Information Regulator vacancy; Provisional suspension of Magistrate; Cybercrimes Bill: NCOP amendments– with Deputy Minister

Meeting report

The Chairperson said there was tight programme for the day. There would be load shedding in Cape Town which would affect some Members. The issue of Ms Bodlani would be presented first by the Magistrates Commission (MC). The presentation for this had been circulated a few days before and Members had gone through it.

He welcomed all present to the meeting. He said that Mr Henk Du Preez, State Law Adviser, from the Department had suffered a serious medical condition and the Committee wanted to wish him a speedy recovery. Mr Du Preez’s illness would have an effect on the presentation about the State Liability Bill that the Committee was supposed to receive on Friday 21 August but this would be discussed at the end of the meeting.

Mr John Jeffrey, Deputy Minister, Justice and Constitutional Development, said that the meeting was originally scheduled for 12.00pm but he had only discovered the change in time to 9.30 am the night before and had to inform officials accordingly. It was an issue with the administration of the Committee but this changing of meeting times was unfair even if it was a mistake. He said that he wanted to put this on the record.

The Chairperson asked for the Committee Secretary’s input on the concern raised.

The Committee Secretary said that that 12.00pm slot was originally allocated but it was indicated the Committee wanted to start earlier.

The Chairperson said that if there was a problem with the time slots, the Chairperson had to be advised instead of communicating with the Members before doing this. His understanding was that the slots were approved for the duration of the term and that was why the Committee received its programme before it was distributed to Members early to ensure that it got the slots it wanted. The Committee had indicated that it wanted the morning and afternoon slots therefore if there were any changes or problems the Chairperson had to be advised. He did not want to be ambushed by concerns that he was not aware of and not advised about.

Magistrate’s Commission presentation

Adv Cassim Ismail Moosa, Chairperson: Ethics Committee, MC, said that the matter before the Committee was the matter of provisional suspension the Acting Regional Magistrate Ms Koleka Bodlani from Umlazi.

The Chairperson interjected and advised that the MC had a maximum 10 minutes for the presentation as the Members had gone through the presentation before.

Adv Moosa continued that the purpose of the report was to inform Parliament of the provisional suspension of Ms Bodlani from office pending the outcome of an investigation on her fitness to hold office in terms of section 13(3) of the Magistrates Act. The background was that Ms Bodlani was a 59 year old Acting Regional Magistrate appointed to the office since 1996 and had been acting on the regional bench since 4 November 2013. She had 23 years of experience on the bench and during the course of her tenure on the regional bench at Umlazi numerous complaints were made relating to her performance and the manner in which she dealt with manners in the Sexual Offences Court.

He wanted to indicate at the outset that the matter before the Committee was two-fold. He wanted to draw Members attention to this aspect specifically: that the matter was simply a section 26 investigation in relation to the complaints made against Ms Bodlani, as contained in paragraph 3 of the discussion in the report provided to Parliament. The difference between the regulations were that regulation 26 dealt with misconduct and the regulation 27 investigation dealt with the allegations of her being unable to perform her duties. These were two separate processes and he wanted to respectfully draw the Members attention to the difference between these particular processes.

The first process involved regulation 26 where the allegations contained in paragraph 3.1 to 3.6 of the report were allegations of misconduct. This was what the MC was before the Committee about today - to ask that she be provisionally suspended from office pending investigation of her fitness to hold office.

The second part involved regulation 27, which he asked Members to perhaps take note of, was not why the MC was before Parliament today. This was an ongoing process in relation to the number of cases for special review in terms of section 304 of the Criminal Procedure Act.

Based on the allegations, due to time constraints, it could be noted that there were allegations of Ms Bodlani making herself guilty of sending out emails dealing with racial remarks, allegations of racism and favouritism.

In terms of the matters, Ms Bodlani dealt with after returning from leave, he said that she was not dealing with matters as she was supposed to have dealt with. She had allowed witnesses to be badgered by attorneys. The general conduct and complaints against her in terms of misconduct was that she was not conducting herself on the basis of what a magistrate is expected to conduct herself on. Therefore the MC had approached Parliament to suspend Ms Bodlani provisionally with immediate effect pending the outcome of the investigation into her fitness to hold office.

In respect to the second aspect of regulation 27, he asked Members to take note of the allegations, which were extremely serious. The matter was in the public domain relating to the fact that she had given highly inappropriate sentences upon accused persons convicted of sexual offences but this was a separate matter altogether.

To this extent, he directed the Members attention to paragraph 3.16 of the report which indicated the two separate processes. In the circumstances, he respectfully submitted that a proper case had been made out for the provisional suspension of office of Ms Bodlani and accordingly the MC respectfully requested that Parliament proceed to provisionally suspend Ms Bodlani. The regulation 27 matter was one that the MC would come before the Committee about at a later stage.

The regulation 26 investigation was resolved in 2019 and it was determined that the investigation be completed. The obvious question that had to be asked was why the matter took so long. He said that very simply put: at the same time when the regulation 26 investigation was instituted, at that point in time there were similarly allegations being made of the magistrate handing down inappropriate sentences. Therefore it was decided that after matters were sifted out, [they should be] sent on special review to the High Court to place before reviewing judges.

The two processes, the misconduct investigations as well as the matters on special review were running together and dovetailing with each other. In essence it was almost impossible and very difficult to distill the two matters separately. The investigators decided to deal with these matters of regulation 26 and 27 cumulatively in one package.

When it was decided, at the beginning of the year, to engage Ms Bodlani (as could be observed from the annexures attached to the report), she got hold of an attorney to write to the MC and perhaps delay the process. For a lengthy period of time Ms Bodlani had been off sick whenever the investigators wanted to deal with matters with her. She did not make herself available.

Unfortunately, the MC was overtaken by the Covid-19 pandemic hence there had been a delay which the MC understood and appreciated but now the matter was exactly where it was. In terms of any further address relating to the delays Mr Hans Meijer, MC, would provide further detail on the systemic delay and finalisation of the issue.

Discussion

The Chairperson asked Members for their comments.

Ms N Maseko-Jele (ANC) said that she appreciated the presentation and welcomed it. The question that she wanted to ask had already been answered by the chairperson of the MC. She was worried about why the issue had taken so long but that had been answered.

She asked why Ms Bodlani had been in an acting position for so long from 2013 up till today. This had to be noted and looked into.

Considering the importance of the matter, when one read about the responsibility given to the magistrate, who was dealing with issues of importance to the nation, the sentences Ms Bodlani had given to culprits was very worrisome.

She said that she supported the suspension of Ms Bodlani.

Mr W Horn (DA) said that he might have connectivity challenges due to scheduled load shedding. He asked the MC about some of the media reports on the matter which he did not know if were accurate. The media reports suggested that there were complaints of improper judicial conduct on the part of Ms Bodlani as far back as 2010-2012 prior to when she was appointed as an acting magistrate in the regional court.

He wanted to know if this could be confirmed by the MC and if this was the case the concern had to be raised why there were not proper systems in place at the time to prevent a magistrate with such complaints against them to be promoted to a position in a higher court.

On Ms Bodlani’s long acting period, he said that the he understood that the functionary in the executive who had dealt with this was not in office anymore but at some stage the Committee had to have oversight on whether all the relevant information was placed before decision makers, when acting periods were extended or renewed.

As Ms Maseko-Jele had raised in respect of Gender Based Violence (GBV) and the fight against it, he said that it had to broadly be of a concern as there were other cases of magistrates who were not always sensitive enough to both victims and on the other hand who saw their roles as mediators between parties in respect of complaints of GBV.

At some stage the Committee had to look into what programmes the MC or the different forums that trained magistrates could provide to at least ensure that all magistrates dealt with these matters in a uniform and serious matter.

Mr R Dyantyi (ANC) said that he wanted to raise three issues. He supported the suspension as Ms Maseko-Jele had. He said that the process had to be completed and not be interfered with. He supported what was tabled. He did not want the Committee to forget that as much as one supported this, in the last two sessions with Adv Moosa the Committee had raised concern emphatically about the systemic issues in the MC in relation to these issues. The Committee made this point and went further to request the chairperson of the MC to come forward and present what the systemic issues were, because it had become clear that the box of suspension could not just be ticked as there was much deeper issues that had to be understood and addressed.

This matter was outstanding from his perspective and there was no word on when this would happen. He wanted to remind Members and the MC that this point had been made before and there had to been an indication when the MC would present. The Committee could not just make decisions when there was not a reflection made on this critical issue raised previously. There had to be a full discussion on this so that the entire picture could be reviewed and not only pieces of the problem concerning magistrates.

He said that there was a trend where Black people were suspended and wanted to know what was really happening. He wanted to put this to the Minister.

Adv H Mohamad (ANC) said that he had been largely covered by the previous speakers. The African National Congress (ANC) supported the provisional suspension of Ms Bodlani especially in the light of all the reviews that could not be confirmed by the High Court.

Mr S Swart (ACDP) said that the African Christian Democratic Party (ACDP) also supported the provisional suspension and thanked Adv Moosa for his comprehensive input and documentation. He also believed that this was very important given the GBV issue the nation was facing.

He thanked Adv Moosa for the explanation about the delays but cautioned the MC, given the fact that there were already allegations of Ms Bodlani being off sick, that this could be a tactic to further delay the matter. One had to be aware that if she was ill that there had to be necessary medical certification. But one would like to see the matter completed as soon as possible.

Mr Swart asked to be excused as he had to attend another meeting.

The Chairperson excused Mr Swart and thanked him for his input.

Mr L Mpumlwana (ANC) said that the Committee was at a disadvantage as there was a basic principle of justice which was to hear the other side of the story, and that was absent. Everything was being prepared by the MC and the other side of the story was unknown. He said that he had personally investigated the matter and discovered that on the 4th of January 2019 a letter was written to the MC by Ms Bodlani complaining about racism that she had suffered. There had been no answer to the letter and this matter arose as a result of racist action against her. This was detailed but, he could provide the information..

She was removed from an office. Only one side of the story was heard and the Committee just had to “rubber stamp” every time. There was a lack of transformation in the MC and a lot [of transformation] was needed. He could provide the Committee with the details if wanted as he investigated the matter when he heard it in the news. He went to KwaZulu-Natal and investigated the whole story. What had been presented to the Committee was not a true story and the MC had never even interviewed Ms Bodlani. An investigator had been sent…

Mr Horn interjected and raised a point of order.

The Chairperson asked what the point of order was.

Mr Horn said that his view was that the Chairperson had to rule Mr Mpumlwana out of order as he was not following the rules of Parliament on how such matters were dealt with. Mr Mpumlwana wanted to introduce an investigation which he was not asked to do given that the MC was the lawfully appointed structure in terms of the constitutional framework dealing with matters of discipline of magistrates. He urged the Chairperson to rule that what Mr Mpumlwana was trying to present was ultra vires in nature and the Committee could not entertain it by way of him introducing it to the Committee.

The Chairperson said that he was going to make the point when Mr Mpumlwana had finished his presentation as a matter of way forward but it was a matter of debate and the Committee would not take it as a point of order. The Chairperson asked Mr Mpumlwana to conclude.

Mr Mpumlwana said that this was unfortunate because when the trend of magistrates that had been suspended by Parliament over the past few six years [was analysed] it was all Black Women. The truth had to be found. If he found that what was presented by the MC was not correct what was he supposed to do? He was a Member of Parliament and when a matter was brought to him that Parliament did not know about, was Parliament only supposed to hear from a structure which had been seen to be racist?

The truth of the matter was that in this particular case, it was not Ms Bodlani who made a racist statement but she had said that she had been discriminated against because she was Black. She was placed to serve in temporary structures without toilets in place of white women who stayed in that particular office of hers. This was why he said that there was more to this particular issue.

The Chairperson asked Mr Mpumlwana to conclude.

Mr Mpumlwana said that before the suspension was confirmed by the Committee, more information had to be given even if the MC was asked to interview Ms Bodlani. The Committee should not be a “rubber stamp” for what the Commission was saying but had to find out more information itself before making the suspension.

Ms J Mofokeng (ANC) gave thanks for the report. She said that she understood that it was a provisional suspension and it would be correct to say that the matter was still debatable. She supported the provisional suspension.

Considering the matter as presented, did this make the MC realise there were many other cases such as domestic violence that were treated like this by Magistrates. If this was the case would it consider cold cases being brought forward as raised by the President? Was the system ready for this because it was a fact that this was happening as there were not many convictions?

Was the Commission aware that the refusal of transcripts to the public created delays for matters to appear before it? Decisions taken by the MC had to be communicated as they were not communicated and therefore people complained it was not doing anything.

Deputy Minister’s response

The Deputy Minister said he was not aware of Mr Mpumlwana as a Member of the Committee but Mr Mpumlwana had been in the [Justice Portfolio Committee] of the previous Parliament. In response to Mr Mpumlwana he pointed out that Paragraph 37 of the report by the MC stated that Ms Bodlani was invited in January to show cause for why she should not be provisionally suspended. Her Attorneys, Rakesh Maharaj and Company, submitted a four page letter in that regard. He was not sure what the issue was regarding hearing her side of the issue.

On the issue of racism allegations, he said that this was in the report and the Commission could speak further on the matter. He was not sure if Mr Mpumlwana had read the review judgments relating to the sentences given and what was said by Ms Bodlani. He did not note issues relating to race in those review judgments.

The MC could explain the details but Ms Bodlani had already been provisionally suspended with salary which was done by the Minister and it was the duty of both houses of Parliament to confirm this while the investigation continued.

It was unfortunate for Members to cast aspersions on the Commission without the facts or details.

In response to Mr Dyantyi on suspensions, he said that Adv Moosa could perhaps explain. According to his understanding the Ministry was dependent on the MC for everything in order to protect the independence of the Magistrates. The Minister could not suspend someone summarily. It had to be recommendation from the MC. He was not sure if he understood correctly the issue Mr Dyantyi wanted to put to the Minister.

On Ms Bodlani’s acting position, he said that the officials could provide more detail but he wanted to explain it because things had changed a bit. Ms Bodlani was appointed as an acting regional magistrate on the recommendation of the then Minister Jeff Radebe and the Commission in November 2013.

The situation then was that although appointment was effectively on probation, they were effectively acting magistrates. There was meant to be a probation period in which performance was assessed followed by permanent employment. It was not a normal probation because in a normal probation the person could be dismissed if they did not perform.

Once the Minister had appointed an aspirant magistrate or probationary magistrate they could not be removed. Ms Bodlani had to continue in an acting position because there was not any basis for her not to be appointed. This situation had since changed as the probationary period was no longer there once the Minister made appointments. This was the reason for Ms Bodlani being in an acting position for a long period as her appointment was not confirmed due to these problems, and therefore she was still officially acting magistrate Bodlani. She was of a different status to an acting magistrate who just got appointed on a contract for a regular basis, as she was almost de facto permanent.

MC’s response

Adv Moosa said that the Deputy Minister had dealt the question about Ms Bodlani being in an acting position from 2013 and the question from Mr Horn on the long acting period.

In response to Mr Dyantyi, relating to systemic challenges he said that he would hand over to Mr Mohamad Dawood, Secretary of the Commission, to talk about the way forward and what had transpired.

He said that on the last occasion when the MC appeared before both the National Assembly (NA) and National Council of Provinces (NCOP) committees some of the systemic challenges had been dealt with. In relation to the points made the MC had engaged. Mr Dawood would perhaps give the Committee an update on the way forward.

Mr Dawood said that the matter was discussed at the last meeting and subsequently the matter was taken aside. A meeting had been scheduled for the executive committee to meet on 16 September to discuss how systemic issues would be addressed. After this, a resolution would be adopted by the executive committee and presented to the full Commission. He believed that this matter would be presented to Parliament shortly.

Adv Moosa, in response to Mr Mpumlwana and the investigation conducted by him, said that he wanted to give the Committee the utmost assurance that the MC did not operate on a racial agenda. Ms Bodlani was given a fair opportunity to respond to allegations contained in paragraph three of the report. Ms Bodlani engaged the services of an attorney and based on her response it was clear to the MC that the evidence was overwhelming and would call for a provisional suspension from office.

He gave Members the assurance that there were numerous checks and balances in place for this particular process. An investigator went out and collected information and thereafter a report was prepared. This report was then presented to the ethics committee which had ten members of different race groups. They dealt with the matter without a racist agenda. After the ethics committee’s decision was made it was sent to the full meeting of the MC that comprised 30 members minimum.

It was the full MC that then considered and interrogated the matter and thereafter endorsed the recommendation made by the ethics committee. Considering these circumstances he respectfully begged to differ from the substantive comments made by the Member in relation to there being a racist agenda. There were numerous checks and balances to ensure that the MC did its work without fear, favour or prejudice.

The Chairperson gave thanks and asked about Regional Court President, Mr Eric Nzimande, who had been suspended but according to him had not been through the disciplinary processes. He asked for a response before the matter was concluded.

Adv Moosa said he would hand over to Mr Meijer to respond.

Mr Meijer said the charge sheet had been served and Mr Nzimande had appointed a legal team to represent him at the inquiry. At the moment the MC was waiting for the investigators evidence in order to liaise with Mr Nzimande’s legal team to have a pre-trial conference. Ms Swart, the investigating officer, was still busy with the report in relation to other complaints of misconduct against Mr Nzimande and it would be filed by the end of October.

There was a possibility of additional charges against Mr Nzimande was indicated in the letter served with the charge sheet which also invited him to show cause why he should not be provisionally suspended. There was currently more than 30 boxes of evidence already and the MC was in the process of setting a date for the hearing to commence. Unfortunately it was a complicated matter with many allegations which caused it to take a lot of time.

The Chairperson gave thanks and said that he would raise the issues raised by Members. The Committee had said that it would write to the judge responsible for the MC to have a meeting with him and this was a process that the Committee was still committed to. The challenge for the Committee was that its programme was extremely tight between now and the end of the year but it still concerned with issues raised by Mr Dyantyi and wanted to follow up.

The issues raised by Mr Dyantyi were not only limited to delays but a range of systemic issues including issues of racism and Black Magistrates being suspended that had to be dealt with. The programmes that had to be in place to assist magistrates to deal with GBV was an issue the MC and Judges had to address and it would be discussed with the Chief Justice as well. The Committee felt that there had to be a programme to sensitise the Judiciary as whole on GBV as it was critical.

The MC was a structure that by law dealt with investigations. Therefore any evidence or suggestion that it was biased had to lead to a substantive motion brought before the Committee. What was before the Committee today was that it had to be decided whether there was a prima facie case that warranted the suspension of Magistrate Bodlani.

Members were in agreement that there was a prima facie case for Ms Bodlani to be suspended.

By agreeing to her suspension, the Committee was not saying that she was guilty but rather there was a prima facie case for her to answer. There was still an opportunity for an inquiry where she would be legally represented if she so wishes, which would recommend if she had to be removed or not. For all intents and purposes, the Members agreed that she had to be suspended.

He asked to move to the second item and asked for a briefing on the Information Regulator. The Commission was excused.

Information Regulator Vacancy

Ms Christine Silkstone, Committee Content Advisor, said that she would run through the appointment process for the Information Regulator vacancy. It would be a brief presentation as she said she sent a longer document to Members late the previous week. The matter was referred to the Committee on 20 November 2019 and it required the Committee to nominate a suitable person to fill the vacancy left when Prof Tana Pistorius resigned from the Information Regulator.

The Information Regulator consisted of five members, a chairperson, two full-time members and two-part-time members. Of the ordinary full-time Members one was appointed to take care of the Protection of Personal Information Act (POPIA) responsibilities and the others for Promotion of Access to Information Act (PAIA) responsibilities. There was a brief bio of members but overall all the members had legal backgrounds with diverse experience.

Ms Silkstone outlined the formal criteria for appointment and disqualifications for the vacancy.

On the appointment process, she said that the President appointed the chairperson and members of the Information Regulator on the recommendation of the National Assembly. The NA had to recommend the persons nominated by a multi-party committee of the National Assembly and approved by NA resolution with a supporting vote from the majority of the members of the NA.

The term of office was for no longer than five years but members were eligible for reappointment.

The process for filling the vacancy was the same as when the Committee appointed the Deputy Public Protector. The only difference was that when the vacancy arose, unless the Members or House recommends that the period of appointment was longer, the person would then fill the remainder of the term of the officer of the vacant position.

The Committee had a discussion on the matter before and it was agreed that it would recommend the appointment for five years. The Committee process to date had included the advertisement and it had received 25 applications with two withdrawals therefore there were 23 candidates to consider.

Ms Silkstone suggested some considerations that could maybe be discussed which were: the number of candidates to be shortlisted, the process for shortlisting, interview structure and length and the interview questions. As well as when screening would take place bearing in mind that screening was not the same as vetting.

Discussion

Mr X Nqola (ANC) said that the report stated that a person could be nominated to serve for a period of not more than five years but was eligible for re-election. Were there a number of terms they could serve if they were reelected?

The Chairperson said that the issue had been raised before last year as the law currently allowed a person to be reappointed as many times as possible. It was suggested that the Committee consider amending the legislation to have a term limit. The issue was raised but the current legislation allowed for multiple re-elections.

Mr Nqola said that it had to be noted and dealt with at a later stage.

Adv Mohamed asked if it was a part-time vacancy under consideration.

The Chairperson replied that it was part-time. The shortlisting would happen on Friday (21 August). There had to be an agreement on the number of shortlisted candidates (bearing in mind that it was a part-time position); on the number of days required for the interviews; and whether screening would follow the same process as the Committee followed with the Deputy Public Protector Appointment. In that case, members of the public were allowed to raise issues. The Committee would need to determine how long such a process would take.

Mr Nqola said that it was befitting to comment on work well done during the process of appointing the Deputy Public Protector. This had set a benchmark across the board and the Committee should not deviate from this.

On the number of days and shortlisting, he suggested one day for the interviews and that five people be shortlisted for interviews, considering the pandemic’s effect on the environment now.

The Chairperson asked members for their view on the suggestion made.

The Members agreed.

Mr Horn said he did not disagree but it would not be the best to be bound to identifying five candidates because what if only four candidates were applicable. Five had to be used as a guideline for the number of people to interview as there could be four or six people who were applicable. He did not have an issue with the general approach.

The Chairperson said if only three or four candidates were eligible it would still be fine but the issue was that the number should not exceed five if possible.

Mr Dyantyi said that he agreed.

Ms Maseko-Jele said that she was affected by load shedding and that if she disappeared this was why.

The Chairperson said that a maximum of five candidates was agreed on, but fewer candidates would be fine and the process would take one day. When would the screening happen, before or after the interviews as it would affect the Committee’s project plan?

Ms Silkstone said that if the screening happened beforehand it would affect the programme but if it happened afterwards it would have less of an effect. Screening provided the Committee with important information before interviews therefore it was up to the Committee to decide.

The Chairperson asked for the Members guidance as screening would require the programme to be revised because it would take a week or so. The screening process would require candidates’ responses as well.

Ms Mofokeng suggested that the process of screening be allocated two weeks to deal with all the logistics.

Mr Horn said he agreed that the process which allowed for screening be allowed. In the case of the Deputy Public Protector two weeks was sufficient therefore he agreed.

Ms W Newhoudt-Druchen (ANC) asked if the screening would be after the shortlisting process.

The Chairperson replied that it would be after the shortlisting.

He said that given the decisions taken today the programme would be amended and on Friday the shortlisting would be done. It was likely that the interviews would be done in the next term if the two weeks of screening was included. He thanked Members and Ms Silkstone.

He asked for the presentation on the Cybercrimes Bill background to begin. The Committee would try to conclude on the Bill shortly but time had to be given for consideration as the Bill was technical and not all Members were part of the Committee when the Bill was approved.

Cyber Crimes Bill presentation

The Deputy Minister said that the Bill was passed by the previous Committee and NA in the previous Parliament and went to the NCOP. It was revived in the Sixth Parliament and the NCOP proposed amendments.

It was a section 75 Bill which meant that the Committee could accept or reject the amendments only and not make further amendments. If there was rejection, unlike with a section 76 Bill, that would be the end of it instead of it going to a mediation committee between the two houses. The Department would provide an overall briefing of the Bill because expecting the Committee to accept or reject the amendments without knowledge of the Bill could be unfair.

Overview of the Cybercrimes Bill

Mr Sarel Robbertse, State Law Advisor, Department of Justice and Constitutional Development (DoJ & CD), said that he would take Members through the Bill.

The Bill and cybercrimes were introduced. The Bill intended to create provisions to confront a rise in cybercrime and its evolving nature. Traditional laws do not address cybercrime effectively. There are jurisdiction challenges as cybercrimes have a transnational nature. There are issues with the law of evidence concerning data, co-operation with service providers, Human Rights Laws and alignment with international trends and best practices.

Mr Robbertse said that the Select Committee proposed amendments to the Bill which focused on altering the tone of the Bill mainly to reflect non-binary language as required by considerations of gender-neutrality, equality, dignity and identity; the restructuring of clause 16 to specifically reflect the impact of the paragraph (i) considerations in criminalising the disclosure of data messages of intimate images; amendments of clauses 1, 2, 3, 11, 13, 20, 21, 22, 24, 32, 33, 39, 40, 41, 42, 44 and 59, following comments received during public hearings, as well as further engagement with the Department, SAPS and the NPA; consequential amendments to the Bill as a result of the amendments referred to in paragraphs (i) to (iii); and technical drafting amendments to improve readability and interpretation of the Bill. The Bill was approved by the NCOP on 1 July 2020.

Mr Robbertse gave an overview of the provisions of the Bill and outlined the various chapters and individual clauses 1- 57 while highlighting Select Committee amendments were applicable in the Bill from slide 8 - 26.

The Schedule outlined the laws to be repealed or amended:

• All provisions in other laws that provide for the criminalisation of cybercrime are repealed to the extent that those provisions are substantially similar to the offences contemplated in Part I of Chapter 2 of the Bill.
• Schedule 5 of the Criminal Procedure Act, 1977 is amended to further regulate bail in respect of certain categories of cybercrimes contemplated in Part I of Chapter 2 of the Bill.
• Part II of Schedule 2 of the Criminal Law Amendment Act, 1997 (Act 105 of 1977), is amended to include certain categories of offences contemplated in Part 1 of Chapter 2 of the Bill under the ambit of that Act.
• Notably, amendments are effected to the Criminal Law (Sexual Offences and Related matters) Amendment Act, 2007 (Act 32 of 2007) (the SOA), in order to criminalise the harmful disclosure of pornography and to provide for protection orders to protect victims from the harmful effect of such communications; and deal with the criminalisation of child pornography in terms of the SOA.

• Amendments are effected to the Child Justice Act, 2008 (Act 75 of 2008), to prescribe sentencing options for minors that commit offences contemplated in Parts I and II of Chapter 2 of the Bill.

Discussion

The Chairperson said going forward, inclusion of non-binary language, as suggested by the NCOP, had to be highlighted, as well as sections where there was a substantive amendment by the NCOP. The NA had to take a view if it agreed with the non-binary issue and then look at substantive changes by the NCOP. Therefore it had to be clear what the amendments were. He said that the first document was 105 pages and the presentation was 25 pages. He requested a document that was easier to work with.

He asked if Members had any questions.

Adv G Breytenbach (DA) asked what the plan for dealing with the Cyber Terrorism was going forward.

Ms Newhoudt-Druchen gave thanks for the presentation and said she had only received the presentation that morning therefore did not have a chance to scrutinise it. She said that her computer would disconnect soon but wanted to ask questions before then. She understood that the Committee was only approving the NCOP amendments but wanted to know what the procedure was if the Committee wanted to add anything. This was because the Bill came before cabinet in 2018 and today in 2020 there had been many changes in technology since 2012. How could technological changes be accommodated?

The last slide mentioned children, did this Bill protect children? Especially considering that more children were online and cyber bullying existed. She said that she had not studied the definitions of cybercrimes in the Bill therefore wanted to know if there was protection for children being victimised by other children.

The Department only introduced the beginning and background but did not go through the different definitions. Had there been changes in the definition sections in the Bill since its inception that had to be noted?

The Chairperson replied that the Committee could only reject or accept amendments but would not be allowed to add anything to the Bill. Amendments could be made going forward if the Bill was accepted. He said that the Deputy Minister and team would answer her other questions.

The interviews were scheduled for two days but this time could now be used to deal with the Bill so that it could be finalised this term. He said he also saw the presentation that morning and he said Members took seriously exception to receiving the documents late. All presentations had to be sent in due time in order for Members to interact with them.

Department’s response

The Deputy Minister said that Mr Robbertse would respond to the questions. He apologised for the late submission and said that he was not sure when the original text document was sent but would ensure the Committee got things earlier in future.

On the issue of non-binary language, he said that it was a matter of “he”/”she” becoming “they” in the Bill.

There was a submission from the Center for Applied Legal Studies (CALS) and others to the NCOP on the matter that the display of a woman’s breasts was not allowed without permission. CALS raised concern that this was binary because Transgender people were excluded. This was then amended and then the matter was raised that if the recognition of Transgender and Intersex people was being made, the Bill could use “they” instead of “he”/”she”

In response to Ms Newhoudt-Druchen he said he said it would be interesting to know what she was concerned about. Technology did change but the aim was to have legislation drafted that could accommodate technological change. For example with PAIA when it was passed a lot of now dominant social media platforms were not dominant therefore the Department tried to ensure that legislation accommodated future changes which were unknown.

Mr Robbertse on the non-binary matter, said that South African legislation used “he”/”she” or “it” but there was an international movement in international drafting practices to move away from this. It was used outside South Africa but this was the first time that it would be used comprehensively in a Bill.

On provisions in the Bill that protected children, he said that Clause 14, 15 and 16 had provisions to protect children. Clause 14 dealt with malicious communications that incite damage to property or violence against a person, Clause 15 dealt with threats with damage to property or violence and the offence of intimate images also dealt with this. The Protection of Harassment Act comprehensively dealt with harassing conduct. Harmful disclosure of pornography and Protection Orders in the schedule of the Bill could be used to protect children.

This was one of the first steps taken by South Africa to comprehensively deal with malicious communications but countries liked the United Kingdom, Australia, New Zealand, Ireland and Canada had only recently published research documents to deal with malicious communications. In future this could be broadened but currently clauses 14,15,16 , the Protection of Harassment Act, harmful disclosure of pornography and especially the provisions in Films and Publications Act -which was recently amended- provided sufficient measures to protect children against bullying.

On amendments to the Bill to facilitate new technology, he said that when the Bill was developed in 2016 international best practices were followed and he was not aware of changes since 2016 that had been effected in legislation in any country that would from his perspective give rise to a need for a change provisions in the Bill. International best practices were followed and the Bill catered for mostly all technologies.

On cyber terrorism, he said that there was a provision in the schedule of the Bill that amended the South African Terrorism Act to deal with cyber terrorism. There were also various recent conventions that were adopted by the United Nations to deal with Cyber Terrorism. In 2016 the United Kingdom enacted amendments to its Terrorism Act to deal with the use of the internet for terrorism purposes.

There was a need to deal with Cyber Terrorism but the current amendments to the Terrorism Act were promoted by the Civilian Secretariat of the South Africa Police Service. He said that he was to an extent involved in consultations regarding these amendments and the provisions that were in the Bill were included in the amendments to the Terrorism Act. This also provided for additional provisions to deal with the conduct of Cyber Terrorism. He was not sure if this had been made available for public comment but it did extensively deal with Cyber Terrorism.

Further Discussion

The Chairperson asked for further questions or comments on the Bill?

Ms Mofokeng said that as raised by Ms Newhoudt-Druchen, it appeared that technological events had overtaken the Bill and asked if this was not a problem. Were there observations made on what could hamper the Bill going forward? Was the Department not worried? Considering the 14 submissions which contained an anonymous submission, the question became who was anonymous and what was this person’s intention. What was the response to occurrences such as the news today about Transunion where people’s information was being hijacked during Covid-19?

Mr Robbertse responded that virtual platforms had already existed when the Bill was drafted and personal conduct that could amount to criminal activities on virtual platforms was catered to in the Bill.

On new changes, he said that technology changed frequently and that Cloud Computing was one aspect that was not fully catered for but at this stage the rest of the world was still making developments on principles on investigation of evidence in the cloud. The Bill could be amended from time to time to deal with future changes but it laid a basis and could deal with almost all cybercrimes and investigations.

On the anonymous presentation received, he said that it was not from the Hackers Group Anonymous. It was a short presentation which he could not remember the contents of but the person did not want to disclose their name when it was submitted. He could not take it further.

Consideration of NCOP amendments to the Bill

The Chairperson asked if there was an objection to the NCOP amendments or did Members need two days to deal with the Bill clause by clause. Were Members in a position to apply themselves now or to have the matter rescheduled and dealt with clause by clause?

Adv Breytenbach said that she thought it could be dealt with now. She said that the Bill had been dealt with quite extensively as Members had engaged with it and amendments by the NCOP. The NCOP amendments appeared to be sensible and were all incorporated. She saw no reason why the Committee could not support the Bill.

Adv Mohamed said that the ANC concurred and supported the changes.

The Chairperson asked if there were any objections and there were none therefore the Members agreed to all the amendments. The date to debate the adoption of the Bill in the NA would be scheduled.

Closing remarks

The Chairperson gave thanks and said that the Committee would be in contact with the leaders of the political parties in the study group on the two days that it had at its disposal.

He said that Mr Horn had raised an important issue when the programme was circulated which dealt with the issue of the Committee’s meeting with the Judge President of Gauteng concerning case lines. The Committee was still in contact with the office to try and find an appropriate date to meet with the Judge President.

The issue of case line management was one of the pillars of the justice system and it had to be prioritised. The Committee would be informed when a date for this meeting was determined. It was an important matter raised by Mr Horn raised and the decision taken had to find an expression in the Committee’s programme despite it being very tight. The issue raised by Mr Dyantyi had to be dealt with as well and there had to be a meeting with the Chairperson and Judge of the MC.

The Deputy Minister asked if the Bill had been dealt with as the Chairperson did not vote.

The Chairperson replied in the affirmative, as there were no objections.

The Deputy Minister said that there were problems of availability of officials for dealing with the agenda item on the State Liability Bill for Friday [21 August]. Ms Kalay Pillay, Acting DGG: Legislative Development, DoJ &CD, who was meant to present, would accompany the Minister to the Standing Committee on Public Accounts (SCOPA) and Mr Du Preez was unwell. He asked if this agenda item could be moved and he hoped this could be accommodated in the following week as days had opened considering the decision around interviews and screening.

The Chairperson asked if one of the days that were scheduled for interviews could be taken to deal with the State Liability Bill.

Adv Mohamed agreed and there were no objections.

The Chairperson gave thanks.

The meeting was adjourned.