Appointment of Critical Infrastructure Council, with Minister of Police

Meeting report

The Chairperson outlined the meeting will cover the appointment of the Critical Infrastructure Council,  the adoption of minutes and a briefing on the Committee oversight visit that would take place over the coming weekend.

The Committee Secretary, Ms Babalwa Mbengo, noted apologies from Ms S Patrein (ANC) and Dr P Groenewald (FF+).

Adoption of minutes
The minutes of 18 February and 23 February were considered and adopted.

Chairperson’s Comments
The Chairperson said that she noticed some nominees for the Critical Infrastructure Council (CIC) in the meeting, who still need vetting for top security clearance. The Civilian Secretariat for Police Service (CSPS) invited them to the meeting. Before the nominees for the Council are finally appointed, they must achieve top security clearance. For the sake of the Committee’s records, she asked for an understanding of why the CSPS invited the members of the Council.

Mr Takalani Ramaru, Acting Secretary of Police, said that the nominees were informed that there was going to be a presentation to the Committee. The nominees were informed that if they were available then they may join the meeting, not as Council members but as members of the public. So, the nominees who joined the meeting joined as members of the public.

The Chairperson agreed that the Council nominees joined as members of the public and will therefore not participate in the meeting. They will not be recorded on the attendance register as members of the CIC until they have their top security clearance.

Briefing by the Minister of Police on the appointment of the Critical Infrastructure Council
Mr Bheki Cele, Minister of Police, said that the appointment of the Critical Infrastructure Council has become a prominent matter, especially after what happened to Parliament with regards to the fire. As such, some matters of the law have been partially ascended by the President and need follow-up. One of these matters is the nomination of the Council, although there are issues that need to be finalised.

There are also the regulations that have been developed by the South African Police Service (SAPS) and the CSPS. It was said that these regulations are ready to be presented to the ministry for further processing. The presentation on the regulations would take place in the following week, and the ministry will be advised on the processes that should follow. It is believed that all these processes including the vetting and hearings, should be implemented by 30 April 2022. The financial standing of this exercise should be well understood before it is properly implemented. It is therefore important that the Minister of Finance and Minister of Police sit down to discuss how it is going to happen. This will concern remuneration, especially for the members of the Council. Treasury will have to provide some understanding of the operations, especially for meetings, workshops and outreach programmes.

A declaration had been sent to the President, to ask that he ascends to those areas that might not need regulations and that may be implemented immediately, such as the administrative part of these matters.

Presentation:  Appointment of the Critical Infrastructure Council
Mr Milton Ntwana, Legal Advisor, CSPS, said that the presentation gave an overview of the appointment of the Council in terms of the Critical Infrastructure Protection Act, 2019. The Minister appointed 13 members of the Council which consists of eight government role players and five members from the private sector and civil society (whose confirmation is now subject to finalisation of the vetting process).

The presentation covered the following:

● Process of appointing the Council
● Outstanding issues before the Act comes into operation
For the Critical Infrastructure Council to perform its functions, it is necessary for the sections of the Act dealing with the Council to be put into operation, as the Regulations on the functioning of the Council must then also be in operation.
● Processes in place to legalise the operation of the Council
A draft Proclamation for consideration by the President had been signed by the Minister and submitted to the President for consideration. It is recommended that the President put into operation the sections relevant to the Council. Operationalisation of the Council is scheduled for 30 April 2022.
● Proposal for operationalisation
● Drafting of regulations for the Council
The Draft Regulations (for the functioning of the Council) will be finalised soon and submitted to the Minister for approval to publish for public comments.

(see presentation document for detail)

Discussion
Ms Z Majozi (IFP) asked how long the process of vetting takes place for the issuing of top security clearance. She asked when the Committee would get feedback on whether or not the members of the Council were issued top security clearance. The presenter said that Section 9(1) and 9(2) of the Act are the functions of the National Commissioner that need to be put into operation by 30 April; she asked what would happen given that the National Commissioner will serve his last day at the end of March, she asked if this would prevent the Council being functional.

Mr O Terblanche (DA) asked when a permanent Secretary for Police Services would be appointed. He recalled that he warned well in advance that the CSPS will soon be without a Secretary and this is where it is at the moment. It is important that the regulations are finalised, because the Council has no functions or role at the moment, until such time that the regulations are finalised. He looked forward to when the whole setup is rolled out. He asked for confirmation on whether the timeframe for 30 April is when the operationalisation should be finalised. With the situation of the Parliament building that was burnt down, he wondered if SAPS have an updated list of National Key Points or National Key Point Complexes. The list must obviously be published within 60 days of the Act coming into operation.

Mr H Shembeni (EFF) asked if SAPS has an updated list of the National Key Points. He asked what selection criteria the Minister used to select candidates from the names recommended by the Portfolio Committee on Police. When will the Critical Infrastructure Protection Act come into operation?

Mr A Seabi (ANC) asked if the Minister had decided on a baseline for the remuneration of the Council members, which he will negotiate with the Minister of Finance. He asked if there was a gender balance in the appointment of Council members.

Mr Terblanche asked if there is an amount on the budget that is allocated to remunerate the Council members.

Response
Mr Ramaru said that the process of vetting was completely outside the CSPS. It is with the State Security Agency. With the assistance of the Committee, it is believed that this process can be prioritised and be done within the next few months.

The office of the National Commissioner will still exist when he leaves and therefore the work that would need to be done by the National Commissioner will still be done, even when the incumbent leaves the office.

The issue of the budget still needs to be dealt with through the Minister of Police who will be in contact with National Treasury. However, in the interim, the Department will have to absorb whatever expenditure will be incurred, through the allocation to the office of the CSPS.

Dr Philip Jacobs, Director: Legislation, CSPS, said that the plan is to implement the Act in two stages. The first stage would commence on 30 April 2022, when the President puts those sections relating to the Council into operation. The reason why there are functions for the National Commissioner is that the guidelines that the Council must determine, must be recommended by the National Commissioner. The date of 30 April, is the date by which the Council is formally established. Whether the Council will be able to start their work on that date will determine the other qualifications in the Act, such as the security clearance that must be obtained and the regulations, although it might be possible to function without the regulations. The only regulations that need to be published by the Minister in the first phase are the regulations on the functions and the procedures of the Council. Ideally, it is intended that these regulations would be ready by 30 April. There needs to be compliance with all requirements before the Council can start to function. The rest of the implementation of the Act depends on readiness.

He said that he could not respond on behalf of SAPS, but the submission of the list of the National Key Points is subject to the Act fully coming into operation. This is definitely an issue that must be addressed before the Act comes into operation so that the transitional provisions can kick in and be transferred from National Key Points to critical infrastructure.

Mr Ntwana said that the selection criteria that the Minister used to appoint the Council members were based on the list of ten names that were recommended in terms of the preference by the Committee. The top five names, from the list of the ten names, were recommended for the Minister to consider.

In terms of the gender balance, there were only males from the government role players. Ms A Bruwer would be the only female when she replaced Dr M Tau who will retire at the end of March. From the civil society and private sector role players, there were two females and three males.

Deputy Minister’s comments
Mr Cassel Mathale, Deputy Minister of Police, said that most of the issues had been covered but the issue of gender imbalance is a matter that must be considered as matters are finalised.

There will never be a vacuum and there will always be a National Commissioner of Police in whatever form. If the National Commissioner leaves at the end of this month as reported, then someone will be appointed in that space on 1 April, either in permanent capacity or acting, until the President appoints another National Commissioner.

The process for the appointment of the Secretary for Police Service had been kickstarted. The ministry will ensure that positions are appropriately filled. The Secretary will take their place in the Critical Infrastructure Council.

Further discussion
The Chairperson said that the Committee had ensured a gender balance for its recommendations of the Council members, but there was no gender balance for the government role players from the ministry’s side. There is only one woman represented amongst the government role players.

Mr Shembeni said that he does not think he received a response for the list of National Key Points.

The Minister said that the question was addressed by Dr Jacobs when he spoke of the transfer of the National Key Point to the critical infrastructure. The list of National Key Points can be checked as it currently stands, or it can be referred to when it is transferred to the critical infrastructure, this list can be prepared and submitted to the Members.

He said that the vetting process depends on the structure that does the vetting. The Department should work hard to request that these structures work faster because he had heard that there is a backlog of 3 000. The Department would have to work hard to stick to the 30 April timeframe.

Most of the time the remunerations are standardised and are not based on the Minister. It is mostly discussed by Treasury and there is not much leeway for the Department or the Minister to negotiate. Remuneration will be within the limits set by Treasury.

Ms Majozi emphasised the Chairperson’s concern with the gender imbalance, especially because there is only one female amongst the eight government role players. She asked for an explanation on the appointment of the government role players. She asked if they were chosen based on their key positions and if they were the only people available to fill those positions in those areas.

The Chairperson said that as far as she can remember, there are two women from the civil society and private sector which the Committee has recommended and who are now on the Council. The Deputy Minister explained that the government role players’ positions determine which people are then represented in the Council. It also depends on the position based on the critical skills which pertain to the Council. She will consult with the Minister and Deputy Minister to see what can be done about the gender imbalance amongst the government role players, as there is only one woman who will only come in after the retirement of a male. The Council still has to be vetted and she is sure that the Committee can engage with the Minister and Deputy Minister before the Council is finally appointed.

The Minister said that he would have to check if they have the powers to reject the names that have already been nominated. He agreed that this issue needs to be raised with the departments but he doubted that there would be leeway to change the appointments once the departments have already nominated the persons to occupy those positions.

The Chairperson said that this will not be solved in this meeting, but there could be further engagements with those ministers who are responsible for nominating. Even the Act prescribes who is eligible from the different departments to be on the Council.

The Chairperson excused the Minister, Deputy Minister and the team from the CSPS; she thanked them for the detailed presentation and information provided.

The next item on the agenda was the logistics for the Committee's oversight visit.

Ms Majozi requested this part of the meeting be held in-camera.

The portion of the meeting open to the public was adjourned.