Constitution Eighteenth Amendment Bill: Committee Report; RICA Certificate of Exemption: DoJ&CD briefing, with Minister present

Meeting report

The Chairperson noted that the Minister, Ronald Lamola, would be leaving early to attend an engagement with the President and the House of Traditional leaders.

Committee Report on Constitution Eighteenth Amendment Bill

The Committee proceeded to adopt the report on the Constitution Eighteenth Amendment Bill [B1 – 2023] dated 17 March 2023. A minor change was made to paragraph 8 on page 2 with the addition of the words ‘South African’ in line three of the paragraph, to read South African sign language.

The Chairperson stated that the Bill would be debated in the House and the necessary arrangements would be made when Members return from recess.

Read:
ATC230317: Report of the Portfolio Committee on Justice and Correctional Services on the Constitution Eighteenth Amendment Bill [B1 - 2023], dated 17 March 2023
Dr W Newhoudt-Druchen (ANC) thanked the staff of the Department of Justice and everyone who worked on the Bill. She thanked the Minister for the support and the Committee for passing the report. She also thanked the deaf people on the platform for their support.

The Chairperson thanked the Department for the support and for making the work of the Committee easy. Debating the Bill before the House would be a historic day because the country would be standing united in amending the Constitution to include sign language as one of the official languages. He thanked Members for the support to ensure that the amendment is passed. He extended his gratitude to the deaf community for ensuring that they are part of this historic occasion.

Minister’s opening remarks
The Minister said it has been a long journey for the Department in terms of the interception of communications part, which is an indispensable tool for LEAs (Law Enforcement Agencies) to detect, prevent and investigate criminal conduct. The interception of direct and electronic communications and the provision are regulated by RICA (Regulation of Interception of Communications and Provision of Communication Related Information Act) which prohibits the unauthorised interception of communications and provision of communication-related information, and authorise the interception of communication in emergency situations without direction. It further provides for the issuing of directions for the interception of communication and obtaining information, and the placing, maintenance, and removal of interceptions. It makes provision for exemptions that are being dealt with in terms of the Certificate of Exemption which the SAPS would have to apply to the Minister of Justice and other relevant authorities and affected departments. It had been a journey of many years to get consent from other departments. Various issues had been raised and as a result, the certificate could not be presented to Parliament to the detriment of operations and the work of the SAPS. The Department would be using this opportunity to present the Certificate of Exemption request to Parliament and to state the processes that were followed, and the laws and requirements that had to be adhered to. He requested permission to leave early to attend another engagement.

DoJ&CD presentation
Adv Kalay Pillay, DDG: Legislative Development and Legal Services, DoJ&CD, thanked the Minister for the brief introduction of the topic. She presented a strong case in support of the request for the exemption in terms of section 46 of the RICA. The exemption application is largely motivated by the need to regulate the use of listed equipment to investigate, combat and prevent serious criminal activities. The intelligence division of the SAPS is in possession of listed equipment but is unable to use the equipment without the Certificate of Exemption.

Listed equipment includes any instrument or device capable of being used to access, record, monitor or retrieve communications from a computer without the permission of the author, including but not limited to keystroke recorders and software, telephone wiretaps, long-range electronic audio amplified microphones, and other forms of transmitters, and intercepting and recording devices. Control measures are in place to regulate access to and the use of the listed equipment in the SAPS storeroom.

(See Presentation)

Discussion
Adv S Swart (ACDP) appreciated the lengthy explanation and understood the operational need for the exemption. He wanted to understand why this Committee was being tasked with this request considering that it did not have expert oversight over the RICA. He asked what the timeline was for the Committee’s approval given the two-month period mentioned in the presentation. Considering that this was a far-reaching exemption, he asked to what degree the Committee was expected to do oversight bearing in mind that Members of this Committee lacked the expertise, and to what degree the Portfolio Committee on Police should be consulted. In September 2021, the designated Judge Bess Nkabinde, in her report to Parliament, lamented the unlawful interception of communication of private persons and public officials and how agencies had bypassed her office to unlawfully intercept communications. She reported that state authorities had over time been untruthful to get applications approved. The abuse under Gen Mdluli must be considered. The former commissioner, Khomotso Phahlane, was arrested for allegations of malpractice by wiping out records and failing to record cases that could be linked to systemic abuse in Crime Intelligence. At the time it was alleged that senior police officials procured software that could make it impossible for investigators to access telephone call records. He wanted to know to what degree prosecutions were taking place as a result of RICA non-compliance. He asked to be allowed more time to consider the memorandum in detail. He wanted to know how the SAPS had been operating without the exemption. He asked what the reasons were for the delay in getting approval from the Ministers since the July 2019 application and presenting it to the Committee only in 2023. It was important to have a balanced approach and to ask questions about the impact of the delays on the operational efficacy of the police. The impact of the RICA was found to be unconstitutional in the Amabhungane Centre for Investigative Journalism case. The court found it was unconstitutional to the extent that it failed to adequately prescribe procedures to ensure that data obtained pursuant to the investigation might be used unlawfully.  All these interests must be balanced in approaching this request.

Mr J Engelbrecht (DA) asked if the exemption request could be connected to the grabber incident involving the current Minister of Police. Serious allegations were made about the illegal use of devices. In terms of section 46(3)(b) of the RICA, the Certificate of Exemption becomes valid upon the date of being gazetted. This meant no retrospective indemnification of past allegations. He drew attention to the unsuccessful IPID attempts to investigate past allegations and was of the opinion that it should be investigated and protective disclosures should be discontinued. He enquired about the involvement of a member of the police who was found to be involved in the purchase of the device.

Dr Newhoudt-Druchen wanted to understand the matter before the Committee because she was unfamiliar with the subject. Complaints had been reported in the newspapers and on WhatsApp about drones having an impact on flights at airports. She asked who was responsible for allowing drones to fly around and if the request for exemption included the issue of drones. She questioned how the Committee would become aware of the abuse of the exemption because operations are being done by the SAPS and the Portfolio Committee on Police is receiving those reports.

The Chairperson said the challenges might be related to the Principal Act which was passed by this Committee. He suggested a review of the Principal Act to ensure that the Committee with the oversight responsibility and expertise would report with authority to the National Assembly.

Brig Francois van Graan, Head Legal Support, SAPS, replied that drones did not form part of this legislation. He explained that the SAPS was in possession of surveillance equipment. This request was an attempt to comply with regulations and to use the equipment lawfully. The challenge was that the process is being abused by persons in the private sector who have been using the equipment illegally without consequences.

Maj Gen Lushaba, CFO Crime Intelligence, SAPS, confirmed that the request was related to the equipment that was purchased in 2017. It is being kept in the storeroom and had never been used since then. The SAPS was counting on the blessings of the Committee to deploy the equipment. He explained that the equipment used to be with the Scorpions and then handed to the HAWKS before it was transferred to the SAPS Crime Intelligence Division as the custodian to exercise better control. The old equipment was used without exemptions and was no longer usable. The deployment of the equipment could have been useful in a number of cases but previous exemption requests had been unsuccessful. The authority to make use of the equipment would make a significant contribution to crime-fighting efforts. Cases of abuse brought to the attention of the SAPS are being investigated to either validate or refute such allegations. The most recent Phala Phala farm investigation delivered a negative outcome because it found that none of the officials were involved in the matter. The SAPS undertook to ensure compliance and provide assurance that no abuse of equipment would occur. Oversight reports would be made available to the Committee.

The Chairperson asked if there had been any positive outcomes of investigations and what had been done in those cases.

Maj Gen Lushaba said SAPS was not aware of any positive investigation outcomes because he had been recently appointed to ensure stability in the division. He undertook to verify and present the information at a later date.

Adv Swart expressed his appreciation for the hard work of the SAPS under difficult conditions. He drew attention to a number of allegations of abuse that had been reported, e.g. the comments by Judge Nkabinde about ongoing issues of abuse and the Constitutional Court finding of illegal surveillance in the ranks of the police. The Constitutional Court ruling in terms of the illegal surveillance of the Amabhungane journalist, Sam Sole was far-reaching.

Brig van Graan replied that the Amabhungane judgment had a bigger impact on the State Security Agency (SSA) than on the SAPS because it referred to bulk interception. This exemption request was about locating a cellular phone where a crime had been committed. The SAPS had implemented control measures to give effect to the judgment.

The Chairperson confirmed that the RICA amendment had been referred to the Committee for deliberation.

Mr Engelbrecht said the allegations of abuse were not about the use of the equipment but the purchase thereof. He wanted to confirm if the exemption certificate would not be applied retrospectively but from the date of approval by Parliament.

Brig van Graan replied that the RICA clearly states that it cannot be done retrospectively. The exemption certificate will apply only once a process is finalised by the Committee and published in the Gazette.

Maj Gen Lushaba said action would be taken against members involved in the purchase of the equipment. A criminal case is being investigated by the Safety and Security Sectoral Bargaining Council (SSSBC). The case is wrangled with complexities as members involve had been advancing reasons to justify the purchase of the equipment.

Ms Pillay reiterated that the application was not retrospective and would become applicable from the date of publication in the Gazette. Issues of unconstitutionality were being dealt with through ongoing investigations. She pointed out that the Department was balancing the concerns of the abuse of equipment versus safeguards quite extensively to mitigate risks of an increase in crime. Privacy issues need to be balanced against crime.

The Chairperson asked what damage it would have on the fight against crime if the request were not agreed to by Parliament.

Ms Pillay said questions about the impact of the fight against crime should be evidence-based. The delay in obtaining the exemption certificate was not for lack of trying. Numerous applications and engagements had taken place since 2010. The wording of the Act requires agreement by all the Ministers involved. Issues of departmental mandates and challenges of overlapping are some of the reasons for the approval not being granted. She reiterated that the application serves to ensure a legal basis for the SAPS to possess, assemble, sell, purchase, and manufacture the listed equipment in the future.

Adv Swart said the engagement helped Members with a better understanding of the matter. He asked if granting the exemption would assist to deal with illegal surveillance by private individuals as in the tragic case of Lt Colonel Charl Kinnear. He sought clarity on the timeline being considered for this request.

Mr Engelbrecht sought clarity on which criminal cases are being investigated by the SSSBC.

Maj Gen Lushaba replied that the case before the SSSBC was an internal departmental case that the former National Commissioner had initiated. The matter was currently on the Division’s disciplinary register.

Ms Pillay drew attention to section 46(4) of the RICA which stipulates that the Minister must table a certificate in the National Assembly (NA) for approval. The NA may reject a certificate within two months after it has been tabled. The certificate will be deemed to have been approved if the NA does not reject it after the two months have lapsed. The Minister must then publish it in the Gazette. Should the NA reject the request, the Minister may table an amended certificate.

The Chairperson asked if the Minister still need to approve the certificate after it had been approved in the NA. He enquired if comments had been obtained from members of the public.

Ms Pillay replied that no public comments had been obtained.

The Chairperson proposed that the Committee approve the Certificate of Exemption with the caveat that the RICA needs to be reviewed because of secondary legislation flowing from the Act. A number of legislative developments have occurred since the RICA was introduced more than 20 years ago.

Adv Swart said he understood the operational needs but the enforcement of safeguards was also important. The Committee need to deal with Constitutional amendment. He supported the proposal for the approval of the certificate of Exemption.

Mr Engelbrecht said he first needed to refer the matter to his caucus for consultation.

Dr Newhoudt-Druchen agreed with the Chairperson’s proposal.

The Chairperson noted the DA’s reservation and stated that there was broad agreement for the approval of the Certificate of Exemption. He asked the Committee Secretary to indicate a suitable timeslot to finalise the matter.

The Committee Secretary said the draft report would be ready by the week ending 24 March 2023. He advised that the term was ending in two weeks.

The Chairperson said the Joint Committee on Intelligence had raised concerns about the matter not being finalised. He suggested to the Committee Secretary to schedule a 30-minute timeslot on Tuesday, 21 March 2023, for the adoption of the report.

Adv Swart said he did not have a problem with the consideration of the report on Tuesday but he also needed to first consult with his colleague on the Portfolio Committee on Police.

Dr Newhoudt-Druchen reminded her colleagues that Tuesday was a public holiday. She proposed to schedule the consideration of the report either on Monday, 20 March 2023, or Wednesday, 22 March 2023 after the sitting.

The Committee Secretary advised that Wednesday morning before meetings might be preferable.

The Chairperson said Members from other provinces would need to sleep over in Cape Town to be able to connect at 09:30 on Wednesday to deal with the report.

The Committee Secretary committed to sending an SMS notice about the logistical arrangements of the upcoming oversight visit before the close of business. Approvals for final arrangements would be concluded by mid-day, i.e. on Friday 17 March 2023.

The Chairperson requested the Committee Secretary to communicate the arrangements with Adv Breytenbach and Mr Horn who might be having problems travelling to the Nort-West after meeting with the Judge President of Gauteng.

Adv Swart brought his apology for the oversight visit to the attention of the Chairperson.

The Chairperson thanked the Police Department for their assistance.

The meeting was adjourned.