Regulation of Interception of Communications & Provision of Communications-Related Information Amd Bill; Practical Guidelines on

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Justice and Correctional Services

22 May 2006
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Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
23 May 2006
REGULATION OF INTERCEPTION OF COMMUNICATIONS AND PROVISION OF COMMUNICATIONS-RELATED INFORMATION AMENDMENT BILL; PRACTICAL GUIDELINES ON PROTECTED DISCLOSURE ACT: BRIEFING AND DELIBERATIONS

Chairperson:
Ms F Chohan-Kota (ANC)

Documents handed out
Regulation of Interception of Communications and Provision of Communications – Related Information Amendment [B9-2006]
Briefing by Department on B9-2006
Press Statement about Public Hearings on B9-2006
Protected Disclosures Act: Practical Guidelines for Employees – Part 1
Protected Disclosures Act: Practical Guidelines for Employees – Part 2

SUMMARY
The Committee was briefed on the Regulation of Interception of Communications and Provision of Communications-related Information Amendment Bill and the Practical Guidelines for Employees on the Protected Disclosures Act. The latter served as a practical guide in layman’s terms to the protection offered to employees who "blew the whistle" on illegalities or irregular activities in the workplace. It ensured that no employee who had made a protected disclosure could be made to suffer occupational detriment for making the disclosure, and explained the remedies available and the institutions to which the disclosure can be lodged.

The Committee called for the guidelines to be provided to all employees whether in the employ of the state or not. The Department of Public Service and Administration and the media should assist in its distribution. The Democratic Alliance was concerned that the delay in providing the guidelines deprived many whistleblowers of the protection afforded by the Act. It was proposed that the contact details in the guidelines include institutions such as the Commission on Gender Equality and the South African Human Rights Commission

The main object of the Regulation of Interception of Communications and Provision of Communications-related Information Amendment Bill was to amend Sections 40 and 62(6) so as to spell out more clearly what information was required to be recorded and stored. It required service providers to keep updated information about SIM-cards and cellular phones. This placed an obligation on the telecommunication service provider to obtain the particulars of the SIM-card, the cell phone and the purchaser’s personal details when selling a cell phone. It imposed a significant fine on a telecommunication service provider who failed to comply with the registration requirement, and imposed a fine or imprisonment of up to one year on any customer who failed to comply with the provisions of the Bill. The provisions reflected in the Bill were proposed by the telecommunication service providers themselves.

The Democratic Alliance was concerned that the telecommunication service providers would not be able to implement the registration requirements, and whether the telecommunication service providers’s views had been incorporated in the Bill. Clarity was sought by the Committee on the roles of the vendor and the registration officer, whether the registration process would result in an undue delay in activating the cellphone and the concern was expressed that the bureaucracy created might pose problems in the rural areas. It was explained that the Bill applied both to pay as you go customers as well as contract phones, as well as to persons whose cellphones had been lost, stolen or broken.

The deadline for submissions on the Bill was 29 May 2006, but the general public would still be able to forward submissions beyond the deadline.

MINUTES
Introduction by Chairperson
The Chair noted that after that day's briefing, Members would then have a few days to go through the practical guidelines. She encouraged Members to draft proposed amendments to the guidelines which they could then forward to the Chair. Mr Henk Du Preez, Legal Drafter from the Department, would then go through those proposals with the Committee.

It was very important that the Committee passed the Regulation of Interception of Communications and Provision of Communications–related Information Amendment Bill (the Bill) as well as the Practical Guidelines on the Protected Disclosures Act as soon as possible.

Mr Lawrence Bassett, Chief Director of Legislation: Department of Justice, informed the Committee that the deadline for passing the Bill was 30 June.

The Chair asked Mr Bassett to check the cycle times of the NCOP, because this Committee would still have to forward the Bill to the NCOP before 30 June.

Protected Disclosures Act: Practical Guidelines for Employees
Mr Du Preez explained that the need for the legislation was first recognised in 1998 via the then Open Democracy Bill, which contained an entire chapter on the protection of whistleblowers. At that stage Parliament was of the view that it would not be appropriate to include a chapter on the employer/employee relationship in that Bill. The original chapter in that Bill was drafted by this Committee, and was subsequently enacted in a separate piece of legislation entitled the Protected Disclosures Act.

He stated that pages 19 to 23 of the Practical Guidelines document reflected the contents of the Act, which he read out to the Committee.

Section 1 was the definitions clause. Section 2 reflected the objects of the legislation. Section 3 confirmed the principle that no employee who has made the protected disclosure referred to in the legislation could be made to suffer occupational detriment for making the disclosure. Section 4 outlined the remedies available to the employee who had suffered occupational detriment after making the protected disclosure. Sections 5 to 9 was the actual gist of the legislation and contained the procedures that must be following when making a disclosure of irregular or unlawful conduct in the workplace, as well as the protection offered.

Section 10 gave the Minister power to issue regulations after consultation with the Minister for Public Service and Administration. This was important because no regulations currently existed because there had not yet a been a need for them. Section 10(4)(a)-(c) were important provisions. Section 10(4)(a) required an explanation of the provisions of the Act to be provided to employees, which required regulations. The aim was to provide a quasi-layman’s guide to the Act to ensure a better understanding of the Act by all employees. Section 10(4)(b) required the guidelines to be approved by Parliament and Section 10(4)(c) stated that all organs of state must give give copies of the guidelines to all their employees.

Practical Guidelines
Mr Du Preez explained that the actual Draft guidelines were diivided into four parts, as reflected in the documentation. Part I explained the purpose and provisions of the Act, It made it clear that it did not matter when the impropriety took place, as long as the disclosure was made after commencement of the Act in 2001. It explained that the protected disclosure could be made in five defined manners: to a legal representative, the employer, a Minister or MEC, a specified person or body or to any other person under certain circumstances.

Part II is was essentially Section 10(4)(a) and provided the detailed descriptions of the remedies and procedures available to the employee in the various relevant pieces of legislation, which included the Public Service Act, the Defence Act and the South African Police Services Act. It detailed both the direct and indirect remedies available to the employee.

Part III contained the important contact information of persons or bodies to whom the protected disclosure could be made, and included the Auditor-General and the Public Protector.

Part IV is provisions of Act itself and was contained in pages 19 to 23, as explained earlier.

Discussion
The Chair reminded Members that the idea behind the practical guidelines was to ensure awareness of the Act in a practical way, and to ensure that the Act was accessible to all employees. Even though the Act currently stipulated that the guidelines must go to all employees of all organs of state it became clear to the Chair that they must be provided to all employees, whether in the employ of the state or not.

Mr Du Preez replied that when the Department presented the Draft guidelines to the Minister, she was advised that they should be widely distributed. The Department intended to make the guidelines available on its website. It would possibly be combined with a brief media exercise to alert the public to the guidelines on the website.

The Chair was of the view that the Department of Public Service and Administration would be interested in the distribution of the guidelines. It was important that the guidelines be distributed as widely as possible because it was an important piece of legislation, for employees in the private sector as well. She believed the guidelines were very well written.

Ms S Camerer (DA) was curious as to why it took the Department five years to produce the practical guidelines. The DA had been documenting all the whistleblowers who had lost their jobs in the interim, despite the legislation.

The Chair disagreed with Ms Camerer and stated that that did not mean that the Act was not being implemented because of the absence of the guidelines, because the operation of the Act was not dependent on them. It was not because no protection at all was being offered to whistleblowers over the last five years. The practical guidelines served solely to enhance the effectiveness and the knowledge employee had about their rights, and they merely reflected what was already contained in the Act.

The reality was that there were also many employees who made disclosures simply because they wanted to get back at their employers, and did it out of spite. It was for that reason that the Act made it clear that no employee can use the provisions of the Act to benefit himself, and must not hurt others when making the disclosure. The Act therefore will not cover every single person who purported to be a whistleblower.

Mr Du Preez responded that the Department had prepared a working document which it circulated in 2000. However the Department had to consult widely and it thus had to speak to the Directors-General of all the national departments. The Department then received comments from them and the first working draft mainly focused on the first requirement of guidelines, that is the explanations of the provisions of Act.

A second draft was then prepared but at that stage one of the government departments withdrew its comments and requested an extension of the original deadline, which was granted. That government department’s final comments were received, considered, and the Minister was then approached. Unfortunately that process did not come to fruition. At that point the elections were also looming and the decision was taken to keep the guidelines in abeyance until both the Minister and the Minister of Public Service and Administration could be briefed properly, which has been provided. The Minister of Public Service and Administration then submitted comments which required a redraft of the Department’s guidelines. Another round of consultation had to be conducted, which has been completed. The Minister finally approved the final guidelines on 18 April 2006.

Mr S Swart (ACDP) stated that it was unfortunate that the guidelines took so long to draft, but agreed with the Chair that the protection for whistleblowers had always been there in the Act. It was important that the media created awareness of the Act and the guidelines. A way to make it far more known to employees must be identified. He agreed that the private sector must take up that awareness campaign as well. He welcomed the guidelines because they provided a practical procedure.

The Chair agreed. She stated that the Department of Labour and the organised labour factions might be able to assist the distribution of the guidelines.

Imam G Solomon (ANC) stated that "disclosure" as defined was quite broad and could include sexual harassment or racism or gender discrimination. He was therefore of the view that the contact details in Part III of the guidelines must include institutions such as the Commission on Gender Equality and the South African Human Rights Commission.

Mr Du Preez replied that the contact information currently provided in Part III was primarily due to Section 6 of the Act. He stated that those contact details could however be added.

The Chair encouraged Members to further consider the guidelines and the Act, and to investigate whether everything was covered. She stated that the Committee would aim to pass the guidelines next week.

Regulation of Interception of Communications and Provision of Communications-related Information Amendment Bill
The Chair noted that at the time the principal Act was being considered by the Committee, great concern had been expressed about the kind of information required for the registration of cellphones. This Amendment Bill merely ensured that any compromises that had been reached between the telecommunication providers, the Department and the law enforcement agencies would ensure the effective implementation of that portion of the legislation.

Mr Lawrence Bassett introduced Ms Botha and Mr Robertse from the Department of Justice, who had been working on the implementation of the principal Act since 2002, and who had built up significant experience on the subject. Mr H Smuts was also present, representing the State Law Advisors.

Ms Botha thanked the Committee for the opportunity to address it. She stated that it was a highly technical Act, but hoped that her input would clarify the amendments. She explained that the purpose of the Bill was to provide for the electronic registration of all cellphones and SIM-cards by moving away from the current from paper-based system. The Bill proposed that a person would not have to update the particulars of his cellphone and SIM-card if he sold it to his family member. It places an obligation on the telecommunication service provider to obtain the particulars of the SIM-card, the cellphone and the purchasor’s personal details when selling the cellphone. The Bill proposed a fine on telecommunication service provider who failed to comply with the registration requirement, and imposed a fine or imprisonment on any customer who failed to comply with the provisions of the Bill.

In conclusion she stated that the Act would come into operation on a date to be determined by the President. She informed Members that the provisions reflected in the Bill were proposed by the telecommunication service providers themselves.

Discussion
Ms Camerer asked whether the mobile service providers actually had the necessary capacity to provide that administrative function. The DA had expressed serious concern with the practical implementation of the current Section 40 in the principal Act, and did not want history to repeat itself.

The Chair disagreed with Ms Camerer. She stated that the DA was wrong even then when it questioned whether Section 40 could be implemented. She informed the Committee that when she was in India last year she was able to purchase a SIM-card and have it activated within 15 minutes, and the vendor had to take down all the information currently proposed by the Bill. She believed that if it could be done as efficiently in the most rural part of India, there was no reason why it could not be done in South Africa. She was thus not entirely convinced that Section 40 in the principal Act was not implementable. She agreed that the benefit of the Bill was to ensure that all the information was centralised.

Ms Camerer pressed several times for an answer as to whether the views of the telecommunication service provider had been secured, and whether they approved of the amendments.

The Chair repeatedly assured Ms Camerer that the views of the telecommunication service provider would be heard during the public hearings stage.

Mr L Landers (ANC) sought clarity as to the point at which the vendor was expected to notify the telecommunication service provider, under the proposed Section 40(5)(d), and where that notification would take place. He asked how long it would take to secure that information, and whether it would take a long time to activate the cellphone.

Mr Robertse replied that the vendor would approach a registering officer who would then secure the customer’s particulars. A call would then be made from the cellphone on the system which would be relayed to the telecommunication service provider. Activation would thus take place almost immediately. The entire process would probably take no longer than two to three minutes.

The Chair explained that Mr Landers was concerned that it might be problematic in the rural areas. It would most likely be the case that in the urban areas like the shopping malls, the vendor would also be the registration officer. The concern was that it might very well be different in the rural areas, in which case it was probably envisaged that if the vendor was not al the registration officer, the customer would have to travel to the registration officer to have the phone activated. The registration officer could probably be housed at a Post Office. The Bill however made it clear that the cellphone would not be activated before the particulars were registered.

Mr Landers stated that he found no mention in the Bill of a "registration officer". His concern was that it appeared to be creating a whole new bureaucracy, which created problems in the rural areas.

The Chair stated that it was a valid point, but in most cases the vendors would in any case be the registration officers as well. She cautioned against the Bill stipulating any sort of timeframe within which the activation must be effected, as that would be too prescriptive. The preferred option would be to leave it to the telecommunication service provider, as long as they complied with the Bill.

Ms Botha agreed with the Chair’s summary of the role of the registration officer. She confirmed that the Bill placed the obligation on the shoulders of the telecommunication service provider to implement the process.

Ms Johnson (ANC) asked whether the provisions in the Bill applied to contract phones or persons on pay as you go. She asked whether it applied to persons who currently owned cellphones as well as to future cellphone owners.

Secondly, she stated that the current Section 41 of the Act applied if the person’s cellphone was lost, stolen or broken, and required them to report it to their telecommunication service provider as well as the South African Police Service (SAPS). She asked whether that Section was currently in operation, and doubted whether people were aware that the law required them to report it to SAPS as well.

Mr Robertse replied that Section 41 was currently in operation. The proposed Section 40 stipulated that new SIM-cards and cellphones must be registered. The proposed Section 62(6) stipulated that those currently in operation must be registered, and thus included cellphones that were lost, stolen or broken. Section 12 of the Act stipulated that persons who failed to report could face a fine or up to twelve months in prison.

Imam Solomon asked whether the telecommunication service provider was able to ensure that the proper information would be secured by the vendor.

Mr Robertse responded that it would involve an ordinary contract between the telecommunication service provider and the registration officer. In practice terminals will be established at central points where cellphones were being sold, and that could be connected to the telecommunication service provider’s system. Thus immediate registration of the information was possible.

Mr J Sibanyoni (ANC) requested that Members be provided with a copy of Ms Both’s briefing, as it was very clear.

Mr Bassett agreed that the document would be provided.

Ms Camerer reiterated her previous question regarding the buy-in by the cellphone companies. She asked whether the proposed Bill represented a buy-in by those companies, whether their views were reflected in the Bill and whether they were able to handle the administration proposed by the Bill.

Mr Bassett replied that, as Ms Botha indicated during her briefing, the amendments contained in the Bill originated from the telecommunication service provider themselves. He confirmed that the broad concept in the Bill was in line with the interests of the telecommunication service providers. They would however have an opportunity to address the Committee on their views during the public hearings.

Ms Camerer asked whether the telecommunication service providers had alternative suggestions to the proposals in the Bill, and which are able to be implemented practically.

The Chair informed Ms Camerer that the Committee would hear the views of the telecommunication service provider during the public hearings. What the telecommunication service providers would want included in the Bill might not be amenable to the wants of the law enforcement agencies. Thus the Committee could hear from both during public hearings.

Ms Camerer alerted the Committee to a mistake in the press statement on the Bill, which referred to the Act and not the Bill. Secondly, the press statement indicated that interested parties would only have until 29 May to make submissions, and she questioned whether that was a reasonably sufficient period of time if they were only alerted of the deadline today.

The Chair responded that he incorrect reference to the "Act" will be corrected. As regards the deadline, she stated that the telecommunication service providers have been in constant communication with the law enforcement agencies and the Department, so they were not at all out of the loop. As stated several times earlier, it was at the instance of the telecommunication service providers that the amendments contained in the Bill were being proposed. The amendments were thus aimed at accommodating the telecommunication service providers. They were well aware of the deadline and were keen to get the process underway. She was aware that it was a short deadline for the rest of the public, but they would have an opportunity to forward submissions beyond the 29 May deadline.

Adv T Rudman, Deputy Director-General: Legislative and Constitutional Development, informed the Committee that many meetings had been held with the telecommunication service providers. They had technical amendments which were forwarded to the Department, and they will be raising them with the Committee during the public hearings.

The Chair stated that the Committee would accommodate the technical amendments only to the extent that they did not detract from the objectives and implementation of the Bill.

Mr Landers asked whether, at the next meeting of the Committee ,the Department would indicate the sections of the principal Act that were currently being implemented, the sections in the old Act that were still in operation as well as those had since been repealed.

The Chair agreed, as that was important for the Committee to get an overall sense of the legislation. She stated that the public hearings would commence on Tuesday 30 May 2006.

The meeting was adjourned.

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