RICA Bill & Divorce Amendment Bill: deliberations; with Deputy Minister

Meeting report

The Chairperson advised Members to connect to the mini plenaries while participating in this meeting. He announced the postponement of deliberations on the Cannabis Amendment Bill. The Department needed more time to finalise certain clauses and would be ready on Tuesday, 31 October 2023.

RICA Amendment Bill: working document
Ms Allison Botha, State Law Advisor, Department of Justice and Constitutional Development (DoJ&CD), said the working document was amended following the public comment process. The changes related to references of ‘the’ designated review judge.  All clauses where a general reference is made to ‘the’ designated review judge had been changed to read ‘a’ designated review judge. The wording was not changed in a few instances where reference is made to a specific judge dealing with the surveillance application.

(See Presentation)

Members had no further comments to make on this matter.

RICA Amendment Bill: research note on inclusion of public advocate
Ms Botha presented a comprehensive overview of preliminary research conducted by the Department on the inclusion of a public advocate in surveillance law to address the ex parte issue. The Department was of the view that a comprehensive analysis of the role of a public advocate would require time, deliberation, and consultation. This process should best be dealt with in the broader overhaul of RICA because the role of a public advocate is a new concept in South African law. The Department was hesitant to establish a new office or develop a new role without careful consideration and consultation with stakeholders. The financial and cost implications of the new office or the role of a public advocate must be considered. The Bill currently proposes the introduction of a designated judge and a review judge which was a well-established practice within the South African context.

(See Presentation)

Discussion
Adv G Breytenbach (DA) was concerned that the Committee was being asked to consider the Bill without the full ability to consider the introduction of a public advocate because the Department needed more time for research and input. The Department seemed to be doing stop-gap legislation. She questioned the reasons for dealing with the Bill in this manner given the intention to overhaul RICA. This was not an effective way to legislate and was causing poor legislation. The Bill could not be viewed outside the context of the General Intelligence Laws Amendment Bill (Gilab). For obvious reasons, the space for movement was getting smaller. She was not keen on passing legislation that was not meant to deal with issues. It was like sticking a plaster to a gaping wound. Ex parte should be done on the supposition with the highest possible bona fide, but this was not the case. The government cannot be trusted to do the right thing. She was hesitant to allow the government such invasive powers. Insofar as privacy is concerned, the government has proven not to be vigilant.

Adv S Swart (ACDP) shared Adv Breytenbach’s concerns given other pieces of legislation. He appreciated that the introduction of a public advocate was a novel concept and that a designated judge could obtain other information. He requested the timeframe for the full review of RICA.

Mr W Horn (DA) found a specific aspect of the research note very concerning, given the task to address the challenges stipulated in the court judgment. The Department stated that the introduction of a public advocate might have unintended consequences for surveillance. The judgment directed Parliament to address issues on the basis of unregulated and unchecked surveillance. However, the Committee is being requested to do the bare minimum to satisfy the project. He sensed that the idea of a future wholesale review was a way of delaying the process which was likely to take years. He was concerned about what the executive was asking the legislature to do.

Adv Kalay Pillay, DDG: Legislative Development and Law Reform. DoJ&CD, said the introduction of a public advocate into surveillance legislation was a complicated issue. Various other options might have been considered but the Department chose the designated review judge and the automatic review process. This new provision is a safeguard to deal with ex parte surveillance applications. The option of a public advocate is not widely considered but it does exist in different forms in other countries. The Department viewed the review judge and the automatic review process as the most appropriate process to deal with challenges highlighted by the court.

Ms Botha replied to Adv Swart about the timelines. The Department is planning to conclude the initial consultation process by the end of March 2024, publish the Bill for consultation by July 2024, and introduce the Bill to the legislature at the beginning of 2025.
           
The Chairperson wanted to know on which basis the timelines were determined.

Adv Pillay explained that the timelines were determined on the basis of an extensive consultation process to be undertaken and the technical nature of the Bill. The Department needs to consider all policy-related matters such as the safeguarding, criteria, and the registration of SIM cards which appear to contain a loophole in the provision. The Bill was attracting broad interest from both state departments and the private sector. It took three years for the Bill to pass in Parliament. The Bill is complicated and would require a fair amount of engagement with various departments.
           
The Chairperson asked why the overhaul would be taking less than the three years it took to pass the Bill in Parliament.

Adv Pillay replied that she was referring to the three years it took to pass the original Bill. The Department was committed to presenting a workable document on the Bill to the Committee.

Adv Breytenbach said none of her concerns had been addressed. The Committee should deliberate on the appropriate way forward on this piece of legislation. If the Committee chooses the public advocate option, then more research should be conducted. She took mild offence to being told that the review judge was the most appropriate process. The Committee should decide on the appropriate process.

Adv Pillay said it was not the intention of the Department to be condescending. She accepted that views might vary about the most appropriate option to deal with the ex parte issue.

The Chairperson said it was important to consider all aspects presented to the Committee including Adv Swart’s suggestion that the Committee obtain a firm commitment about the timelines for the wholesale review. He proposed that the Committee adopt the Bill at this stage in order to meet the court deadline. The Committee should include in the Legacy Report, mechanisms to deal with the wholesale review of the Bill for the Committee in the next term to act on.

Mr John Jeffery, Deputy Minister of Justice and Constitutional Development, suggested that the matter could - in addition - be included in the Committee Report for adoption by the House. In this manner, the matter would be binding. A similar process was followed on the provision for expungement in the Criminal Procedure Act.

Adv Swart said it was regrettable that the Committee was unable to finalise the Bill in this term. He agreed with the Deputy Minister’s suggestion to include the matter in both reports and for National Assembly to consider the Committee report.

The Chairperson summarised the proposals, i.e. the commitment to timelines to be included in both reports and that the next Committee should prioritise the matter as one of the first legislative areas to focus on. At this stage, the deadline must be met. He asked the Department to present an updated document for a vote on Tuesday, 31 October 2023, and to include issues raised to finalise this part of the Bill. The comprehensive Bill will be dealt with after the elections.

Deputy Minister Jeffery said the Department had submitted a Bill with amendments, in which it was addressing the issue of more than one designated judge. He sought clarity about the request for an updated document because the information was similar to the presentation of the previous day.

The Chairperson said he needed a clean and final document to be presented for a vote.

Draft Divorce Amendment Bill
Deputy Minister Jeffery said the Department had submitted responses to public submissions and amendments were made to the submissions on this Bill. Most of the concerns related to the sentiment that the Bill is not against Sharia Law but merely providing for persons married in terms of a Muslim arrangement, to seek divorce in a civil court.

The Chairperson requested the Department to proceed with the clause-by-clause presentation of the Bill.

Ms Botha, presented the changes made following the public comment process.

Clause 1 – was amended to include ‘Muslim marriage to mean a marriage entered into or concluded in accordance with the tenets of Islam’.

Clause 2 – was amended to read ‘A marriage, including a Muslim marriage may be dissolved by a court by a decree of divorce …’.

Clause 3 – was amended to include ‘any minor or dependent child of a Muslim marriage …’.

Clause 4 – amended section 7 of the principal Act 70 of 1979 by the insertion of subsection (3A) after subsection (3). In terms of subsection (3A), a court granting a decree of divorce in respect of a Muslim marriage may subject to provisions of subsections (4), (5) and (6), … order that assets of a party as the court may deem just, be transferred to the first-mentioned party.

Clause 5 – amended section 9 of the principal Act 70 of 1979 by the substitution for subsection (1) to read ‘… a breakdown of a marriage, including a Muslim marriage, the court may make an order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other …’.

Clause 6 – was added to give effect to the following: ’This Act applies to all subsisting Muslim marriages, including a Muslim marriage which was terminated or dissolved in accordance with the tenets of Islam …’.

Clause 7– provided the short title, i.e. the Divorce Amendment Act, 2023.

The Chairperson said a vote on the Bill would take place on Tuesday, 31 October 2023.

Adv Breytenbach said the DA reserved its opinion.

Adv Swart did not have major objections and also reserve his opinion on behalf of the ACDP.

The Chairperson said the vote on both the Divorce and RICA Amendment Bills would occur on Tuesday, 31 October 2023. He drew attention to the outstanding matter of the letters from the unions and the South African Human Rights Commission that must be considered on Tuesday before the interviews for new commissioners are conducted. The Committee Secretary was tasked to distribute the programme for the following week. The programme for the remaining part of the term will be discussed on Wednesday, 1 November 2023.

The meeting was adjourned.