Judicial Matters Amendment Bill; Interception and Monitoring Bill: deliberations

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
28 September 2001
JUDICIAL MATTERS AMENDMENT BILL AND INTERCEPTION AND MONITORING BILL: DELIBERATIONS

Chairperson: Adv J H de Lange

Documents Handed Out:
Summary of Submissions on the Interception and Monitoring Bill
National Public Prosecuting Authority: Further Submission
Judicial Matters Amendment Bill [B43 – 2001]

SUMMARY
The Committee met to discuss the Judicial Matters Amendment Bill and to consider the submissions on the Bill. The discussion around the Judicial Matters Bill was a procedural consideration of amendments that had been effected on the recommendation of the Committee.

The Interception and Monitoring Bill discussions revolved around the consideration of the submissions made in relation to the Monitoring and Interception Bill. The definition of "serious offences" in clause 1 of the Bill was amended. It now includes the commission of the stated offence by individuals as well, together with the inclusion of the offences under Schedule 1 of the Criminal Procedure Act followed by an effects clause. It was also proposed that other relevant legislation be cross-referenced with the Bill so as to avoid the omission of any offences covered by such legislation from the Bill. The committee finally considered the submission by the National Director of Public Prosecutions regarding the Bill’s definition of "serious offences".

MINUTES
Judicial Matters Amendment Bill
The Committee had discussed this matter previously and today they continued from clause 4.

Clause 4
Clause 4 was a technical change to numbering of the section. The phrase ‘and a clinical psychologist’ was inserted to remedy an omission due to oversight.

Amendment of the Schedule to Act 72 of 1996
The next concern was a new clause which would effect an amendment to the Schedule to Act 72 of 1996. The Schedule was that of the Hague Convention on Civil Aspects of Child Abduction Act, 1996, which was amended by the substitution of a new article 44. This was a technical amendment to insert a provision that was contained in the original Hague Convention but was omitted in the South African enactment. This provision provided that the Convention could be renewed tacitly every five years. If this provision were not in place then the Convention would cease to operate after five years.

None of the Committee members objected to this amendment.

Amendment to Section 1 of Act 120 of 1998
The amendment here was related to clause 1 of the Judicial Matters Amendment Bill. Clause 1 in the Bill dealt with customary marriages, and amended section 10 of the Administration Amendment Act, 1929. As a result of the fact that the position had been changed in clause 1 a consequential change would now also have to be effected in Recognition of Customary Marriages Act.

Clauses 11 and 12
These clauses dealt with the remuneration, allowances and other service benefits of special investigators. Adv de Lange was of the opinion that these provisions would not be allowed under the Public Finance Management Act as it would effectively allow the Scorpions to have exclusive power over their budget.
Mr de Lange submitted that in relation to at least clause 12 this would not hold true. Clause 12 dealt with regulations and would not give the Scorpions exclusive power over their budget. To this Adv de Lange said that Mr de Lange may proceed with his course of action, however when the time came he would have to justify the provision before the Committee. Mr de Lange admitted to having been pressed for time when formulating the section and suggested that the clause be flagged.

Clauses 15 to 36
It was noted that in these clauses the Bill referred to the Access to information Act when this should have been the Promotion of Access to Information Act.

Interception and Monitoring Bill
(see the Summary of Submissions)
Some submissions were not addressed specifically in the meeting because the suggestions had been put forward by others or they possessed no merit. Only those submissions which elicited discussions of significance can be found below.

Clause 1-Definition of "Call-Related Information"
The first submission considered was that of Telkom. On point 1(a)(ii) in the Summary of Submissions Ms Chohan-Kota said that Marshal International was trying to provide for a more comprehensive coverage. She was of the opinion that this was a good provision because there were forms of information which could be helpful that currently were not provided for. She suggested a 'catch all' phrase that would allow the authorities to gather any of the other forms of information.
Mr Labuschagne, a drafter from the Department of Justice, thought that the problem lay in the wording of the section as it created an impression that the clause was an exhaustive list of information that could be gathered. This was not so and to reflect this he would amend the wording of the clause to provide that all forms of relevant information could be gathered.

The Committee found no problems with point 1(b) submitted by ISPA.

On point 1(c)(ii) submitted by Telkom, Adv de Lange said that this would not be necessary. To provide for the extent to which it is possible to provide information is unnecessary because it is either possible or impossible to do so.

A Definition of Communication
The first point under this heading, made by the SAPS, was rejected as it was felt that the submission made by the National Director of Public Prosecutions (NDPP) was better. Both these suggestions were attempts to bring the Internet under the ambit of the definition of communication.

Point 2(b) of ISPA's submission was felt to be unnecessary, as the purpose of the Bill was to provide for the interception of information. This would mean that items, such as music and signals, would be included.

The NDPP, at point 2(c), attempts to include the Internet under the definition of communication. The Committee however found fault with their submission, as ‘information’ would include a conversation or a message. However, in the context of the Internet there might not be a conversation or a message but simply the accessing of information. So although their submission was a valid one, its formulation was not ideal. The suggestion that came of this discussion was the inclusion of the words "which will included the accessing of information on the Internet", after the phrase 'Communication includes a conversation or a message'.

After this discussion however it was submitted that when monitoring someone's Internet traffic, the information of interest would be the sites the individual visited and not necessarily the actual information the person looked at. If this were the case then this situation would fall under the provision relating to 'call-related' information and there would be no need to provide here for the Internet.

Adv de Lange said that a lot of this would be covered by section 205 warrants where the police could just go into the person's home, confiscate their computer and extract any information they needed directly from the hard drive.
Mr Labuschagne said that it was indeed only the call-related information that the law enforcement agencies wanted. Adv de Lange told Mr Labuschagne to consider the extent to which the definition of call-related information accommodated this concern.
Mr L T Landers (ANC) said it was important to remember that the police investigated crimes, while the intelligence agencies gathered information. To gather information, these intelligence agencies might actually want to see what information is being accessed on the Internet.

Mr J Jeffrey (ANC) submitted that the best course of action might be to exclude the Internet and provide for it in a separate act at a later date. This would have the effect of allowing the Committee to focus on other matters in this Bill dealing with specific interception and monitoring matters. This would similarly avoid a half-hearted attempt to provide for law relating to the Internet. Mr Jeffrey cited the examples of computer crime, virus and hacking. These were not discussed at all in the Bill.

Adv de Lange had no doubt that such a body of law was much needed. The point was, however, that all matters relating to interception and monitoring were to be contained in this Bill as the subject needed its own piece of legislation.

Definition of Customer
Mr Labuschagne agreed with the submission made by UUNet saying that he felt the definition of ‘customers’ had indeed been formulated without taking computers into account.
Mr Jeffrey submitted that this problem could be overcome through email addresses. Even when using an Internet café, an individual would need an email address. This is therefor the point at which monitoring could take place.

Looking at the Bill Adv de Lange identified that the word customer was used in relation to service providers. These service providers provided a service to their customers and were thus under an obligation to know the identities of their customers. The problem raised in the discussion was that these service providers rarely interact with the customers and almost never sell the prepaid cards themselves. Instead this function is outsourced to vendors or agents such as CNA, to mention the example used it the meeting. CNA, although it sold the prepaid cards to customers, could not properly be said to be a service provider. This would mean a possible reconstruction of clause 11 of the Bill providing that vendors such as CNA would be required to gather identity information when selling prepaid cards or vouchers.

Mr Labuschagne told the Committee that MTN and Vodacom were themselves not strictly speaking service providers. Each of these institutions had another company which was responsible for that part of the process. For Vodacom the service provider was Vodac and for MTN it was Mcell. These two service providers were the institutions with which the obligation to gather information currently lay.

Mr A Nel (ANC) asked what the Bill would say on institutions which had huge internal networks. Adv de Lange said that Intranets would be considered once additional information had been attained.

Adv de Lange referred to a document containing a number of definitions attributed to the terms ‘interception’ and ‘monitoring’, from different jurisdictions. Adv de Lange found that of the United Kingdom to be the most favourable.

The question which came of this was whether in our own Bill both or one term should be used. If it was decided to use one term then would it be monitoring or interception? Adv de Lange did not like the way at times the Bill swapped from one word to the other, using them seemingly synonymously sometimes.

Ms Chohan-Kota interjected that she was of the view that there were two distinct concepts in consideration. The first was monitoring which meant the ongoing process of observing someone to gain evidence. The second was interception which involved the literal interception of information or an article, with the view of preventing such item reaching its intended destination.

Adv de Lange submitted that the Bill should contain one concept, this one concept being interception. Once this was done the Bill would then spell out in detail what interception meant.

Interception and Monitoring Bill
Definition of serious offence
Mr Labuschagne (drafter for the Department of Justice) drew the committee’s attention to the proposed definition of "serious offence" in clause 1 of the Bill, and noted that the definition in Annexure A on page 3 of the submission by the National Director of Public Prosecutions (NDPP) on the Interception and Monitoring Bill limited the perpetration of the offence to groups alone. He suggested that the definition be amended to include perpetration by individuals as well.

The Chair proposed that the consideration of a "compelling national interest" was important here, and that option (C) is preferred in this regard.

Mr Labuschagne then suggested that the definition of "specified offence" in section 7(1)(A)(a) of the Prevention of Organised Crime Act (POCA) be re-evaluated in terms of the new Bill.

The Chair stated that he was under the impression that the three Gazettes dealing with the wide variety of offences covered by this definition were handed over to the Scorpions unit to assist them in the drafting of their regulatory legislation. He suggested that the committee wait until the Scorpions inform it of the offences, if any, that are covered by the POCA but are not included in the proposed definition in the Bill. He referred to the comparative definitions provided in the submission of the National Director of Public Prosecutions. The "short and pithy" dictum of an English judge dealing with "serious violent crimes" seemed particularly relevant here.

The Chair noted that the problem facing the committee now is that the schedule provided accommodates so many various crimes that it causes the provision to have far-reaching effects, yet an attempt is then made at the end of the section to narrow the wide scope by including the proviso "… if committed by organized criminals". This creates an offence only when a serious crime is committed by a collective unit (such as by a gang), but does not cover violations by individuals.

Mr J H Jeffrey (ANC) agreed with the Chair that the current definition is indeed insufficient.

The Chair then suggested that a schedule be inserted that deals with only the most serious offences together with a clause stating that if these offences are committed by a syndicate in an organised manner or by a group, the provision is then violated. He noted however that the problem with this option is the difficulty in discerning which offences are committed in terms of the proposed schedule and those committed by a syndicate or group.

Mr Jeffrey proposed a "belts and braces" list that would comprehensively define the serious offences in a broad enough manner to include the more serious offences and omit the trivial or petty offences. He suggested that the entire list of offences forwarded to the committee be scrapped and that it be left to the judge’s discretion to decide when an offence is committed. If a closed list was provided a problem arises when a new crime or a crime is committee which is not covered by the section.The result would be that here the perpetrator(s) would go unpunished.

The Chair accepted this as a sound legal argument and considered it a valid option, yet stated that this would be far outweighed by the public’s negative response to the failure to effectively prosecute transgressions of the law. He stated that justice must not only be done but must also be seen to be done.

Mr Jeffrey responded that the best option then might be the employment of an effect-based definition, rather than one that is crime or definition specific.

Dr J T Delport (DP) stated that if a serious offence in terms of schedule 1 of the Criminal Procedure Act is committed in an organized or syndicated manner, the less serious offences for which the perpetrators are often prosecuted should then be omitted.

The Chair then accepted this proposal as a valid option, but suggested that an effect clause be included as well. He stated further that an effective law allowing evidence to be used in a court of law has to be included, but noted that if the powers afforded to judges in this regard are too wide it could be challenged as unconstitutional.

Ms F I Chohan-Kota (ANC) cautioned against tampering with Schedule 1 offences to allow the schedule to accommodate "group violence".

The Chair reiterated that Dr Delport’s suggestion could work with the help of an effect clause. He suggested that a definition of serious offence in the Bill should resemble the formulation of the minimum sentence provisions (including sections 2 and 4) of POCA. A separate offence had to be included to accommodate acts of terrorism, perhaps in the form of a generic clause with a catch-all provision resembling the judge’s dictum referred to earlier. He also suggested the adoption of a clause 4(2)(b), found in the submission of the NDPP, and urged for the inclusion of any provision in the National Prosecuting Act that may currently be omitted from the Bill.

Ms Chohan-Kota still expressed discomfort regarding the fact that "petty offences" committed on a large scale seemed to fall outside the ambit of the current definition.

The Chair replied that these "petty offences" would be excluded from the scope of the provision in question, and the judge would then have the discretion to decide and interpret whether the particular small offence before the court was committed on large enough a scale to be considered a violation of the provision.

The Chair then suggested that a section from the Drugs and Trafficking Act be included as a punishable offence here, as well as a provision dealing with smuggling. He urged for the inclusion of provisions from the Corruption Act in the proposed schedule, as this offence is particularly difficult to prove without sufficient evidence of communication between the perpetrators (as far as wiring, bugging and interception of communication is concerned.)

Definition of serious offences
The Chair then moved on to consider the submission of the NDPP regarding the definition of "serious offences" in the Bill. He stated that the submission regarding the substitution of "serious offence" to "criminal offence" is nonsensical and should therefore be ignored.

He turned to the submission dealing with industrial espionage in terms of "tapping" staff communications, which has to be read along with section 2 of the Bill. This had nothing to do with the commission of an offence, but rather deals with the monitoring of the communication of the potential perpetrator(s) to facilitate the collection of evidence to be adduced before a court of law. He stated further that the company could do this itself, and that not only law enforcement officials were able to approach a judge for a court order in this regard.

Mr Labuschagne responded that there are certain criminal acts that may be committed against a company but which may not presently be included in the proposed schedule. He suggested that these crimes be inserted accordingly.

Commission of future crimes
The Chair then dealt with the submission regarding the commission of any future crimes by the perpetrator(s).

Mr Labuschagne stated that the concern here is that if the police services know that an offence will be committed in future they must have the necessary power or authority to intervene. He noted that this is not the case at the moment, as the provision merely deals with offences that are being or have been committed.

The Chair agreed with this proposal and called for the provision to be amended accordingly.

He then turned to the submission dealing with closed circuit television (CCTV). Mr Labuschagne suggested that the submission be ignored as it reflected a personal objection, and not a substantive concern. The Chair acknowledged the proposal and noted that this issue would again be addressed under a section 2 discussion.

The meeting was concluded.