the Minister to declare infrastructure as critical infrastructure, as mentioned, the Select Committee proposed reference to cybersecurity must be deleted. As a result, clause 20 (4) – (6), that provided for the Minister of Police to consult with the Minister responsible for State Security on infrastructure partly consisting of information and communication infrastructure, must be deleted.

On clause 27, regulations, before the Minister promulgates any regulation, proposed regulations must be published in the Gazette for public comment. The Bill adopted by the National Assembly provided that the Minister must also table draft regulations in Parliament for scrutiny before promulgation. Discussions were held in the Select Committee about the word “scrutiny”. It was submitted that the power to make regulations vests with the Minister. It was agreed that it would be sufficient for the Minister to table the regulations for notification. The Select Committee proposed the word “scrutiny” be substituted by “notification”. However the Portfolio Committee prefers the word “scrutiny” remain.

With clause 30, transitional arrangements, (9) reads “In the event that no legislation on cybersecurity is in operation when this Act comes into operation, the Minister must, in consultation with the Cabinet member responsible for Sate Security, determine interim guidelines on the manner in which an application contemplated in section 17 (4) must be dealt with by any person performing a function in term of this Act” – it is proposed this subsection be deleted as a result of the proposal that was agreed to that all clauses referring to cybersecurity should be deleted.

Brig. Bert Van der Walt, SAPS Legal Advisor, took Members through the C version of the Bill which listed amendments adopted by the Select Committee.

Discussion

Ms D Kohler Barnard (DA) referred to clause 4 which said the relevant civilians have to be “preferably appropriately qualified, knowledgeable and experienced in fields...” She thought the word “preferably” would allow for inclusion of people with no qualifications or knowledge on the subject at all. Surely these people must be appropriately qualified and knowledgeable.  She was concerned about this.

The Chairperson reminded the Member the onus lies with Parliament and Portfolio Committee on Police for appointing these civilian members. The Committee must ensure capabilities and expertise of appointed members are sufficient

Ms A Molebatsi (ANC) thought it was agreed the word “scrutiny” would be deleted but she saw it would now be substituted with “notification”. 

The Chairperson clarified it was actually the other way around – the Portfolio Committee supported “scrutiny” to allow for proper oversight.

Mr Z Mbhele (DA) asked if it would not be wise to retain the clause in the transitional arrangements which referenced cybercrimes and cybersecurity to allow for explicit guidelines between the ministries should the Cybercrimes and Cybersecurity Bill not be operational yet. Without this, there would be a complete gap and no explicit provision for this legislation to enable and facilitate covering cybersecurity matters.

Mr L Ramatlakane (ANC) was pleased the presentation made reference to “radically amended version of the Cybercrimes and Cybersecurity Bill” – this made him question the need for provisions on cybersecurity in the transitional arrangements. He was concerned such provision would have to be explained in the event the explicit provision was not there. He did not doubt that what was before the Portfolio Committee on Justice would not materialise. He thought the addition proposed by Mr Mbhele to the transitional arrangements might prove to be superfluous.

Ms Kohler Barnard understood completely that the Portfolio Committee on Justice was working on a Bill that would talk to that but there is no certainty of the date the Bill will be adopted or assented to by the President. In effect , any oversight of cybercrime by the police will be removed until the Bill is signed – one knows that Bills can remain in process for many years. This would leave an absolute void and vacuum while the Committee on Justice still processes the Cybercrimes Bill. What would happen in the meantime? She supported the idea of a provision in the transitional arrangements to cover cybercrimes matters until such time as the Cybercrimes Bill is passed. SAPS would be put in an awkward position to stop doing its work in this area.

The Chairperson wished Members raised these concerns earlier in the processing of the Bill.

Brig. Van der Walt thought the Members’ questions were very pertinent. One must keep in mind the State Security Agency (SSA) would also have a representative on the Critical Infrastructure Council. Clause 12 allows for establishment of ad hoc committees by the National Commissioner. Currently there is such committee between SSA and the SA Police Service (SAPS) to deal with these matters on an operational level. There will also be provision for that committee to function when the regulations are drafted. He had extensive discussions with the law advisor on the Cybercrimes and Cybersecurity Bill and several options are available – one is to include all references to cybersecurity however this is not the function of the police so it is not a viable option. Another option is to remove references in the Critical Infrastructure Protection Bill but have transitional provisions to link the Critical Infrastructure Protection Bill in the Cybercrimes and Cybersecurity Bill i.e. the other way around to what Mr Mbhele proposed. The Department of Justice is aware of this and the police would participate in drafting of that Bill.

Brig. Van der Walt said the appointment of candidates will have to go through the Committee before they are recommended to the Minister. It could be trusted that Parliament would not allow the appointment of, for example, family members who do not have jobs – these people would not come through the system easily. “Preferable” denotes a preference for a qualification. There may however be civil society members which are qualified in other fields but could make a contribution to the committee.

The Chairperson added that during deliberations, Members were explicit that members of civil society organisations and advocacy groups should not be excluded – making the provision too specific would exclude this category of persons.

There was consensus by the Committee to move to the D version of the Bill.

Clause-by-clause consideration and adoption

The Committee adopted each clause of the Bill.

The Committee then adopted the Bill as a whole.

Committee Report on Adoption of the Critical Infrastructure Protection Bill

The Committee adopted its Report on the Bill without amendment.

The Chairperson thanked the Members, Department, civil society and all participants for their contribution to the processing of the Bill. The Bill will now head to the National Assembly.

Speaker’s Referral on Contract Extension of the IPID Executive Director

The Chairperson addressed the Committee’s programme – as discussed last week, the deadline is 28 February 2019 to deal with this matter in terms of the order of the North Gauteng High Court. Today the Committee would look at the various written submissions and which additional documents will be required. The Committee will need to utilise every available day until the 28th. The Committee applied to meet on Monday, usually a constituency day, 25 February 2019, to the Chief Whip and House Chairperson and the permission was granted. The Committee would meet on Monday from 10h00 onwards until deliberations and discussions are complete. On Tuesday, 26 February 2019, if more time is needed, the Committee will sit close to the chamber so that if Members are needed for voting they would easily be able to do so. This could be done on Wednesday, 27 February 2019, too. All day Tuesday and Wednesday would be utilised. Some of the items on the Committee’s programme fell off due to this urgent matter but one item was returned to the programme, namely, a briefing from the Directorate of Priority Crime Investigation (DPCI) on high-profile cases – this would take place on 6 March 2019. The Committee was also requested to participate in a joint meeting with the Standing Committee on Finance on illicit financial flows on 19 March 2019. However, on that day, the Committee is due to receive a briefing from SAPS on preparations for the general elections. The Committee also needs to deal with the Regulation of Gatherings (Private Member’s) Amendment Bill.  The Committee has requested additional information on court cases in reference to the main thrust of the Bill – this has been distributed. The Committee will deal with the motion of desirability on the Bill as soon as it finds the time. This might even be next week. Sometime in March, the Committee would also be briefed on the turnaround of personnel in Crime Intelligence.

Ms Kohler Barnard asked that the start time for Tuesday’s meeting (26 February 2019) be bumped up from 10h00 to 09h00.

The Committee agreed.

The Chairperson outlined the Committee received the reasons from the Minister of Police as to his decision not to renew the contract of the Executive Director of the Independent Police Investigative Directorate (IPID), Mr Robert McBride, input from friends of the court and the response from the Executive Director. It is important that all Members receive these submissions. Members were provided with the electronic copies and today received the hard copies. He emphasised it is important the process is procedurally and substantially fair. Members participating in the process must have all the documents and ample time to study them.  Any additional information required from relevant role-players must be made known by Members so that they can be requested and provided before the close of business today. Members can then study the additional documents over the weekend.

Turning to the bundle of documents, Members should have received:

-Committee programme with the additional meeting of Monday, 25 February 2019

-Referral from the Speaker

-Correspondence from the Minister to the Speaker

-Correspondence from Mr McBride to the Speaker

-Copy of the draft order of the North Gauteng High Court

-Response of the Minister to the Committee, with annexures

-Response of Mr McBride to the Chairperson

-Input from the Helen Suzman Foundation and Corruption Watch

-Contract of employment

-Copy of the National Assembly Rules on Committees

-Glenister vs. President and McBride vs. Minister of Police

-IPID Act

-Public Service Act

Ms Kohler Barnard asked if Members would receive a copy of the rebuttal of Mr McBride to the various allegations against him which are now being flung around all over the media. The Committee is watching the rendition matter all over again.

The Chairperson said the main response from Mr McBride was received but Members still required hard copies of the annexures. Looking at the Rules of the National Assembly, rule 227 would be the main focus but general powers under rule 167 would also come into play. The referral from the Speaker was clear in that the Committee must consider the matter and produce a report on it.

Mr Mbhele pointed out the error that Members received copies of the IPID Act regulations instead of the Act itself.

The Committee Secretariat was asked to immediately provide copies of the correct Act.

The Chairperson thanked the Helen Suzman Foundation and Corruption Watch for their submissions received on time. It is clear the Helen Suzman Foundation takes a different stance to the order made by the court. The Foundation is of the view the Portfolio Committee on Police cannot deal with the matter. The conclusion of the submission said any decision taken by the Committee would be unlawful and vulnerable to challenge on review. The Foundation says the only constitutionally compliant interpretation of the IPID Act is one where Mr McBride’s term of office would be extended on the basis that he requested a renewal – it is said the appointment or removal of the Executive Director of IPID has no bearing on the Committee. The Foundation intends appealing the court order and says that until the appeal is finalised, all interim parties are requested to adhere to the following interim regime: the Portfolio Committee is prevented from deciding on Mr McBride’s term of office, the Minister is prevented from appointing a new acting Executive Director, the Minister is prevented from appointing a new Executive Director and Mr McBride remains in office until the appeal is finalised. It said the order of the court is suspended if an appeal process is underway.

The Chairperson said the Committee received legal advice that the court order is in place and there is an official referral from the Speaker. It is important this be put on record.

Ms Kohler Barnard asked if the Committee needs to compile a report by 28 February 2019 speaking to procedures it has undertaken or if the final decision needs to be reached by 28 February.

The Chairperson explained that in terms of the court order, the Committee must submit an affidavit on its progress and activities of the Committee must be finalised by 28 February 2018 i.e. its report.

Mr Ramatlakane confessed when he read the Helen Suzman Foundation submission late last night, he thought he was misreading because it is quite bizarre and seems to say only the view of the Foundation is correct and the court is wrong. The Committee has been directed to explain its processes on the matter to the court. The Helen Suzman Foundation is of the opinion that the Committee should not do anything and has no jurisdiction over the matter – this is despite the matter being formally referred to the Committee. The Committee is not bound by the submission of the Foundation but by the Rules of the House and the draft court order. He suggested the Committee note the views of the Foundation but not agree with it and instead continue in line with the Committee’s programme. 

Mr Mbhele pointed out the difficulty with the matter, since it surfaced with the Minister’s correspondence to Mr McBride indicating his contract would not be renewed, is the fact that the IPID Act is not clear on the procedure for renewal of the contract of Executive Director – the Act only speaks to appointments, and as amended, removal. This creates ambivalence around the uncertainty of the role of the Portfolio Committee as it is not laid out clearly. The argument can be made that the role of the Committee in confirming or rejecting the appointment can be extended as it applies to renewal. He understood what the Helen Suzman Foundation was speaking to in terms of principle and ensuring optimal independence and integrity of the position of Executive Director. This raises questions around the proposed course of action going forward. He reemphasised the point made in the Committee’s meeting last week Thursday that because the matter is open to legal review, as the Helen Suzman Foundation point out, the process of the Committee in rationality, procedural integrity and substantive deliberation, must be absolutely on point – the Committee cannot run the risk of opening itself up to be party to litigation which would leave the Committee with egg on its face. While some Members are sticklers for the deadline of 28 February 2019, there is provision in the court order for the Committee to submit if it requires further time according to its determination. He suspected it may get to this.

The Chairperson agreed. The approach of the Committee is that everything must be procedurally correct and there must be substantive consideration. All parties must have the opportunity to respond and there must be ample consideration of all matters – this is quite critical. The submission of Corruption Watch makes useful and valuable points on process.

Considering the gravity of the matter and the various people being phoned to support certain areas or not, Ms Kohler Barnard suggested the Committee researchers be asked to draw up a document which provides summaries of the input of each submission and possible ramifications concerning court cases. This would allow for easy comparison.

The Chairperson said there are court summaries in terms of the case law.

Mr Ramatlakane urged that Members cross the bridge when they get to it in terms of possibly not meeting the deadline of 28 February 2019.  There will be flexibility in the decision to request an extension should it be required. He was hesitant to support the idea of the Committee researchers using their own views to decide what to summarise for Members. The Committee should read the inputs and deal with the documents itself. Such a summary could leave out aspects which may be important. It is upon Members to sink their teeth into this information and not leave it up to others as important information could be omitted.

Ms Molebatsi asked Members to relax and give the process time to unfold. A situation of panic should be avoided where Members are already declaring their desires of the outcome.

Ms L Mabija (ANC) emphasised Members should not cross the bridge before they get there. The Committee must use what is before it to make a sound decision. The nitty gritty will come after the Committee has considered everything and done everything it is expected to. She was of the view that no extension would be required. Matters raised by Mr Mbhele on the IPID Act should have been raised long ago.

Ms Kohler Barnard said a lesser person might have found what Mr Ramatlakane said extremely patronising although she was sure he did not mean it that way. The Committee has the best researchers in Parliament – they have led the Committee through legislation and difficult times and have never slipped up once. To suggest they may take a decision to leave certain matters out of a research document is extremely insulting. Because the researchers could not stick up for themselves, the Member said she would do it. She asked that the researchers, who frankly worked a lot harder than Members did, be shown some respect. She would prepare her own documents as she always did and has done for the past 15 years.

Mr Ramatlakane indicated his suggestion was not made to attack the researchers so Ms Kohler Barnard should not put words into his mouth. His point was that this was not the job of the researchers as the matters under contemplation should be fully considered by Members.

The Chairperson highlighted the input from Corruption Watch which said “the Portfolio Committee is constitutionally and legislatively obligated to determine the renewal of the incumbent’s post by 28 February 2019. Failure to do so will mean the Portfolio Committee has defaulted on its oversight duties”. It is critical that Members work together on the core business. In terms of taking the process forward, it is important to remember the Committee is not the rubberstamp of the Executive, any department or any lobby group. With the relevant documents, it is incumbent on Members to decide additional information required. The input from Corruption Watch is well crafted and there are some suggestions Members can look at– the input said “in applying its collective mind in deciding whether or not to renew the contract of Mr McBride, the Portfolio Committee must give due consideration to the following: the performance of the Executive Director as Accounting Officer of IPID over the last five years, performance of IPID under the leadership of the incumbent, various tasks, advantages and disadvantages associated with renewal of the contract  and meetings and resolutions of the Portfolio Committee”. The Committee is not restricted in only looking at the documents currently before it as it has a duty to take a wider view of the scope of its work. All relevant factors and sources must be looked at. The Committee is not a rubberstamp of the Executive, department or any lobby group. He asked if Members could suggest any further documents or information they wanted to request from the related parties – this could be received by 17h00 today for consideration during the Committee’s deliberations on Monday, 25 February 2019.

Ms Kohler Barnard questioned the implications of the Helen Suzman Foundation indicating it would be taking the matter on review.

The Chairperson repeated the legal advice the Committee received is that there is a court order in place where the applicant and first respondent are in agreement. The order also sets out a roadmap to deal with the process going forward – this is currently underway. There is also a formal referral from the Speaker tabled.

Mr Ramatlakane requested the Committee receive the report of the Auditor-General (AG) dealing with the IPID’s Annual Report. The briefing notes of the AG would also be required which dealt with matters of governance, leadership and financial management. The Committee will need copies of its Budgetary Review and Recommendation Reports (BRRR). Committee research work was done on the assessment of departments including IPID – this should also be made available. The Committee needs the latest security clearance of Mr McBride. The Minister, in his submission, says he reserves the rights to give additional information – the Minister should provide the Committee with this additional information in regard to this phrase as it spoke to management and accountability. The Committee would need copies of the applications made by Mr McBride to become the National Commissioner of Police, Head of Hawks and Head of Crime Intelligence. This would be the Z83 applications.

Ms Molebatsi requested a copy of the performance agreement of the Executive Director, copies of annual performance assessments of the Executive Director for the last five years, dates of annual performance assessments and copies of the outcomes of the annual performance assessments.

Mr Mbhele reminded the Committee that in an earlier version of its programme, it was supposed to receive a briefing from IPID, and others, to be updated on high-profile cases – such a briefing would speak to the more recent performance of the department. Copies of the presentation/briefing should form part of documents to consider.

Ms Kohler Barnard requested the letter from the Public Service Commission (PSC) and submissions made by IPID to the Commission. These are annexures to the primary submission.  

Mr Ramatlakane noted there were many attachments to the submission of Mr McBride including the PSC letter.

The Committee was informed that a written letter was also submitted by Mr P Mhlongo (EFF, Member of the Portfolio Committee). This would be made available to Members.

Mr Ramatlakane noted the opening paragraph of Mr McBride’s submission speaks to extreme time pressure to prepare responses. Perhaps due to this, the Committee should inform the relevant parties they can provide any supplementary information before the close of business today.

The Chairperson agreed noting it is important the relevant parties are aware they can bring any information to the attention of the Committee by the close of business today. This would be communicated to the parties. Members can then study the documents over the weekend.

Mr Ramatlakane noted there are sections in the submission of Mr McBride which makes a plea for the Committee to consider oral submissions by the interested parties. Considering time pressure the Committee faced to meet the deadline and all the documents before it to consider, National Assembly Rule 167 speaks to the Committee determining its own procedure and arrangements – in light of this the Committee should indicate it would not call for oral hearings by an relevant party given the conditions and deadline. The Committee would consider all physical documents.

Mr E Buthelezi (IFP) questioned if there would be any harm in considering oral submissions should the deadline be extended. Physical presentations might not provide all the answers required.

Mr Mbhele strongly disagreed with the proposal of Mr Ramatlakane – less than 20 minutes ago, Members agreed the process and outcome would not be preempted and would cross the bridge when they get to it after substantive and comprehensive consideration. Now there is a proposal for a very clear and concrete exclusion of a means to achieve this process – this is contradictory and would not fly. The Committee needs to follow the process step-by-step and do what needs to be done. Given the nature of parliamentary oversight, oral interaction is a key mechanism and is how Committees do their work – to exclude this does not make sense.

Ms Kohler Bernard agreed – oral submissions are part of the process and forms part of the Committee’s oversight work.  It is imperative that persons are present for the Members to question – who else would answer the questions Members have? It simply cannot be that Members simply get no answers to their questions.

Ms Mabija strongly supported the proposal to not allow oral submissions because the Committee cannot allow the process to face delays – oral submissions would delay the process. The physical documents are sufficient for the consideration of Members. The Committee is not a courtroom. The Committee does not work according to a mandate given by IPID.

Ms Molebatsi concurred with the proposal to not allow oral submissions.

Mr Buthelezi said that if there is a need, the Committee should allow oral submissions especially given that the parties indicated they prepared the written submissions under time pressure – both the Minister of Police and Mr McBride stated this. It was also agreed the Committee could apply to extend the deadline of 28 February 2019 should it be required. He did not see the harm in allowing oral submissions.

Mr Ramatlakane valued the point of crossing the bridge when the Committee gets to it. There is a difference between oral submissions and getting responses to the questions of Members – there should be provision and flexibility for the questions of Members to be answered. This is however different to making oral submissions.

The Chairperson suggested the Committee obtain an opinion from the legal section on the matter of only looking at written submissions. The opinion can be provided to the Committee on Monday.

Mr Ramatlakane agreed that this can assist with procedure because the Committee needs to avoid changing its procedure in the middle of the process. The procedure for the Committee to follow must be clear. Posing questions to be responded to is different to making an oral submission.

Ms Kohler Barnard indicated the stalemate is clear – three Members were in favour of oral submissions and three Members were against. The Committee absolutely needs legal advice because if it missteps even minutely, the matter could end up in court and come back to bite the Committee.

The Chairperson ruled the Committee would get legal advice in terms of Rule 167 and whether the Committee could stick to the route of considering only written submissions.  This would provide a neutral view.

The Committee agreed.

The Chairperson summarised the day noting that on Monday the Committee would receive the legal advice, receive the additional documents requested by Members and start with the deliberations. It is expected that Members will be fully au-fait with all matters on Monday to not result in any delays. The Committee would look at the various options and the broader matters as outlined in the Corruption Watch document.

Mr Ramatlakane asked if the hours of work per day were set in stone. He thought the Committee might have to work until late on Monday to minimise the hours for the days following. He was happy to work until midnight on Monday.

Mr Buthelezi was concerned about the effect of sitting for such long hours on productivity.

The Chairperson said he would seek permission to work extended hours on Monday. It is important that all hands are on deck to get the documents to Members.

The meeting was adjourned.