Judges and Magistrates salaries; International Treaties with Republic of Bangladesh; Cybercrimes Bill proposed amendments: with Deputy Minister

Meeting report

Consideration of draft notice on Judges and Magistrates salaries

The Chairperson welcomed the Committee members to the meeting and acknowledged the presence of the Deputy Minister. She steered the Committee to the first item on the agenda, approving or rejecting the draft notice determining the salaries, allowances and benefits of magistrates and constitutional court judges annually.

These amendments occur annually and are in line with section 12 (3) of the Magistrates Act and the Judges Remuneration and Conditions of Employment Act. She reminded the Committee that there is a strict timeline with making the decision, because the salary increases must be financed by the financial year budget ending 30 March 2020.

The Chairperson mentioned that she has received letters from the President of the Association of Regional Magistrates of Southern Africa (AMSA) and Chief Magistrate Chris Barnard who both raised issues about the draft notice.

The Chairperson requested that the Deputy Minister to also address these concerns in his remarks.

Deputy Minister Remarks

Mr John Jeffery, Deputy Minister of Justice and Constitutional Development, reminded the Committee that this draft notice comes from the executive branch and not from the Department of Justice and Constitutional Development. Prior to the law change in the early 2000s the executive branch set the salaries of judges and the Department of Justice and Constitutional Development (DoJ&CD) set salaries for magistrates. To uphold the independence of the judiciary, the law was changed. Now the Independent Commission for the Remuneration of Public Office Bearers performs this task and also make salary increase recommendations for judges and magistrates.

The procedure is for the President to make the determination after considering the recommendations. This will be implemented once it has the backing by both houses of Parliament. The Commission was late in publishing their recommendations and only gazetted them on 13 February 2020.

The Commission recommended a 3 % increase for all categories of public officials who receive a salary of over 1.5 million rand, and a 4 % increase for those receiving less than 1.5 million rand. Due to the countries poorly performing economy, President Ramaphosa, in consultation with Finance Minister Tito Mboweni, determined that:

• Public officials earning under R1 million per annum should get a 4.5% salary increase.
• Public officials earning between R1 million and R1.5 million per annum should get a 2.8 % increase.
• Public officials earning more than R1.5 million will not receive an increase.

For District Magistrates, this means they would receive the 4.5% salary increase (as they make below R1 million per year). Senior, Chief and Regional Magistrates, along with Regional Court Presidents have earnings over R1 million per year and will get a 2.8% salary increase. Judges would receive no increase as they earn over R1.5 million annually.

This is the determination the DoJ&CD is asking the Committee to approve. The Deputy Minister acknowledged the discontent voiced by ARMSA. ARMSA is saying that it will likely take this decision on judicial review. It also claims that judges have not received a salary increase for 3 years. This is false as judges had salary increases in 2019 and 2018. The details of this are in the Commission’s report.

Deputy Minister Jeffrey reiterated that there is urgency to get this draft notice approved as the magistrates need to be paid from the financial year ending 30 March 2020.

Discussion

Mr A Gxoyiya (ANC, Northern Cape) says it would be poorly advised for ARMSA to take the salary draft notice from the President on judicial review.

Mr T Dodovu (ANC, North West) says that while he agrees that the Committee must accept the draft notice on the salaries, it is not fair for the deliberation process on it to be rushed. In his view, this is a form of ‘malicious compliance’ whereby the Committee is forced to accept the proposal due to urgency to get it published before the end of the month. Personally, he had a big problem with the salary structures in all arms of government – whether it be MPs, cabinet ministers, municipalities, chiefs, kings or judicial officers. He suggested the at the Committee organise a session soon where the structure of the salaries can be discussed in detail so that the Committee can be satisfied in its decision

Ms Z Ncitha (ANC, Eastern Cape) echoed Mr Dodovu’s sentiments and added that it was problematic to rush these deliberative processes when it affects so many people. The Committee needed more time so that it can apply its mind to the issue. While she appreciated that the country is in recession, she did not agree that the Committee must just follow orders from above [the executive]. Instead, the Committee must debate these matters and conclude for themselves and “not at gunpoint”. She adds that we live in a democracy and must appreciate how we arrive at our decisions.

The Chairperson agrees that the Committee is responsible for the remuneration of magistrates and judges and that it would be productive to have a meeting with the Remuneration Commission in this regard.

The Chairperson said that she had investigated how the Commission functioned in the past and noted that its recommendations are usually published much further in advance, usually in November.

Draft Notice on Magistrates Salaries

No objections are raised in response to the draft notice on magistrate salaries. Mr Gxoyiya moves for the adoption of the submission, Mr Dodovu seconds. The draft notice on magistrate salaries is accepted with no objection.

Draft Notice on Judges Salaries

No objections are raised in response to the draft notice on judges’ salaries. Mr Gxoyiya moves for the adoption of the submission, Mr Dodovu seconds. The draft notice on magistrate judges is accepted with no objection.

Presentation on the Mutual Legal Assistance on Criminal Matters Treaty & Extradition Treaty with Republic of Bangladesh

The Chairperson clarifies some of the issues raised at the previous Committee meeting on 12 February 2020, where these two treaties were supposed to be discussed. She explained that the Committee had voiced concern that none of the executive members from the DoJ were here to present the treaty. However, she had followed up on the matter and found that it was not the precedent for the Minister or Deputy Minister to be present for the presentation of such treaties to this Committee. The Chairperson apologises to the Deputy Minister for the misunderstanding.

Deputy Minister Jeffrey explained that establishing bilateral extradition treaties with countries make the process of extradition much easier. The Mutual Legal Assistance on Criminal Matters Treaty streamlined criminal investigation where the two countries are involved and allows for easier cooperation or sharing of information between the two countries.

Mr Herman van Heerden, Principal State Law Adviser, Department of Justice and Constitutional Development, was responsible for the negotiation of these treaties and proceeded to give a presentation on the treaties.

Due to the technical nature of the treaty, Mr van Heerden had compiled a summary of the key features of the treaty. The overall objective of the treaty is to underscore the fact that South Africa will not be a haven for criminals and is committed to the prevention, investigation and prosecution of crime. This treaty was initiated in 2017. In February 2019, the Bangladesh High Commission signalled their agreement with the treaty. The treaty was approved by the Department of International Relations and Cooperation (DIRCO) and the President, who authorised the DoJ&CD to sign the treaty on behalf of the South African government. The treaty was then signed in Dhaka, Bangladesh in October 2019. They require approval from this committee to proceed with the two treaties’ ratification.

Mr van Heerden explained that under South Africa’s Extradition Act, the country can authorise (with permission of the President) extradition orders without a bilateral treaty in place. Similarly, under the International Cooperation in Criminal Matters Act, South Africa can provide mutual legal assistance to other countries without a bilateral mutual legal assistance treaty. So why are these two treaties necessary? This is because there is a large Bangladeshi community in South Africa and there are often extradition and legal assistance requests from the Bangladesh government. These treaties make the processes involved a lot smoother and explained how to navigate the bureaucratic process involved in extradition and mutual legal assistance on criminal matters.

Discussion

Mr G Michalakis (DA, Free State) queried the capital punishment, detaining without trial and torture clause in the treaty – he assumed these clauses are standard in these types of treaties but asked if there are cases where a country that South Africa has dealt with that did not uphold these rules.

Mr Dodovu wanted to know what the rationale is of going through the effort of drawing up a treaty like this with Bangladesh. Are there certain instances that have necessitated this treaty?

The Chairperson raises a similar concern to Mr Michalakis – how does the treaty operate to uphold our local laws when Bangladesh has the death penalty?   How is that reconciled? She also asks Mr van Heerden to elaborate on the ‘retrospective action’ clause in the Mutual Legal Assistance treaty – what does that mean and how does it work?           

Mr van Heerden replied that there have not been cases where a country did not honour the terms of an extradition order. However, there have been cases where a country refused to grant an undertaking order. There is new extradition bill in the works which deals with extra-territorial jurisdiction that will allow SA to prosecute a crime in a foreign state if necessary. So, while there are cases of foreign states refusing to grant undertakings, it will have repercussions for them in terms of international relations, issuing negative signals to other countries about their credibility. Therefore, they are generally dissuaded from refusing to grant undertakings.

Mr van Heerden explained that this treaty is precautionary, as there is a large Bangladesh community in SA, and we do not want SA to be a haven for criminals. This treaty will also make the extradition and mutual legal assistance process much more streamlined.

Mr van Heerden explained that ‘retrospective application’ refers to crimes committed prior to the treaty’s ratification. This provision of the treaty will therefore ensure that even those crimes can be prosecuted under the terms of the treaty once it is ratified.

The Deputy Minister mentioned that another treaty has been tabled with Mexico, which will also, along the same lines of this treaty, make extradition and mutual legal assistance more streamlined. The concerns around undertakings were also raised in the National Assembly. It was important to note that these actions would have international trade repercussions and ramifications with the United Nations. There were problems in Botswana in the past, where undertakings were not granted. In such cases the new extradition bill, in the works, will help address that issue.

The Deputy Minister made a key distinction that the extradition undertakings in countries (like Bangladesh) that have the death penalty, does not change their sentence; that would be infringing on the country’s judicial sovereignty. However, the understanding is that if the person is sentenced to death, they will not be executed, as the order to kill lies with the executive power of the country. 

Mr Gxoyiya enquired about the time frame for these extradition orders; what recourse do we have if South Africa issues an extradition request but that request is delayed on the Bangladeshi side? Furthermore, who determines whether an offence is extraditable? Are there measures in place to prohibit extradition attempts based on racial, gender or other types of discrimination?

Mr van Heerden replied that when SA received an extradition request, it is submitted to the Minister of Justice and then goes to a Magistrate. This is where the individual is judged as extraditable or not. If there are issues of discrimination, it will be flagged by these various gatekeepers. Regarding the timeline of extradition requests, Mr van Heerden said that it is very difficult to standardise. The request must go through all the necessary diplomatic channels from South Africa’s side. Once it is handed over to another government, it is effectively out of South Africa’s control as it needs to follow the foreign country’s diplomatic processes.

Treaty on Mutual Legal Assistance on Criminal Matters with the Republic of Bangladesh

No objections are raised in response to the treaty on Mutual Legal Assistance on Criminal Matters with the Republic of Bangladesh. Mr Dodovu moved for the adoption of the treat. Mr S Mfayela (IFP; Kwazulu-Natal) seconded the motion. The Mutual Legal Assistance on Criminal Matters treaty with the Republic of Bangladesh was accepted with no objection.

ExtraditionTreaty with the Republic of Bangladesh

No objections are raised in response to the extradition treaty with the Republic of Bangladesh. Mr Dodovu moved for the adoption of the treaty. The treaty was seconded and accepted with no objection.

Report on proposed amendments to the Cybercrimes Bill B6B-2017

The Chairperson explains that the Committee has been guided through almost half of the bill already.  In terms of today’s process, she requests the department to deliver a presentation on the proposed amendments to the Bill.

The Chairperson asks that the department keep the presentation to 25 minutes.

The Deputy Minister mentions that there are representatives of the South African Police Service (SAPS) present in the meeting today. They have been working closely with Mr Robbertse on the amendments and have indicated that they are happy with the proposed amendments so far as it affects them. The NPA, although not present today, are also satisfied with the amendments.

Advocate Sarel Robbertse, Senior State Law Adviser, DoJ&CD, proceeded with his presentation which discusses the proposed amendments on the Cybercrimes bill. These amendments were submitted by the National Prosecuting Authority (NPA) and some are submissions from the Common Responses documents. The amendments include both technical and substantive changes.

View: Annexure C Amendments Proposed to the Cybercrimes Bill

Discussion

Mr Michalakis commended Mr Robbertse on the work he has done on the bill. However, he voiced concern about the amendments to clause 32 and 33 in the bill, which, he believed, afforded too much discretionary power to the police service.

Mr Mthethwa was also concerned about the power afforded to standard police officers. He argued that the scope allowed under Chapter 4 of the bill, especially clauses 24.2, 32 and 44.1, are powers better suited to institutions like the South African Revenue Service (SARS) than standard police officers. He asked how these powers will be monitored, what oversight there is and if they can perform these functions without approval from higher authority?

The Chairperson asks whether Mr Robbertse believed that the changes proposed, insofar as they address issues of gender and deal with gender discrimination, will prove effective. Furthermore, she asks what the cost implications will be and how to deal with electronic communication service providers under Clause 40’s ‘preservation order’.

The Deputy Minister replied that clauses with language using binary genders (male/female) were amended to accommodate and extend to non-binary gender identities and transgender individuals, whether they be female bodied, male bodied or transgendered persons.

In terms of Clause 40, Mr Robbertse provided some context. Electronic Communication Service Providers (ESPs), for example, mobile cellular and internet service providers must be compliant in terms of the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA). ESPs will not be issued an operating licence otherwise. In terms of section 30 of RICA, the Minister of Communication may issue a directive to ESPs. However, that directive does not compel ESPs to collect call related information. Mr Robbertse stated that he had drafted a directive that would require this type of call data collection from ESPs. He could ask the Department of Communications to promote this directive. However, in the interim it is more practical for ESPs to collect call data on a case by case basis. This leaves ESPs with two options; either comply with the RICA directive or comply with the Cybercrimes bill. If ESPs opt for the first option, it will be a very costly process as collecting all that data can run “into hundreds of terabytes per day”

Regarding the view by some ESPs that these procedures which require them to store intercepted information will entail additional costs, Mr Robbertse believed this was incorrect. If there is mutual legal assistance, this process is already in the RICA rules and law enforcement agencies will simply collect the data and hand it over to the relevant authorities.

On Clauses 32 and 33 - the additional powers awarded to police – Mr Robbertse explained that emergency and/or time-sensitive circumstances require expediency. For instance, if someone went missing and the police had their cell phone, it would take too long to authorise a warrant to access this phone data. The bill only allows police to access this type of sensitive data in emergency situations. Within the bill, additional safeguards are built in. In Clause 36 there is criteria for how police must deal with search and seizure as explicated in Clause 32 and 33. If unauthorised search and seizure is conducted, the police official will be in contravention of clause 37 and there will then be criminal consequences. Furthermore, if a police officer without the relevant authority accesses this information, they are acting in violation of the Cybercrimes Bill. Courts can also hold police officers accountable if injuries are suffered.

Mr Robbertse further explained that Clause 44.1 dealt with orders where the police official can approach a judicial officer and request the judicial officer to issue a directive whereby a person ordered to preserve data must provide that data to the police official. This procedure does away with the intrusive nature of a search and seizure operation. In terms of Clause 41, expedited preservation of evidence may be issued by a police official and can only be extended once, (under clause 42) to a maximum of 90 days. The person preserving that data may not give that data to police unless they have a directive in terms of section 44. With respect to clauses 32 and 33, there is no margin for police to act without authority.

The Chairperson said that this was not the end of deliberation on this bill and the Committee will be engaging with it further. She thanked the Deputy Minister and his colleagues for their attendance and presentation, as well as SAPS and NPA for their amendment submissions to the bill. The Committee will have its legal team look over the bill and engage with the DoJ&CD where necessary.

The Deputy Minister encouraged members of the Committee to read the submissions provided and submit any questions to Mr Robbertse via the Committee’s legal team.

The meeting was adjourned.