Statistics Amendment Bill: SARB, Information Regulator submission & response, deliberations

Meeting report

Opening remarks
The Chairperson welcomed the Deputy Minister in the Presidency and the South African Reserve Bank (SARB), Statistics South Africa (Stats SA), and Information Regulator. He noted that it was the 10th anniversary of the passing of former President Nelson Mandela.

The Chairperson noted the Committee would hear submissions on the Statistics Amendment Bill [B31-2023] from SARB, Stats SA and the Information Regulator. Parliamentary Legal Services would brief the Committee on the constitutionality of the Bill. The Committee would vote on the motion of desirability for the Bill and then engage in clause-by-clause deliberations on the Bill. He emphasised that it was important for Members to participate in the meeting.

SARB submission on Statistics Amendment Bill
Ms Shenaaz Meer, SARB Assistant General Counsel, highlighted that it was the mandate of the Economics Statistics Department to provide comprehensive economic and financial statistics and data in support of SARB’s constitutionally enshrined mandate of maintaining price and financial stability. SARB required access to information and enterprise-level data from organs of state, including Stats SA to monitor and mitigate risks to financial stability. It proposed three amendments to the Bill.

SARB proposed the inclusion of the definition of ‘Financial Sector Regulation Act’ to indicate the reference to the Financial Sector Regulation Act, 2017 (Act 9 of 2017) in Clause 1.

In Clause 2 inserting section 1A, it proposed the following change, “The provisions of this Act prevail where there is a conflict relating to the matters dealt with in this Act between this Act and the provisions of any other law, save for the Constitution, section 28(a) and (b) of the Financial Sector Regulation Act or any Act expressly amending this Act.” Organs of state are obligated to provide assistance and information to SARB for the purposes of financial stability. SARB periodically required information and enterprise level data that Stats SA may have access to. This amendment would ensure that there was alignment between the Financial Sector Regulation Act and this Bill.

SARB proposed the inclusion of a reference to section 1A in section 17 of the principal Act, “Despite any other law, save as provided in section 1A, no return or other information collected by Statistics South Africa…” and to insert the following after section 17(2)(a): “(a)(A) to authorised officials of the South African Reserve Bank.” This would ensure alignment with section 1A and ensure confidential information may be disclosed to authorised SARB officials, subject to the direction of the Statistician General (SG).

SARB emphasised the alignment of the Financial Sector Regulation (FSR) Act and the Statistics Amendment Bill to ensure that SARB could access enterprise level data required to protect, enhance and mitigate risks to financial stability.               

Discussion
Ms S Graham-Mare said her concerns on SARB’s access to information and if it would contravene the Protection of Personal Information (POPI) Act had been alleviated. She was comfortable with the changes being proposed.

Mr M Manyi (EFF) was unclear of the implications of SARB’s request. Currently, Stats SA was having problems because people felt that Stats SA was intrusive. Stats SA had explained that the information gathered was purely for its own purposes. Stats SA may become a funnel for people to be accessed in ways that they were unaware of. SARB wanted a backroom arrangement to officially have access to information from Stats SA. He suggested that SARB should go public and make their intentions clear about the use of information. He was concerned that SARB was requesting access to information that they had not paid for. SARB should be a co-sponsor as this would be evidence of a public relationship between SARB and Stats SA. He expressed his discomfort and anxiety about the SARB proposals.

SARB response
Ms Meer noted Mr Manyi’s discomfort with SARB’s proposals. The information that SARB wanted to acquire was not new or going through a backdoor, it was according to the SARB mandate to protect and maintain financial stability as provided for in the FSR Act. The proposal was not an attempt at a backroom arrangement because section 28 of the FSR Act stated that organs of state must provide such assistance and information to SARB and the Financial Stability Oversight Committee to maintain and restore financial stability. It was an obligation for organs of state to provide the information. The FSR Act meant that Parliament recognised the role of SARB in protecting financial stability. This provision was to align the FSR Act and the Bill. There was no other underlying motive outside of ensuring that SARB can continue its financial stability mandate.

Mr Michael Manamela, SARB Head of Department: Economic Statistics, that data sharing was not unique to South Africa. At international forums data sharing was regularly discussed. There are many risks in the financial systems. It was important to share data to pre-empt and prepare.

Mr Manamela highlighted the need to avoid duplication between SARB, Stats SA and the Department of Planning, Monitoring and Evaluation (DPME). These entities all had the same respondents and were collecting the same information. The attempt to avoid duplication would mean that the entities approached one source as a collective community. This was to alleviate the burden on respondents such as businesses and households. For example, SARB was currently working with Stats SA and National Treasury on collecting information on public entities that all three entities needed. This mechanism would strengthen cooperation amongst entities.

Mr Manamela said there were jurisdictions where the reserve bank was a core member of the national statistics system. SARB’s request was similar to the legislation in Portugal, where the Portugal central bank and other critical entities were part of the organisations given authority to have this role in the statistics community. What SARB was asking for was not unique. SARB needed this provision to fulfil its mandate.

Mr Manyi indicated that his question on co-funding had not been answered. If information was going to be shared, was SARB willing to finance some of the Stats SA operations.

Mr Manyi asked why SARB wanted this provision now. What had SARB been doing in place of this arrangement since the start of democracy.

Mr Manamela replied that SARB and Stats SA had a good working relationship. Currently, SARB was funding a project with Stats SA on the Residential Property Index. When required SARB did assist financially.

Mr Manamela said that the Statistics Act had been passed in 1999 and the FSR Act was passed in 2017. There would likely be variation in what the needs had been then and what the needs are now. The proposal was an attempt to align the Statistics Amendment Bill and the FSR Act.

Stats SA response on Statistics Amendment Bill
Mr Kenny Morolong, Deputy Minister in the Presidency, said that this Amendment Bill was the culmination of a process that commenced in 2014. He welcomed the comments made by SARB.

Deputy Minister Morolong said that the work of Stats SA was based on a number of approaches and principles, including its ability to defend the methodologies used to collect and disseminate data. It was based on the principle of confidentiality. South Africans were in the position to comply with Stats SA because the information was safe and would not be used by third parties. He welcomed the need for a more intensified approach between SARB and Stats SA. It would prove difficult for Stats SA if its work was to be shared with third parties.

Mr Risenga Malulekele, Statistician-General, indicated that the inclusion of a clause for data access by SARB officials in the Amendment Bill would compromise section 17(1) of the principal Act.

Mr Malulekele highlighted that section 17(2) referred to having to obtain written consent of the person/business where information was collected for it to be disclosed. Section 17(3) stated that the SG could, for statistical purposes, disclose to another organ of state data gathered in the course of a joint collection undertaken with that organ, on the condition that the name, address and any other means of identification of the respondent was removed.

Mr Malulekele said that SARB’s proposal could be considered through the insertion of section 20A into the principal Act, which allowed for regulations to be made on protocols and guidelines on data, access and confidentiality. Stats SA and SARB had signed a Memorandum of Understanding (MoU) in 2020 which allowed for data sharing within the mandates of both organisations.

Mr Manyi commented that the SG had confirmed and validated his concerns. Stats SA worked on the principle that data and information collected would only be used for the purpose it had been collected. For the SARB proposal to be transparent, Stats SA had to be clear to respondents that the information collected would be shared with SARB.

Information Regulator submission on Statistics Amendment Bill
Mr Nsumbedzeni Nemasisi, Information Regulator Executive: PAIA, provided the sections in the Statistics Act that provided for confidentiality and non-disclosure of documents or information collected by Stats SA. Section 17(2) gave the SG discretion to disclose information collected for statistics.

Mr Nemasisi referred to PAIA given SARB’s request to allow it access to certain information. The Constitution provides that everyone has the right of access to any information held by the state and PAIA is enacted to give effect to this right. A public body, such as SARB, is not classified as a “requester” under PAIA for the purposes of accessing records held by another public body (Stats SA). As a result, SARB could not use PAIA to request access to records held by Stats SA. PAIA provided that if a person required access to a record of a public body containing confidential information, every part of the record which did not contain confidential information could be disclosed.

Mr Nemasisi noted that section 3(2)(a) of the POPI Act provides that POPIA applies to the exclusion of any other legislation that regulated processing of personal information and that is materially inconsistent with provisions or objects of the Act. POPIA provides eight conditions for lawful processing of personal information, which regulate the manner in which personal information must be processed. De-identified personal information was not personal information under POPIA. Section 15(3)(e) provides that further processing of personal information is compatible with the purpose of collection if the information is used for historical, statistical or research purposes and identifiable information would not be published.

Section 17 of the Statistics Act protects the confidentiality of the information or statistics of an individual or juristic person. Personal information can be disclosed according to section 17(2) and 17(3)(a), if the information is de-identified. The Statistics Act provided for the circumstances under which information may be disclosed but did not provide a process for how an organ of state could request access.

The disclosure of personal information to SARB should only be for the purpose of performing its mandate and had to be subject to the de-identification of personal information.

Discussion
Mr Manyi said the Regulator’s submission was consistent with the anxiousness of the SG and himself. The level of granularity requested by SARB was uncomfortable. He was happy to cooperate as a South African citizen if SARB came directly to him and requested information. He rejected SARB’s request. If SARB wanted the information, it should get it itself. SARB’s proposal was introducing complexities, whereas a key priority should be to reduce complexities. SARB was requesting an increase in complexity that would make Stats SA’s work very difficult. If Stats SA agreed to SARB’s proposal, they would be obligated to highlight it as part of their public relations information and inform respondents that the information collected would be shared with SARB at a granular level. Parliament should not use its power to increase complexities and create vulnerabilities. SARB should not make use of the proposed mechanism.

SARB response
Mr Manamela noted the concern that SARB was proposing a backdoor agreement. If the proposal was included in the Bill, it would be transparent. There was no attempt to hide anything. All South African should be aware of the process. There would be protocols on confidentiality.

Mr Manamela emphasised that SARB proposal stated that the decision to grant access was at the SG’s discretion. No blanket access to information was requested by SARB. The SG would decide if the request for information was rational. There was no intention to access confidential information and make it public. SARB would not publish confidential or individuals' data.

Mr Manamela agreed that data could be anonymised. SARB’s proposal was about being transparent to South Africans, which would provide more confidence in the system than for citizens to hear about a process after the fact.

Mr Manamela said that respondents were fatigued by constant requests for information. Respondents were likely to prefer a single source contact by public institutions and the re-use of information, rather than constantly supplying the same information to various institutions. The duplication of information collection was a waste of resources and caused fatigue amongst respondents.

Mr Manamela said that departments and state organs could not be equated with the functions of SARB which had to provide information to inform its core mandate. He highlighted the example of Portugal that had been shared previously.

Mr Manamela said that SARB had signed an MoU with Stats SA in 2020. The MoU indicated that data-sharing protocols needed to be developed. These protocols were still under development. The key question was what in the protocols would supersede what was in the Bill. Both institutions had good intentions about sharing data. If there was no provision in the Bill, would the protocols be constrained? The proposal provided the SG with discretion and there would be proper regulations on data exchange to generate confidence in the system.

The Chairperson asked if SARB, based on the other inputs, was firm in its proposal or was it persuaded away from its proposal. Did SARB need more clarity?

Ms Meer replied that the SARB proposal was a request for alignment between the two pieces of legislation – the FSR Act and the Statistics Amendment Bill. SARB’s request was entrenched in primary law in terms of the obligation of organs of state to provide SARB with information required for the purpose of financial stability.

Ms Meer was pleased with the Information Regulator submission, especially on personal information. Personal information was the greatest concern. SARB wanted to balance the intrusion of personal information with the functions of an institution such as SARB. Section 3(3) of POPIA stated that POPIA must be interpreted in a manner that does not prevent any public or private body from exercising or performing its powers, duties and functions in terms of the law as far as such powers, duties and functions relate to the processing of personal information, and such processing is in accordance with this Act or any other legislation as referred to in sub-section 2 that regulates the processing of personal information.

The alignment request was to enable SARB to exercise its public function to protect financial stability.

Ms Meer appreciated Mr Nemasisi’s reference to clauses in POPIA on further processing. Further processing needed to be compatible with the purpose of collection. The information may be collected by Stats SA, but SARB required it for the purpose of financial stability. Mr Nemasisi stated that information could be used of historical, statistical or research purposes, not published in an identifiable form. This was critical for SARB. SARB may request granular data for the purpose of statistics required for determining how to protect and maintain financial stability. When this data is published, it would not be in an identifiable format, however SARB required the granular data for the purpose of statistics to protect financial stability. SARB would comply with whatever was required, including the security and organisational measures required by POPIA.

Ms Meer emphasised the importance of not creating duplication of information requirements to create a simpler, more efficient system to enable these institutions to carry out their mandates and functions.

Ms Meer reiterated that the protocols went far, but it had to be ensured that the protocols did not supersede the primary law which could inhibit SARB from performing its functions. Therefore, SARB’s request was to ensure that clause 1A aligned with section 28 of the FSR Act. This was the crux of the SARB proposal.

The Chairperson said that the SG and Information Regulator had been given the opportunity to respond to the SARB submission before Members shared their views.

Stats SA response
Statistician-General, Mr Maluleke, said that the DDG would review the four sections that allowed Stats SA to share information with SARB, without specifically referring to SARB.

Ms Yandiswa Mpetsheni, Stats SA Deputy Director-General: Population and Social Statistics, noted that the SG had discussed section 17(2) and 17(3) on the sharing information.

Ms Mpetsheni highlighted clause 6 amending section 7, which stated that the SG may for research purposes give data access to entities including SARB.

Ms Mpetsheni highlighted clause 11 inserting section 20A, which referred to the regulations on data access. These sections highlighted ways in which SARB could access information, without it being explicitly identified.

The Chairperson asked if this meant that there would be no issue if SARB was not explicitly mentioned. Under the existing provisions would SARB still be able to fulfil its mandate?

Mr Maluleke said that in terms of organs of state or National Statistics System (NSS) members or any other agency that Stats SA worked with, there was no specific agency that stood out. In the eyes of the Statistics Act, all agencies or entities were equal, no entity was prioritised over another. For example, when information was collected about the President, information was collected from the President as an individual not as the President.

Mr Maluleke said that the four highlighted clauses – the new addition in section 7; section 17(2), 17(3) and 20A – made provision for SARB and any other organ of state to access information. In the case of legislation, a law that can stand the test of time was crucial so that it was not necessary to make frequent amendments. If SARB was explicitly mentioned, it could open the door for other entities to push to be included in this manner. These four clauses allowed Stats SA to share information with organs of the state.

Mr Maluleke said that where the MoU protocols were not as strong, they should be strengthened to harvest and ride on the back of the four clauses to ensure that they did not impede the work of SARB. Stats SA felt that the four clauses would not impede the work of SARB and would uphold confidentiality. The public perception of how far Stats SA could go in handling the data collected was critical.

Information Regulator response
Mr Nemasisi said that legislation provided for the disclosure of information. POPIA allowed for an agreement between entities to share information, but certain measures had to be put in place. If there was a challenge to amend legislation, he suggested that SARB and Stats SA consider what had been agreed on in the MoU to ensure that where personal information was going to be shared, there would be de-identification and measures in place to ensure sufficient security to protect personal information. South Africa has experienced an increased number of security compromises. Putting sufficient security measures in place had to be prioritised so that where personal information was collected and processed by another entity to perform its mandate, the information was protected.

SARB counter proposal
Ms Meer noted the responses by Stats SA, the Information Regulator and Committee members, and suggested a counter proposal. SARB would be willing to drop the proposal on section 17, but only if the proposed amendment for clause 1A was retained. Clause 1A did not specifically refer to SARB but recognised section 28(a) and (b) of the FSR Act which was the SARB mandate to protect financial stability. She was comfortable dropping the section 17 amendment, if the clause 1A amendment and the FSR definition was retained.

Stats SA response
Ms Mpetsheni replied that the inclusion of clause 1A would still be a problem for Stats SA as it might open the door for other entities and could be critiqued for prioritising SARB over other entities. Clause 1A stated that, save for the Constitution, the Statistics Act would prevail. SARB was requesting that the FSR Act be included. She did not think that this proposal would work. Data would still be shared in the ways that had been previously described. She was adamant that the FSR did not need to be specifically mentioned.

Discussion
Mr Manyi said that SARB quoted Mr Nemasisi opportunistically and expediently. The quotation that had been used by SARB for their own purposes applied more to the agent whose primary function was to execute its mandate. SARB could not want to execute its mandate and place all other agencies under pressure, when SARB was not being prevented from getting the information directly by itself. SARB’s need to collect information had nothing to do with Stats SA. SARB’s request for granular information compromised Stats SA’s primary principle of collecting information in a manner that was non-threatening to people. It compromised Stats SA’s position that it was an independent organisation. It frames Stats SA as an intelligence agent over other organs of state.

Mr Manyi was opposed to the SARB submission. SARB should get the information through the mechanisms that had been described. There should be no special arrangement specific to SARB or any tweaking. His intention was to guard the credibility of Stats SA. SARB had engaged in rand manipulation. People should not be subjected to institutions whose primary mandate was to protect the currency but were failing to do this. SARB would contaminate the credibility of an innocent Stats SA. He did not support the proposal and stated that SARB should do its own work.

Ms C Phiri (ANC) agreed that the existing mechanisms and clauses highlighted by Stats SA were sufficient. The SG had the discretion to provide SARB with information when required. The SG indicated that information was exchanged between Stats SA and SARB. She agreed that SARB could not be singled out and specifically mentioned, while others were not. This would open the door for other entities to request the same treatment.

Mr Manamela noted the responses. He asked the Committee to reflect on SARB’s view that there should be alignment between the FSR Act and the Statistics Amendment Bill. Organs of state were obliged to provide information needed to fulfil SARB’s mandate. He suggested that a legal view was needed on the alignment of the legislation.

The Chairperson welcomed the contributions made by all the presenters. The opinions would be valuable when the Committee engages in deliberations. It was important the Bill did not undermine the Constitution and open up loopholes. The Bill should enable all organs of state and institutions, including SARB, to fulfil their mandate. It was not the Bill’s intention to inhibit the mandate of any institution. The de-identification of personal information was critical moving forward. The Committee’s purpose was to ensure that there was overriding cooperation across all of government. He noted that SARB would accept the rejection of the section 17 amendment, if the clause 1A proposal was accepted. He encouraged further engagement on the matter to come to a resolution that was appropriate for all parties involved.

Parliamentary Legal Services briefing on the constitutionality of the Bill
Ms Phumelele Ngema, Parliamentary Legal Advisor, stated that SARB was a constitutional institution and organ of state. In general, SARB was covered in the Statistics Amendment Bill. The amendment sought by SARB invoked National Assembly Rule 286 which dealt with the Committee processing of a Bill. The amendment of section 17 was not included in the Amendment Bill as introduced. Therefore, Rule 286(4)(b) would require the Committee to obtain the permission from the National Assembly to extend to scope of the Bill.

Ms Ngema indicated that the Bill was constitutional. It met all constitutional and drafting requirements.

The Chairperson appreciated the explanation of the required process in front of all the entities.

Motion of Desirability
Ms Nomaxhosa Mooi, Committee Secretary, explained that the motion of desirability was in line with NA Rule 286(4)(i) which she read out.

The Chairperson invited Members to vote if the Bill was desirable to proceed with.

The Committee voted that the Bill was desirable to proceed and the motion of desirability was passed.

Clause-by-clause deliberations
Mr Julius Ngoepe, Committee Content Advisor, read out the clause and Members made inputs or comments after a clause had been read.

Clause 1 – Amendment of section 1 of Act 6 of 1999
Ms Graham-Mare referred to section 1(a) where an entity was defined within the National Statistics System (NSS). Previously the Parliamentary Legal Advisor had stated that 'organ of state' here adhered to its constitutional definition. She was concerned that an organ of state that fell within the NSS did not mean every organ of state. There was a lack of clarity on the definition of an organ of state within the NSS versus an organ of state outside the NSS. There needed to be a clear definition to ensure an awareness of who was responsible and who was not. Section 1(e) referred to other organisations and organs of state that did not form part of the entities within the state. She suggested that the organs of state within the NSS should be defined, so that when other organs of state were referred to (that were outside the NSS), it would be clear what organs of state were referred to. Organs of state that fell within the NSS had certain rights and responsibilities that other organs of state may not have.

Ms Ngema said that the definition for an entity within the NSS in section 1(d) was very clear. The concern about listing specific entities was that an entity could be left out. It is better to be concise in the definition rather than exhaustive. The definitions were inclusive and would cover all necessary entities.

Ms Graham-Mare was satisfied with the response provided.

The Committee accepted clause 1.

Clause 2 – Insertion of section 1A into Act 6 of 1999
The Committee accepted clause 2.

Clause 3 – Amendment to section 2 of Act 6 of 1999
The Committee accepted clause 3.

Clause 4 - Amendment to section 3 of Act 6 of 1999
Ms Graham-Mare read out and requested clarity on 4(b). Did this mean that organs of state were automatically required to report, without any form of partnership agreement or service-level agreement. She requested clarity on the role of organs of state versus other entities.

Ms Mpetsheni replied that all organs of state would be members of the NSS. An agreement would be entered into between Stats SA and other entities if they were not organs of state.

The Committee accepted clause 4.

Clause 5 – Amendment of section 4 of Act 6 of 1999.
The Committee accepted clause 5.

Clause 6 – Amendment of section 7 of Act 6 of 1999
Ms Graham-Mare referred to clause 6(c)(a) which stated "cause a population census to be taken in the year 2001". She asked if this could apply retrospectively to 2001 and whether it should be substituted with 2022 to legitimise what was being said. The census had not been taken in 2021 so the legislation would have been contravened.

Ms Graham-Mare said changing the census from taking place every ten years instead of five years was too long with nothing in between. She asked if an alternative ‘mini-census’ could be included in the legislation. The statistical data received through a census was required to make decisions by SARB and government, and it affected the equitable share allocated to each province. She was concerned by the 10-year gap and that an additional type of census should be included to address this gap. Alternatively, she suggested reviewing how to address the budget and resourcing of the Department so that a census could be done every five years. A 10-year gap would be very problematic for planning within the country.

The Chairperson replied about the 10-year gap saying that there were already community and household surveys. The SG had noted that there were initiatives in place to address the 10-year gap.

Ms Mpetsheni confirmed that there were many surveys in between the 10-year gap. Stats SA did not wait for the entire 10 years to get granular information at a local municipal level. Stats SA intended to introduce an additional survey, the Continuous Population Survey, which would provide Stats SA with more granular data every three years. She was uncertain if this should be included in legislation or if the practice was sufficient.

The Chairperson highlighted the question about 2001 and 2022.

Ms Mpetsheni replied that the census was done in 2001, and the next was meant to occur in 2021. If Stats SA used 2021 it would be out of sync. She referred to the legal advisors for comment.

Ms Graham-Mare noted that an implementation plan had to be done and that additional surveys should be included in the plan. It was important that the need for ongoing statistical data was recognised.

Ms Ngema said there was a valid point on the retrospectivity of 2001. It was existing legislation. The retrospectivity might not impact the legislation, as it would not change moving forward. It would not do any harm if the date was changed due to the discrepancies that had been highlighted. The critical aspect was that the census had to be done every 10 years. It was not necessary to indicate when the census started, as long as the legislation indicated the time period between censuses.

Mr Calvin Molongoana, Stats SA Executive Manager, agreed with Ms Ngema. The reference to 2001 was because the Statistics Act came into operation and at the time it was envisaged that the next survey would be done in 2001, a five-year gap from the previous census in 1996, and then post-2001 a 10-year cycle would be followed.

The Committee was satisfied with this response.

Ms Graham-Mare read out clause 6(l) saying she had a big problem with this clause as the SG’s powers were too broad here: "The Statistician-General must, for the purpose of producing
official statistics, have access to any data from any producer or entity within the NSS at no cost". There was a partnership agreement between NSS and entities other than organs of state. This should be the basis of the relationship and that this should define to what data the SG had access. The clause negated the partnership agreement by predetermining the scope of the information the SG had access to. There was a possibility that this could be unconstitutional because the data of a private organisation was intellectual property. This clause allowed for a form of expropriation without compensation of intellectual property.

Ms Mpetsheni replied that the clause had been included to allow Stats SA access the information it needed for the purpose of official statistics. For example, Stats SA received information from the Surveyor-General on rental properties that SARB was paying for and such information should be available to the SG at no cost. If the Committee had concerns about the phrasing of the clause, the phrasing could be changed. The information requested would be used for official statistics purposes.

Mr Manamela explained that SARB was currently paying a private company to access data from the Deeds Office, which was given to Stats SA. SARB was funding this transaction because SARB had an interest in the data in terms of the Residential Property Index. Public entities and state organs could not be providing this service at a cost. He expressed his support for the clause as is.

Ms Ngema noted the concern. It could be argued that the provision may not necessarily amount to expropriation without compensation. The clause referred to the ensemble of statistical organisations and units in South Africa that in any case jointly collect, process and disseminate. There was an existing understanding within that system. Stats SA has explained that the information was collated and did not include a cost. If this was not explained, it would be necessary to reconsider the use of “at no cost” because it could provoke bigger issues. This concern needed to be clarified in order for the Committee to make a decision.

The Chairperson noted that the use of “at no cost” was an emphasis. He encouraged further discussion on the matter.

Ms Graham-Mare said that her concern was that the entities within the NSS that were not organs of state would have already signed a partnership agreement or a service-level agreement. She felt that the clause superseded the agreement that had been signed and took away from what had been agreed to by saying that the SG had access to any data from any producer or entity at no cost. She suggested an insertion within the framework of the partnership agreement. This would cover the concern and limit the access to data to what had been agreed on in the partnership agreement. The partnership agreement could then state that the terms of the agreement could be changed by mutual consent. This would eliminate the ability of the SG to access any information from an organisation. This was a way of protecting intellectual property and entities against work that they had invested money into being appropriated at no cost by the SG. She reiterated her suggestion on an inclusion in the partnership agreement.

Ms Mpetsheni agreed that an inclusion could be made in the partnership agreement. In the MoU there was a place for financial implications. This could be negotiated at the level of the agreements signed between Stats SA and NSS entities. Stats SA would consider the change of either removing the “at no cost” or the inclusion in the MoU.

The Chairperson noted that this would not affect the performance of Stats SA.

Ms Ngema said that based on the response of Stats SA there would be an amendment to the clause.

The Committee decided to flag the item until a drafting change was made to clause 6(l).

Clause 7 – Amendment of section 13 of Act 6 of 1999
The Committee accepted clause 7.

Clause 8 - Amendment of section 14 of Act 6 of 1999
Ms Graham-Mare read out clause 8(c), specifically the addition of (13)(a). (13) In order to promote statistical co-ordination among entities within the NSS, the Statistician-General must—
(a) develop and implement a statistical system to be known as the NSS. The NSS was a body and the clause referred to a system called NSS. This could create confusion because NSS was being used in two different contexts – as a body and as a system.

Ms Mpetsheni noted the confusion. The definition of NSS referred to an ensemble of collectors, processors and disseminators of information. The NSS was therefore both a system and a body. Stats SA would find a way to differentiate the two and prevent the confusion.

Ms Graham-Mare was satisfied with this response.

Ms Graham-Mare referred to clause 8(c) which added section 14(15) (page 6, line 5). The clause noted six structures that needed to be instituted by the SG. She was concerned that there was no budget allocation for instituting these structures such as the Section 14(15)(b) working groups of technical experts. This was a legislative requirement and might create a problem due to budgetary constraints. She was concerned at the number of items that had to be done, when there was not a budget for the census.

Ms Mpetsheni replied that the bodies were already in existence. In the reporting on the Sustainable Development Goals (SDGs), Stats SA needed to have these technical working committees. There was no need for further budgeting to establish these bodies.

Ms Graham-Mare accepted this response

The Committee accepted clause 8.

Clause 9 – Amendment of section 15 of Act 6 of 1999
Ms Graham-Mare said that the deletion of “other than a private dwelling” was not suitable as it affected the constitutional right to privacy. The only way this could be justified was if the importance of the limitation was greater than the right. Given South Africa’s crime rate and gender-based violence (GBV), a woman should not be denied the right to prevent access to her dwelling by strangers. The clause stated that anything therein could be inspected. This had a major impact on the right to privacy, which protected people from having their person, home or property searched. The principal Act had qualified this stating with a warrant or with consent. This meant that if there was no consent, a warrant could be sought. The warrant was in chambers, which meant that the individual did not have the opportunity to defend the warrant. The principal Act allowed for inspection at night, if justifiable and necessary. How could a private dwelling be included in this clause. The warrant allowed entry even if the property owner was not present. This could not be allowed for a dwelling. She strongly recommended that “other than a private dwelling” not be removed. This would be unconstitutional and carried a threat of danger, especially to women who many live alone.

Ms Mpetsheni said that “other than a private dwelling” was to be removed, because when samples were drawn for household surveys, a sample of dwelling units was drawn. This meant that the field officers had to go to the specific dwelling units to perform the household surveys. When excluding private dwellings, the job of Stats SA became more difficult. Stats SA needed to access private dwellings for the census and other surveys.

Mr Molongoana agreed with Ms Mpetsheni. The sampling frame focused on households. Stats SA would prefer to collect information from members of the public within the confines of their own comfortable space. The transition into digital collection, saw the introduction of an additional quality assurance mechanism in that a questionnaire could not be opened on a tablet unless the field worker was within a certain distance from the house. The Bill did not intend to infringe on the privacy of private households, but rather to emphasise the importance of household members answering the questions. Additionally, Stats SA had a field worker verification system where members of the public could visit the Stats SA website and verify the field workers to ensure that they were authentic staff members of Stats SA. If members of the public were not comfortable with a worker entering the household, the public was not obliged to let the field worker into the house, the survey could be done outside of the house if requested. This was intended to give comfort to members of the public by not allowing workers into their house.

Ms Ngema compared the Constitution's section 14 right to privacy against section 36 limitation of rights to understand if the limitation was justified and if it was legal. Section 14 stated that everyone had the right to privacy. The principal Act had made an exclusion of private dwellings in stating “other than a private dwelling”. Stats SA had highlighted challenges as a result of this. Access should be enabled by the removal of “other than a private dwelling”. This meant that even in private dwellings, where Stats SA had been excluded, the exclusion would not be a prohibition. However, there were legal instances to follow to ensure that the right to privacy was protected. The Constitution's section 14 could not be overridden by access to the dwelling.

Ms Graham-Mare said that the clause was in contravention of section 14 of the Constitution. The clause did not stipulate that there was a process that needed to be followed and it did not allow for withholding of consent. In the principal Act, it spoke to Stats SA getting a warrant without an individual being able to defend the warrant. The principal Act also indicated that Stats SA could enter the premises without permission and without the individual being present. The limitation was not sufficiently warranted in terms of the collection of statistical data. She noted the comment that the survey could take place outside but the clause did not specify this. The clause indicated that Stats SA had the right of access to an individual’s house without consent. This was a big issue when considering the high rate of crime. There was a vetting process for field workers, but ultimately these were members of the community. There could be no guarantee that a person that had been appointed as a field worker was not a criminal. This was concern in terms of section 14 and the right to protection of the security of your person. The private dwelling exclusion should remain. Government should not have the right to override a person’s right to privacy in their house as it was not a criminal matter, it was an administrative issue. A warrant should not be able to override the right to privacy in a matter that was not criminal.

The Chairperson said that all rights were limited in terms of section 36 of the Constitution. There was a need for balance. When making a law, to make the law prescriptive could create significant challenges.

Ms Ngema said section 15(2)(2) of the principal Act indicated that the warrant was issued by a magistrate or judge of the High Court. Unless these officials were satisfied with the warrant, it would not be granted. There was no way that a premises would be entered without either the individual's consent or a warrant. If a person refused consent, a warrant from the court could be sought. This indicated that there was judicial oversight. The court process normally allowed for both parties to be heard. The existing provision outlined the process that had to be followed. She felt that the drafting had taken this into account.

Ms Graham-Mare corrected Ms Ngema and said that the warrant was applied for in chambers. This meant that it did not have to be defended and Stats SA could go into chambers to request a warrant, similar to a criminal warrant to inspect a house. The person who refused consent did not get the right to defend the reasons for withholding consent. This was a major issue. The warrant allowed Stats SA access and the right to inspect anything in the premises, and the individual had no opportunity for refusal. She was adamant that this was a major violation of the right to privacy and security. This needed to be addressed. The Committee could not support the clause unless the exclusion of a private dwelling was retained.

The Chairperson noted Ms Graham’s concerns. The issue would be flagged for further deliberation.

Clause 10 – Amendment of section 18 of Act 6 of 1999
The Committee accepted clause 10.

Clause 11 – Insertion of section 20A into Act 6 of 1999
The Committee accepted clause 11.

Closing remarks
The Chairperson indicated that the clause-by-clause deliberations had been concluded and there had been robust discussion. He noted Ms Graham-Mare’s strong concerns about clause 9.

Mr Ngoepe pointed out that there were proposed amendments that Stats SA had agreed to consider. Time would be allowed for this. Thereafter, Stats SA would present the Bill including the proposed amendments for the Committee to adopt. This would likely happen towards the end of January or beginning of February 2024.

Ms Ngema said that there were three clauses that had been flagged – clause 6, 8 and 9. Clause 6 and 8 could easily be resolved by Stats SA and the legal advisors, however clause 9 required the Committee’s resolution and guidance. Was the Chairperson suggesting that in the next meeting, clause 9 could be addressed.

The Chairperson said that discussions over clause 9 had been exhausted for today. Ms Graham-Mare’s views on the matter were noted and he was hopeful that a resolution could be reached. He was satisfied that there were checks and balances in place to avoid Ms Graham-Mare’s fears and concerns. Further deliberation on the clause would be necessary.

Ms Ngema noted this.

Ms Graham-Mare requested to make a written submission on the matter to the Chairperson and the legal advisors for consideration.

The Chairperson accepted this.

Ms Ngema and Ms Mpetsheni agreed to this.

The Chairperson thanked everyone for their engagement. The legal advisors would await Ms Graham-Mare’s suggestion and suggested that it be done as soon as possible to address the issue and promote the movement of the process.

The meeting was adjourned.