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JUSTICE AND CONSTITUTIONAL DEVELOPMENT COMMITTEE
6 June 2006
REPEAL OF BLACK ADMINISTRATION A/B: BRIEFING; REGULATION OF INTERCEPTION OF COMMUNICATIONS A/B: DEPARTMENT RESPONSE TO SUBMISSIONS
Chairperson: Ms F Chohan-Kota (ANC)
Documents handed out
Summary of Public Comments on Regulation of Interception of Communications Amendment Bill [as of 9 June 2006]
Repeal of Black Administration Act & Amendment of Certain Laws Amd Bill [B11-2006]
Interception and Monitoring Prohibition Act 127 of 1992 (as amended)
The Repeal of the Black Administration Act and Amendment of Certain Laws Amendment Bill aimed to give the Department of Justice sufficient time to identify appropriate substitute legislation on the role and responsibilities of traditional leaders in relation to the administration of justice. It extended the date of the application of the provisions of Sections 12 and 20 of the principal Act, as well as its Third Schedule, to 31 May 2007. The Department indicated that it encountered various pieces of provincial legislation that already dealt with the functions and roles of traditional leaders in the administration of justice, and it would be working with the Department of Provincial and Local Government to unify those different statutory regimes into a single structure.
The Committee proposed that the deadline be extended to September 2007, as the Parliamentary recesses and passage of the Bill in the NCOP must also be factored in, and it would consider further the Department of Land Affairs’ request that the Section 1(8)(e) of the Act be amended to ensure that the delegation provided for in the provision be conducted at a very high level of authority. The Committee had to pass the Bill in time for the debate in the House on the following Tuesday 13 June 2006, if the whipery did not agree to extending the date for the debate
The Committee considered further the summary of submissions on the Regulation of Interception of Communications and Provision of Communications-related Information Amendment Bill. It considered proposals aimed at clarifying the definitions of the terms ‘activate’, ‘de-activate’ and ‘family member’. The were was a loophole in Clause 2 because, if a cellphone was stolen before the customer had a chance to activate it and register it on the system, there would be no trace of it on the telecommunications service provider’s system. Legislation would not however be able to provide blanket protection to cure the problem. Clarity was sought on the distinction between ‘blacklisting’ and ‘de-activation’. The definition of identification in the Act was being widened further to include drivers’ licences, and the Committee proposed a provision that clearly stipulated the detailed information that must be gathered from the foreigner who purchased a cellphone or SIM card in South Africa.
A reasonableness test for the standard of proof of identification provided to telecommunications service providers must be inserted into the Bill, and it was proposed that the Minister of Justice prescribe via regulation the standard of security for the database housing the customer’s information.
Under Clause 4, the Committee reiterated its refusal to allow a 36 month period within which to register all their customers. The Committee disagreed with the submissions that the Bill’s registration process would be a disincentive for customers, that it was counter-productive and would exclude existing and potential customers especially those in the rural areas and that the Bill would have a crippling effect on the social and economic structures of the poorest communities.
Briefing on Repeal of the Black Administration Act Amendment Bill
Mr L Bassett, Chief Director of Legislation: Department of Justice, reminded the Committee that it had passed the Repeal of Black Administration Act and Amendments of Certain Laws Bill [B25-2005] in 2005. The Department had had to deal with that legislation over time because not all the provisions in the principal Act were capable of being repealed in one fell swoop, despite the Department’s wish that it was possible. If it had been repealed in one fell swoop, definite legal consequences and complications would have arisen.
The Bill consequently intended extending the date of the application of the provisions of Sections 12 and 20 of the principal Act, as well as its Third Schedule, to 31 May 2007. The intention was to give the Department sufficient time to identify appropriate substitute legislation on the role and responsibilities of traditional leaders in relation to the administration of justice. Both the Department and Cabinet decided that the substitute legislation on traditional leaders would be minimalist and would serve only as an interim measure.
The Department encountered a number of problems as it did so. The Department of Provincial and Local Government (DPLG) had informed the Department that provincial legislation currently existed which dealt with the functions and roles of traditional leaders in the administration of justice. The power to pass such legislation was granted to the provinces in 1994, which meant that there were currently different statutory regimes in place in different parts of the country,
The Bill thus suggested that all sunset clauses be extended to 31 May 2007. The Department had consulted with DPLG on the change in timeframe. He informed the Committee that he had received a telephone call from the Department of Land Affairs the previous night requesting the Committee to consider an amendment to Section 1(8)(e) of the Act, in order to ensure that the delegation provided for in the provision be conducted at a very high level of authority.
The Chair doubted whether the Bill would be passed by 31 May 2007, given the complications with other statutes highlighted by Mr Bassett. The view of the Committee was that the Department should consider a date beyond 31 May 2007, and must consult with the Department of Land Affairs on the matter. The Committee must then be informed accordingly of the deadline. She stated that a special cause of concern for her was that the potential difficulties with the role and functions of traditional leaders might result in constitutional challenges. The traditional leaders must also be given 30 days to comment on the Bill, and that was another reason why the deadline of 31 May 2007 was perhaps not realistic. She proposed that the best time be around September 2007, as the Parliamentary recesses must also be factored in.
Secondly, in terms of the Department of Land Affairs’ request, she stated that the reason why the Committee contended that the Minister must deal with the applications referred to was because that Department was not able to inform the Committee of exactly what those restrictions on the title deeds were about. If the restrictions in the title deed were protective in nature they would have a political undertone, and could thus not be delegated to a junior official. However, the restrictions that pertained to the factual ownership of land could be dealt with by a departmental official in a purely bureaucratic manner.
She stated that it did appear to her that it would be problematic to simply delegate that power to any official, and she welcomed the Department of Land Affairs’ proposal that a senior official bear that responsibility. The granting of a blanket delegation was however problematic, and for that reason the Minister should probably be involved in the process at some point. Perhaps categories of delegations would be devised.
The Chair stated that she had no difficulty with the Department of Land Affairs’ proposal in principle. Her only concern was the Committee’s time constraints.
Ms M Chetty, Department of Land Affairs Parliamentary Legal Officer, stated that she would have to consult the Deputy Minister of Agriculture and Land Affairs on the matter, but believed that her Department would have no problem with delegating that responsibility to its Deputy Director-General and to categorise the discretion. She proposed that the Committee incorporate the amendment as it was, and the Department of Land Affairs would get back to the Committee once it had considered the matter further with the Deputy Minister..
The Chair replied that the problem with that proposal was that the Committee would have passed the Bill without knowing the precise restriction that could arise. The Committee could not pass a law that was not capable of accommodating such eventualities. Some form of categorisation of delegable functions must be devised. She proposed that the Minister be allowed to delegate certain categories of restrictions to departmental officials, which would allow the Minister to at least have sight of them.
She stated that the Bill really proposed a simple amendment, and the views of the Department of Land Affairs were awaited. The Committee might have to pass the Bill on the next day to meet the deadline for debate in the House on the following Tuesday 13 June 2006, if the whipery did not agree to extending the date for the debate.
Summary of submissions on Regulation of Interception of Communications and Provision of Communications-related Information Amendment Bill
The Chair requested Mr S Robertse, from the Department, to take the Committee through the summary of comments from the public submissions received on the Bill.
Clause 1: Amendment of Section 1 of Act 70 of 2002
Definition of ‘activate’ and de-activate’
Mr Robertse responded to the Virgin Mobile submission by informing the Committee that the term ‘activate’ was already used in the main text o the Bill, in Section 62(2). It could however be specifically included in the definitions clause to add clarity. The term ‘de-activate’ could perhaps be clarified further in the Bill, but the fact that the Bill referred to ‘activate; clearly the opposite of that term would then also be the case.
The Chair asked whether telecommunications service providers could practically de-activate cellphones..
Mr Robertse answered in the affirmative.
Ms Botha, from the Department of Justice, added that that might however have a bearing on Section 41 of the Act which dealt with the prohibition. There was thus perhaps merit in explaining the meaning of the terms ‘activate’ and ‘de-activate’.
The Chair stated that that was precisely her point. Before the cellphone and SIM card were activated, the customer must not be able to do anything with the cellphone or SIM card, not even make emergency or customer care calls. Similarly, when the cellphone was de-activated the customer should not be able to do a thing with that cellphone. She stated that this was merely an issue that related to the clarification of the drafting in the Bill, and did not add substantively to the provision.
Imam G Solomon (ANC) agreed with the Chair, and contended that the definition of ‘activate’ proposed by Virgin Mobile was incorrect and could thus not be entertained.
Definition of ‘family member’
The Chair stated that the problem with inserting ‘dependent’, as requested by the Virgin Mobile submission, was that it would narrow the scope of the Bill significantly and would create several problems. The submission misread the proposed definition, and the definition in the Bill was wide enough.
Ms S Camerer (DA) asked whether the definition of ‘family member’ was sufficiently wide to cover the situation in which a person was taking care of someone who was not a relation biologically or by law, whether civil or customary.
Imam Solomon agreed with the Chair that the inclusion of ‘dependent’ would narrow the scope unnecessarily. He proposed that the provision remain as it currently stood, as it was phrased broadly enough.
The Chair requested Mr Robertse to check whether ‘dependent’ could be included, or whether it would narrow the scope.
Clause 2: Substitution of Section 40 of Act 70 of 2002
Information to be captured upon registration
Mr Robertse explained that the requests made by the submissions was that they be required to record only the MSISDN details, and that the postal or business addresses of the customer not be captured. Pick ‘n Pay failed to see the point in capturing the ID number of customers as only 30 million South Africans had ID documents. The SAPS submission however called for both the MSISDN and IMEI number to be captured, as well as the full names and ID number of the South African customer. The South African Police Service (SAPS) was also of the view that detailed information on any foreigner who buys a cellphone or SIM card in SA must be recorded.
The Chair reminded Members that the Committee had requested Mr Robertse and Ms Botha to re-visit the capturing of the MSISDN and IMEI details. The Committee needed the assurance that the IMEI number would also be captured at the point when the rest of the personal information was recorded. That would avoid delays in activation when the customer used the SIM card for the first time on that phone.
Ms Camerer was concerned that if it was the case that criminals used the prepaid option primarily, and if they were now required to also provide the IMEI number of their cellphone when they registered the SIM card, surely they would negate the purpose of the provision by simply changing handsets immediately afterwards and then use that cellphone in committing the crime. That was thus a simple way for them to defeat the ends of justice.
The Chair agreed that that loophole existed, especially if the cellphone were stolen before the customer in fact had a chance to switch it on and use it for the first time. In that particular scenario neither the IMEI number nor SIM card would yet have been activated and registered on the system, because the phone was still being charged. The little mechanism in the Bill was that in that case it required the customer to immediately report the stolen cellphone to both the telecommunications service provider and SAPS. The reality of the matter was that the legislation would never be able to provide blanket protection to the customer, as there would invariably be that period of a few days before reporting the stolen or lost cellphone.
Director Van Graan, SAPS Legal Services, agreed with the Chair’s summary of the situation. He emphasised that SAPS would never be able to have all the required details of every single cellphone and SIM card in South Africa, but the provision was a means to begin to address that problem.
The Chair asked whether the blacklisting process was different from de-activation.
Dir Van Graan replied that one of the provisions of the present Act was the Section 41 process, which was already in force. The National Commissioner of Police had created a set of instructions for how that process would be dealt with, and the data was recorded on the SAPS criminal administration system. It thus had a database of all cellphones that were reported as stolen or lost.
Prior to that the National Police Commissioner, together with the telecommunications service providers agreed that the cellphones that fell under Section 41 would be blacklisted, which entailed permanent de-activation. Thus that arrangement was not stipulated in any law, but was merely an agreement reached between SAPS and the telecommunications service providers. Blacklisting was "a huge crime combating effort" and it could only be done with the help of the telecommunications service providers. It was working well and resulted in thousands of cellphones being blacklisted per month.
Mr Bassett informed the Committee that the Department was looking into the blacklisting issue.
The Chair stated that the blacklisting issue must be revisited in the context of Section 62(6)(c).
Mr Robertse explained that the handset would lie dormant, and could not be used for anything at all. It would not be able to function or pick up a signal. It could only be used with a specific MSISDN. As soon as a SIM card was placed in the cellphone it would automatically be registered. The SIM card could only be activated in terms of this legislation if, firstly, it was registered, which required the customers particulars with regard to the MSISDN.
Ms Botha added that her understanding was that blacklisting was permanent, However Section 62(6)(3) involved temporary de-activation because, by registering and getting a new activated SIM card, the customer would be able to use that handset again.
The Chair asked whether that was the best case scenario.
Mr Robertse responded that there were many stolen handsets that were still floating around. The effect was that the specific cellphone would be registered against a particular individual, so that it could be traced.
The Chair stated that the provision must be drafted in such a way that required both the handset and the SIM card to be registered when activating the cellphone. This might entail locking the cellphone to a specific SIM card, in as far as that was possible. The aim was not to restrict the customer to a single cellphone only but rather to ensure a trail between the cellphone and a specific SIM card, for law enforcement purposes. She requested Mr Robertse and Ms Botha to consider this further.
Imam Solomon agreed with the Chair. Secondly, he asked whether he was correct in thinking that the critical issue for blacklisting was requiring the customer to register the IMEI number.
Mr Robertse answered in the affirmative.
Ms Botha explained that the law enforcement agencies’ (LEAs) biggest problem was that if the customer did not report that his cellphone had been lost or stolen, it then did not matter what as included in the law because the LEAs would never be able to cure that in any piece of legislation.
Ms Camerer asked whether the use of several SIM cards was accommodated in the Bill.
The Chair replied that the Bill referred to ‘any SIM card’, which thus covered that.
Mr Robertse replied that it could involve different scenarios. A person could have different SIM cards with MSISDN numbers. If those were lost they must be reported and they would be cancelled immediately. Secondly, if the person had various SIM cards but with the same MSISDN number, one of the SIM cards could be reported stolen and it would be cancelled. The remaining SIM cards would still be fully operational. Each individual SIM card would however have to be registered.
Ms Camerer asked whether the IMEI number was not recorded by the retailers when the cellphone was bought from the manufacturers. If that was the case, she saw no need for it to be recorded when the cellphone was reported as having been stolen or lost.
The Chair reminded Ms Camerer that that was the thinking in the principal Act. The telecommunications service providers were however not happy because that system, they argued, was far too decentralised as it not only required retailers to record and store that information, but also required them to store it in a paper-based system. The telecommunications service providers had come up with this new scenario and the Committee was trying to accommodate their proposal. She made it clear that the Bill would not spell out how exactly the telecommunications service providers would capture the information, but would only regulated the kind of information that needed to be recorded.
Secondly, she stated that Ms M Meruti (ANC) informed her that people in the rural areas very often received their post at the nearest shop or even school, as the shopkeeper and principal would be able to identify persons in the community. She asked whether the legislation contained a definition of the term ‘postal address’ that would cover that scenario. If not, she requested Mr Robertse and Ms Botha to devise a phrasing that would give effect to her proposal. She believed it would cure some of the concerns with people who did not have residential or business addresses.
Mr Robertse agreed.
The Chair noted that the definition of identification in the Act was quite wide, but asked whether drivers’ licence could not also be included in the Bill. That would give leverage in terms of the kinds of identity documents that were currently available, namely the ID cards, the bar-coded ID document, passports and now the drivers’ licence. She stated that FICA itself used the drivers licences.
She stated that that revised definition would then accommodate the concern raised by the Smartcall submission that many South Africans do not possess ID documents.
Mr Robertse stated that he would consider its inclusion.
The Chair noted the SAPS proposal that the passport number of a foreigner who purchased a cellphone within South Africa must be captured, but asked whether the Bill clearly stipulated the precise detail of information required from them.
Mr Bassett replied that it was covered in the definition of ‘identification’ in the principal Act.
The Chair reiterated that the Bill must clearly stipulate the precise detail of information required from them.
Mr Robertse responded that there was no such provision in the Act or the Bill. Sections 51 and 52 did however stipulate that no person would be allowed to access a South African telecommunications system unless their details were stored on a telecommunications service provider’s system.
The Chair stated that a clause must be inserted that clearly stipulated the detailed information that must be gathered from the foreigner.
Mr Bassett agreed that the Department would consider it.
Abuse of powers by registration officers
Mr Robertse informed the Committee that a concern had been raised in the Cell Shack submission that the process in Clause 2(2) created the scope for registration officers in the remote areas to abuse their powers.
The Chair disagreed with the concern and stated that the Committee could simply not accommodate such thinking. She also disagreed with Cell Shack’s concern that there might not be the necessary infrastructure in the underdeveloped areas to satisfy the Bill, as the telecommunications service providers informed the Committee during the public hearings that they would use roaming capture devices to record that information. There was thus technology currently in place that would accommodate that.
’to the satisfaction of the telecommunications service provider’
Mr Robertse indicated that the Pick n Pay submission raised several concerns with the detail of information required from customers, and contended that postal addresses should not be captured.
The Chair stated that the Committee had already dealt with the issue of addresses in this meeting. She did however indicate that the counter to Pick n Pay’s argument that requiring too much information to be captured would lead to human error, was that too little information was also not adequate and would then “compromise the integrity of the data that is to be kept”.
She stated that she agreed with their concern that the Bill did not clearly stipulate what kind of proof was ‘satisfactory’ to the telecommunications service provider. She requested Mr Robertse and Ms Botha to look at the manner in which the FICA regulations dealt with the matter. The Committee did however want to keep the kinds of documentation that could be produced as proof of identification as wide as possible. The provision would thus stipulate “including the following documentation” and would then proceed to list documentation such as the bar-coded ID, passport etc.
Furthermore, a concern was also raised during the public hearings held last week that the legislation did not indicate what a registration officer would have to do when he believed that a fraudulent registration was about to take place or did in fact take place. That must be looked at in greater detail. She requested Mr Robertse and Ms Botha to include as an option the ‘reasonableness’ test of the proof of identification produced.
Mr Robertse agreed.
Financial costs of verification process
The Chair stated that she failed to understand this Virgin Mobile argument in their submission.
Mr Robertse stated that he failed to understand it as well.
Duplication of verification laws
The Chair stated that this concern raised by Virgin Mobile could simply not be entertained.
Customer details need not be verified
Imam Solomon stated that the proposal by Virgin Mobile that the details of customers need not be verified was ridiculous. Businesses such as Virgin Mobile would never sell anything to customers on credit without first verifying their personal details, including their financial and credit status, and he thus failed to understand why they refused to verify customer details for the law enforcement purposes of the Bill.
Ms Camerer was of the view that the proposal was perhaps aimed at the registration officers in the informal sector.
The Chair agreed with Imam Solomon that that proposal could not be accepted. There was no way that they would be allowed not to verify the details produced by customers.
Proof of address in rural areas problematic
Ms Meruti stated that this concern raised by Virgin Mobile was covered by what she had told the Chair on the previous day, and which the Chair had already raised earlier.
Mr J Sibanyoni (ANC) agreed that that would help in the rural areas, like on a farm.
The Chair agreed. She emphasised that the Bill was not trying to limit the number of people who had access to cellphones, but was merely trying to create linkages for law enforcement purposes.
E-commerce international best practice
The Chair asked Mr Robertse to explain this Virgin Mobile concern that the provisions in the Bill was a step backward in terms of international best practice.
Mr Robertse replied that they were referring to the use of digital signatures etc. as a means of identification. Their concern was that that was problematic in the rural areas.
The Chair ruled that the concern could not be entertained.
She requested Mr Robertse to skip any issues in future submissions in the document that the Committee had already dealt with during this meeting, such as the detail of information required from customers.
Clause 2(4: Storage of customer information in a secure facility
Mr Robertse noted that Virgin Mobile welcomed the provision.
The Chair stated that the Bill did not set a standard for the security measures, and there was thus no vetting process. That must be put in place before the Bill could impose sanctions for non-compliance with this provision. She stated that it was an important issue that must be looked at, but admitted that she did not have a workable solution to the problem. She proposed that it could perhaps read\; “The Minister may in regulation provide the requisite security standard”. The Minister would then specify which officials were allowed to have access the data and the standards of security they must follow.
Mr Robertse stated that he would consider the Chair’s proposal.
Clause 2(5): Transfer of cellphone or SIM card between individuals
Mr Robertse informed the Committee that a common concern raised by the submissions under this provision was that the reference to “cellphone” be deleted.
The Chair stated that the Virgin Mobile concern was cured as the Committee decided last week, during its public hearings, that both the parties would have to be present before the registration officer when transferring the cellphone or SIM card.
The Chair stated that she did not understand the Virgin Mobile concern that the definition of ‘customer’ be deleted to exclude resellers of cellphones, because the reseller must have been a customer in the first place when he bought the
Mr Robertse agreed with the Chair’s analysis. He stated that there was thus no merit in the concern.
The Chair agreed.
Mr Robertse indicated that the Virgin Mobile submission raised concern with the disclosure provisions for customers.
The Chair stated that the provision must be examined further.
Clause 3: Amendment of section 51 of Act 70 of 2002
Clause 3(b): Penalty for non-compliance by telecommunications service provider
The Chair stated that the Virgin Mobile proposal that a jail sentence be deleted cannot be entertained. She requested the Department to get back to her on the precise extent of the fine envisaged in the provision.
Mr Bassett agreed.
Clause 4: Amendment of section 62 of Act 70 of 2002
Mr Robertse informed the Committee that both the Pick n Pay and Cell Shack submissions called for a 36 month period within which to register all their customers.
The Chair disagreed with the reasoning of the Pick n Pay concern that the registration process would be a disincentive for customers. She was still waiting for the motivation from the telecommunications service providers on the time period they needed to capture the details of all their customers. She emphasised that, as she had indicated the previous week during public hearings with the telecommunications service providers, the Committee would not concede to the 36 month period because it was not a realistic timeframe.
Clause 5: Short title and commencement
Mr Robertse noted that the Virgin Mobile submission merely made a comment about the short title, and it thus bore no substantive significance.
Mr Robertse informed the Committee that the Pick n Pay submission argued that the registration process in the Bill was counter-productive and would exclude existing and potential customers, as well as those in the rural areas. The Smart Cell submission opposed the Bill for the same reason, and Cell Shack argued that the Bill would have a crippling effect on the social and economic structures of the poorest communities.
Comments received on Bill but not included
Mr Robertse indicated that there were several such comments, but were not included in the documentation as they raised no substantive points.
Other documentation received
Mr Robertse noted that the document included extracts from the research report for the Office of the Privacy Commissioner of Canada on the manner in which various countries captured customer information on pre-paid cellphone customers. This would be of use to the Committee.
Ms Camerer expressed her disapproval at the fact that the general comments in the telecommunications service providers’ submissions, which echoed the negative effect of the Bill on the South African economy, had not been included in the document being discussed. She considered it a grave oversight that they were omitted, as they were very important points about the overall effectiveness of the Bill.
The Chair reminded Ms Camerer that the Committee had had that debate with the telecommunications service providers themselves during the public hearings held last week. She made it clear that the purpose of today’s meeting was however to deal with all the other submissions received on the Bill. She called on Members not to rehash old debates.
The meeting was adjourned.
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