Judicial Matters A/B: finalisation RICA bill: Department response to public submissions; Adoption of Reports on Executive Undertakings; with Deputy Minister

Meeting report

Consideration and adoption of Judicial Matters Amendment Bill [B7B-2023]

The Chairperson noted the Bill related to 19 different acts administered by the Department of Justice and Constitutional Development. At the first briefing on the Bill, the Committee welcomed many of the clauses which would ease the administration of justice. The Committee received only one submission which was in support of the Bill when it was advertised for public comment.

The Committee proceeded to adopt the Judicial Matters Amendment Bill [B7B-2023] without proposed amendments. The Bill was slated to advance to the National Council of Provinces (NCOP) and subsequently to the President for further consideration.

During the Bill's deliberation, as part of the public participation process, stakeholders had been invited to submit written contributions, and advertisements were placed in newspapers. The deadline for submissions was set for 17 November. The Committee had received one submission.

The Committee Members moved to adopt the Bill.

The Committee was taken through the Committee report on the Judicial Matters Amendment Bill. There were no additions or amendments, and the report was adopted https://pmg.org.za/tabled-committee-report/5593/

Consideration of report on executive undertakings

Ministry of Police

The Chairperson said the Committee had engaged with the Minister of Police on the undertakings made during the "Taking Parliament to the People" (TPTTP) visit to the Ugu District Municipality in KwaZulu-Natal (KZN) in November last year, and a report had been sent to Members for thorough evaluation.

Observations

The Committee's observations had highlighted concerns about delegation in rural districts, but had commended police stations for their effective handling of crime, communication, and community engagement. Emphasising the significance of collaboration between the police and communities in crime prevention, the Committee encouraged the Department to bolster this partnership. The Minister had reported that means of travel were provided to community police forums, enhancing their functionality. The Committee stressed the importance of prioritising support, equipment, and material transport for Community Policing Forums (CPFs) in the upcoming financial year, recognising CPFs as integral to the national police service.

The Committee expressed appreciation for the Department's efforts in implementing disciplinary measures for the police force. Additionally, they recognised and congratulated the Ministry for its commendable work across all provinces, specifically acknowledging achievements in the Western Cape. The Committee underscored the importance of the national police service catering to the entire country.

Recommendations

The Committee recommended the following measures:

• The Department should intensify efforts to address challenges related to Community Policing Forums (CPFs) and finalise the draft resourcing model to adequately support CPFs in the upcoming financial year.
• Emphasised the importance of collaboration within the justice, crime prevention, and security cluster as a crucial tool for reducing crime.
• Called for the Department to ensure stringent disciplinary measures against implicated police members, emphasising the need for exemplary conduct to gain public confidence in the fight against crime.
• Urged the Department to maintain engagement with communities and CPF structures to comprehend the specific nature of crimes in different areas, fostering cooperation across all levels in the fight against crime.

The Committee moved the adoption of the report without amendments. https://pmg.org.za/tabled-committee-report/5591/

Ministry of Home Affairs

Observations

The Committee had also engaged with the Minister of Home Affairs on the undertakings made during the TPTTP visit to the Ugu District Municipality, and a report had been sent to Members for thorough evaluation.

The Committee welcomed the Minister's presentation, acknowledging the positive impact on service improvement, particularly in mobile support to rural areas. It emphasised the need for increased efforts nationwide, specifically targeting vulnerable communities in rural areas.

While recognising advancements in birth registration speed, the Committee called for enhanced accuracy. The Minister's response on rectification processes and government initiatives to digitise records using 10 000 unemployed graduates to digitise 350 million records was commended.

Improved office spaces in Menlyn Park and Pinetown were noted positively, emphasising the importance of translating government responses into a customer-centric approach for citizen satisfaction.

The Committee congratulated the Minister on addressing undocumented individuals, but raised concerns about crime and corruption. The Minister had highlighted successful actions against a fraudulent passport case involving a Pakistani national.

The Committee sought clarity on engagements with the State Information Technology Agency (SITA), expressing concern about potential impacts on the Department of Home Affairs (DHA). The Minister explained their dependency on SITA, ongoing engagements, and efforts to escalate the matter to the President for resolution.

Recommendations

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The Committee recommended the following actions:

• Prioritise increasing mobile support in rural areas nationwide, focusing on vulnerable communities to enhance the Department's standing.
• Implement training for accurately recording children's names at birth registration, addressing this historical problem promptly.
• Prioritise citizens' needs in service delivery, ensuring services were rolled out with consideration for citizens and communities, emphasising the importance of a responsive and caring government.
• Continue efforts to combat corruption through the counter-corruption unit, promoting respect between the Department and citizens in service delivery.
• Ensure effective and timely rollout of SITA services throughout the country, holding SITA accountable for timely service delivery.

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The report was adopted without amendments. https://pmg.org.za/tabled-committee-report/5592/

RICA Amendment Bill [B28-2023] Department response to public comments

The Chairperson said the Committee had received a briefing from the Department of Justice on public submissions to the Regulation of Interception of Communications and Provision of Communication-Related Information Amendment (RICA) Bill on 15 November. This Bill addressed concerns stemming from the amaBhungane Centre for Investigative Journalism case, where the Constitutional Court had declared certain sections unconstitutional.

The Committee was informed that the Bill served as an interim measure to rectify constitutional defects. The Department is currently engaging in consultations and plans to introduce the Bill to Cabinet by June next year.

Through the established process for public comments, the Committee had received three submissions on the Bill. Premium Ideas South Africa, Lawrence Mashava, and Jane Duncan, Professor of Digital Society at the University of Glasgow, provided comments.

The Department would respond to these comments in today's meeting.

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A B othaA, Legal Advisor, Department of Justice and Constitutional Development, said no comments had been received on Clauses 1, 5, 6, 8, 10 to 12. However, Jane Duncan had provided comments on Clause 2, which pertained to the insertion of Chapter 2A, covering designated judge (15A), review judge (15B), powers and functions of review judge (15C), and tenure of designated and review judges (15D). Lawrence Mashava had offered additional comments on 15D.

Further, Jane Duncan had submitted feedback on Clause 3, addressing the insertion of section 23A (disclosure that a person in respect of whom direction, extension of direction, or entry warrant was sought was a journalist or practicing lawyer). Clause 4, covering the insertion of section 25A (post-surveillance notification), also received comments from Jane Duncan. Additionally, Jane Duncan commented on Clause 7, which involved the insertion of section 37A related to data management, and on Clause 9 concerning the amended laws.

Premium Ideas South Africa (PISA) provided general comments on the Bill, particularly regarding SIM cards. Lawrence Mashava had commented on the referral of the Bill to the Joint Standing Committee on Intelligence. Lawrence Mashava and Jane Duncan shared their thoughts on the overall process of the Bill, and Jane Duncan provided a comment on Section 205 of the Criminal Procedure Act.

See attached for full response

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Discussion

Mr R Badenhorst (DA, Western Cape) raised concerns in his inquiry, emphasising that while the Constitutional Court relied on Parliament to draft legislation striking a balance between state security considerations and the rights of individuals targeted, it was disconcerting that the Department had rejected the introduction of a Public Advocate. This refusal was reflected in the feedback. He questioned whether the consideration of including a Public Advocate would be part of the future review of RICA, and if so, why it could not be addressed in the current version.

He stressed Parliament's responsibility to present the best possible legislation for upholding the rule of law, particularly in balancing state security and individuals' privacy rights. He suggested that the Committee should carefully consider whether rushing legislation to meet court deadlines was the most prudent approach. He expressed concern that the potential unforeseen consequences of including a Public Advocate would persist in the next draft of the RICA Bill in the next Parliament. He sought clarification on how these consequences would be mitigated.

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The Chairperson echoed Mr Badenhorst's concern regarding the inclusion of the Public Advocate, and stressed its consideration in the broader review process of RICA. She emphasised the Department's obligation to provide the research document to the Committee, highlighting that the deadline set by the Constitutional Court was 3 February 2024. To meet this deadline, the Committee aimed to finalise the Bill during the current week, allowing for its consideration in the plenary of the National Council of Provinces (NCOP) next week, before the constituency period.

The Committee planned to convene a meeting later in the week, possibly tomorrow, to scrutinise the Bill considering the research document.

Responses

Mr John Jeffery, Deputy Minister of Justice and Constitutional Development, clarified that the rejection of introducing a Public Advocate to assist designated judges extended beyond the Department, including the Portfolio Committee and the National Assembly. He emphasised that the consideration of a Public Advocate would be part of the broader review of RICA. The delay in this review was attributed to the lack of clarity, despite extensive research conducted by the Department, examining examples from other jurisdictions. The complexity of the concept has resulted in a lack of uniform approaches globally.

An outstanding issue pertained to the Public Advocate's main responsibilities and access to sensitive information from law enforcement, particularly in determining the individuals subject to communication interception. This complexity was also raised by Adv G Breytenbach (DA) during the RICA debate. The potential introduction of a public advocate raised concerns about unforeseen consequences, necessitating careful consideration in the context of a general review.

Deputy Minister Jeffery recommended sharing the research document, conducted by the Department, with the Committee.

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Approaching legislation required a meticulous process that involved wider consultation to ensure comprehensive review and evaluation, minimising the likelihood of unforeseen consequences. The Department emphasises the importance of thorough consideration and extensive consultations with experts and government officials during drafting Bills, particularly those relevant to the police and state security. This extensive process was designed to mitigate the risk of unforeseen consequences.

Drawing from the example of Ireland, where a Public Advocate was accepted and introduced, the Department conducted a review. However, it was discovered that using a public advocate was more complex than initially perceived. Recognising the critical nature of legislation related to intercepting communications for state security and law enforcement investigations, the Department underscored the need to avoid mistakes that could undermine the entire system.

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Deputy Minister Jeffery clarified that passing the Bill to the Joint Standing Committee on Intelligence (JSCI) was not under the Minister's jurisdiction -- it fell within the purview of the presiding officers of Parliament. He explained that while there was a process related to Bills going to the National House of Traditional Leaders, the concern of Adv Mashava about the JSCI was distinct. Unlike the National House of Traditional Leaders, the JSCI was composed of Members of Parliament, making it a suitable avenue for this Bill.

He emphasised that the Bill primarily involved administrative decisions by the designated judge, such as issuing interception orders and determining post-subject notifications. These decisions were administrative rather than security activities. The Chair of the JSCI had affirmed acceptance of the Bill.

In the history of the Justice Portfolio Committee, which originally handled RICA, there was no precedent for involving the Joint Standing Committee on Intelligence (JSCI). The Bill had faced no objections in the National Assembly plenary, and no JSCI member had raised concerns about its drafting. Therefore, Adv Mashava's assertion about the JSCI's involvement had been inaccurate.

It's crucial to clarify that the JSCI operated under the joint rules of Parliament, not those of an individual House.

The research document had been sent to the Committee secretary.

Ms Kalay Pillay, Deputy Director-General: Legislative Development and Law Reform, Department of Justice and Constitutional Development, highlighted findings from the Department's research. The evaluation of countries with similar surveillance systems revealed varying degrees of legislation stringency, with some jurisdictions having more robust privacy protections than South Africa in certain aspects. However, the use of a Public Advocate lacked uniformity globally. Broader consideration and public debate were essential when developing the new RICA Bill, which would be subject to public scrutiny and discussion upon release for comment.

The Chairperson thanked the Department and legal team for the input. She also thanked Members for participating in the meeting. The Committee would continue looking at the Bill tomorrow.

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The meeting was adjourned.