Interception and Monitoring Bill: deliberations

Meeting report

JUSTICE AND CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
3 October 2001
INTERCEPTION AND MONITORING BILL

Chairperson: Adv J H de Lange

Documents:
Interception and Monitoring Bill [B50-2001]
Summary of Submissions on the Interception and Monitoring Bill

SUMMARY
Only those submissions in the Summary document were considered by the Committee. The Committee met to continue deliberations on the Bill, covering Clauses 2, 3 and 4 of the proposed legislation, and further providing directions to Mr Labuschagne on the aforementioned sections, during the session.

The handling of the term "judge" in Clause 3 was discussed, together with the need for the applications to be made in writing. The Clause 4(2) issue of direction provision was amended slightly to include further concerns. Issues regarding the use of "national economic and safety interest" were debated. The use of the term "any other person" in Clause 5 was discussed, and the decision was taken to temporarily delete this from the provision till the matter is fully clarified.

MINUTES
Clause 2
The Chairperson, Adv de Lange (ANC) continued from Clause 2 of the Bill, where discussion had ended at the last meeting. The section contained provisions relating to so-called ‘participant monitoring’.
Some of the issues arising were whether or not, and how, law enforcement could make use of and be brought in under the provisions of Clause 2 (2). The Committee had had the benefit of comparative work regarding the Canadian and USA positions and how they related to the current SA law. Adv de Lange asked Mr Labuschagne, Mr. Labuschagne, if there was any other current SA legislation that allowed for interception and monitoring in other contexts.

Mr Labuschagne responded that the previous legislation commenced with the words "no person shall…" and he had not found any other legislation that "did". He handed Judge Gordon’s submissions to the chairman.

Adv de Lange telephoned Mr Van Wyk of the Law Commission to ask for further research on whether their was any other current legislation that provided for interception and monitoring in other contexts e.g. correctional services, defense. If so, Mr van Wyk was to report back to the Committee and they could marry those provisions with the new Bill. He noted that participant monitoring was an issue in Grilday v Dubois [USCA, first circuit, 96/1831].

Ms Fatima Chohan-Kota (ANC) suggested that the reason that law enforcement was excluded from participant monitoring was that the previous Act had been silent in regard to participant monitoring. Clause 2 of the Bill excluded law enforcement, thus the wording "any law enforcement agent" should be included. She also queried whether 2(2)(a) and 2(2)(b) were contradictory?

Mr Labuschagne explained that 2(2)(a) relates to the situation where the person monitoring was a party to the monitored conversation, thus an example of party participant surveillance. And 2(2)(b) is where a third person was monitoring the conversation of two other people i.e. third party surveillance.

Adv de Lange suggested that the provisions be spilt into two different clauses.

Mr Labuschagne queried whether the idea of consent did not result in having only two parties to the monitoring. That is, 2(2)(b) was not really third party surveillance, since one of the parties to the conversation had given consent and was thus ‘part ‘ of the monitoring, as in the situation in 2(2)(a).

Adv de Lange countered that in Clause 2(2)(b) there was in reality a third party involved, and gave the example of where a contract is signed permitting the monitoring of one’s communications.

Ms Chohan-Kota noted that the person concerned need not follow the legal application process if they were a participant in a monitored conversation.

Dr Delport (DP) understood this to mean that he couldn’t legally, for example, get someone to tap his phone because he wanted to hear what his wife was saying to his neighbor.
Ms Chohan-Kota confirmed this.

Adv de Lange asked how a third person would know which calls on a cell phone or telephone were the calls of the consenting party, unless that third party listened to all the calls.

Dr Delport stated that the implication would be that all listening devices which could not distinguish consented conversation from non-consented calls had to be disallowed.

Ms Chohan-Kota submitted that the aforementioned scenario would have to go through the application for directive process.

Dr Delport asked how the situation would be affected if the Police were party to the conversation?

Adv de Lange submitted that Clause 2(2)(b) had a high potential for abuse.
Mr Labuschagne countered that this was only so if the consenting party gave a blank consent.

Ms Chohan-Kota stated that where there was consent there was no crime, because the person concerned was participating.

Adv de Lange agreed but what if someone else was to use the phone?
Ms Chohan-Kota answered that consent was given for the interception and monitoring of the particular person’s communications; it would be illegal to intercept and monitor the calls of another person who might be merely using the phone of the consenting party. This would fall foul of Clause 15, the penalty for which was 2 years imprisonment.

Adv de Lange instructed Mr Labuschagne to draw up new clauses, which would include the process used in the USA, also scenarios where a party to the monitored conversation was a police officer and an alternative along the lines of the Massachusetts provisions as per Ms Camerer’s previous suggestions.

Mr Labuschagne stated that as he understood it under the Massachusetts provisions both parties consented to the monitoring and as such he queried the need to describe this scenario.

Adv de Lange said that the new draft requested would cover actual case law examples such as where prisoners were told that all calls would be taped, also examples like where Vodacom records customer queries on their enquiries line. He suggested a clause along the lines of " any person may intercept and monitor where the parties have actual knowledge of the interception and monitoring ".

Ms Chohan-Kota added that knowledge only required notice, not necessarily consent.

Mr Mzizi (IFP) thought that the example of Vodacom’s message informing the caller of the call being recorded, was unclear because one was not certain of what you were consenting to by continuing the conversation.

Adv de Lange said that the ‘actual knowledge’ situation had not been covered in the Bill and needed to be included. Every interception and monitoring not covered by the exceptions in Clauses 2, 3, and 4 was not allowed. The intention of the recording party is very important; illegality depends on what one wanted to do with the intercepted information. He stated further that clause 2 (1) was badly drafted and came from the 1993 legislation. The word "may" should be replaced with "shall".

Mr Labuschagne countered that ‘plain English’ principles concluded that there was no difference in effect between "may" and "shall".

Adv de Lange stated that lawyers in SA had been trained to treat "may" and "shall" differently.

He continued; where one was a party to the interception and monitoring conversation then one was allowed to intercept and monitor, but if a tap on a phone picked up conversations to which one was not a party, then this would be illegal in terms of Clause 2 and consequently a crime.

Mr Steve Swart (ACDP) re addressed the issue of "may" and noted that the effect of the prior admonition "no person" amounted to a "shall".

Adv de Lange joked that the intention then here was to change "shall" to "may" so that the meaning stayed the same; he jokingly suggested that the person’s advocating the change were ‘experts’ who had been on a half-day course in ‘plain English’.

Mr Steve Swart continued the humor stating that all the lawyers concerned had been on a ‘plat-engels’ course.

Adv de Lange, referring to 2(3) as complex, asked whether this provision was required and how it differed from clause 2(2)(a).

Ms Chohan-Kota suggested that the fundamental difference was in the keeping of the recorded calls for record purposes.

Adv de Lange said that 2(2) didn’t prevent this; everything stayed the same; 2(3)(b) fell away because of the change in the definition of interception (to include monitoring). The only additional meaning here was in regard to businesses, where business referred to the private sector not government departments. It was clear that one could intercept but one was only allowed to keep business calls not private calls. The committee could allow the monitoring of business calls, but not of private calls made form businesses phones. He suggested that 2(3) be drafted more carefully.

Imam Solomon (ANC) claimed that a plain device could not distinguish between personal and business calls, making it necessary for all to be recorded, and that was wrong.

Adv de Lange stated that such recording was allowed, but the employer was not allowed to use the recording for any purpose if such calls were of a private nature.

Mr Labuschagne commented that the SAPS would for instance wish to do precisely this, i.e. record the employee’s conversations.

Adv de Lange stated that the provision would allow for the recording but that there was an obstacle regarding how the material was then used.

Adv de Lange referred to the Summary of Submissions document and asked what the phrase " a party to the communication" meant.

Mr Labuschagne suggested that a person who consented ought to have an interest in the communication; the result of this provision was that the SAPS were unable to use Clause 2(2) to intercept and monitor.

Adv de Lange said that one should distinguish interception from the use to which the information was put, and that at any rate, the committee was now only concerned with drafting options at this stage. He noted that SACCOB’s submission on page 15 was incorrect. With respect to NIA’s submission on page 16, he said that that he was not going to exclude one particular category of persons i.e. private detectives. He queried the NDPP directives on the same page.
Mr Labuschagne said it was suggested that the NDPP prescribe circumstances under which interception and monitoring could be done.

Adv de Lange concurred; if law enforcement wanted to make use of these provisions then they should do so in terms of the directives of the NDPP. This would make clear that law enforcement was also catered for in the Bill. The directives would be submitted to Parliament and these could not therefore be utilized until they had been passed.

Clause 3
Adv de Lange asked if there were any conceptual problems with clauses 3 or 4. Clause 4(2) was the heart of the Bill i.e. where a judge was asked to issue a direction on application to allow interception and monitoring in cases where 1) a serious offence was at hand and 2) there was a need for collection of intelligence information. Was this actually the correct interpretation, because the exclusion of the intelligence agencies from using the first option made prima facie no sense? It was clear that the police would not be able to use 4(2)(b), because this was far beyond their mandate.

Mr. Steve Swart addressed offences covered by "compelling national interest" e.g. sedition (common law offences) and suggested that they were surely also barred under (a) and therefore (b) was redundant. NIA could act under (a). He queried what other compelling national interests might exist and noted that the term was very vague.

Dr Delport (DP) suggested that his understanding was that there were three categories here, serious offences as covered in the list, gang-related /organized crime offences and lastly situations where intelligence was necessary i.e. gathering of information. As regards the test, he suggested that there had to be reasonable grounds to come to the conclusion that an offence was serious, and that investigating crime would suffice to cover all possibilities.

Adv de Lange stated that gathering information was much wider than investigating offences, and this should be restricted, in that a judge could decide how far this should go/ how wide to let the activity reach. It was necessary and logical to have a clause on intelligence other than in terms of clause 4(2)(a). The Police shouldn’t be able to use clause 4(2)(b) because it was ultra vires their legislation. In the definition of Clause 4(2)(b) one should consider something narrower than "compelling national interest".

Mr Labuschagne said that in terms of the existing Act, the SAPS and the Scorpions could apply for a directive in terms of serious offences and security issues and that clause 4(2)(b) was applicable to the NIA.

Adv de Lange said that if the Scorpions were using clause 4(2)(b) then that was wrong.

Mr Labuschagne made the point that Adv de Lange himself had passed the enabling legislation the previous year.

Adv de Lange said that he was wrong to have done so and that a line should be drawn so that the Scorpions could only use Clause 4(2)(a).

Ms Chohan-Kota queried whether the SAPS could make an application under clause 4(2)(a) if for example someone with a propensity for crime was in the country, and his presence was a crime risk although he had not committed a crime.

Adv de Lange said that this was covered since the provision also referred to crime in the future. It was not the job of the SAPS to gather information intelligence. If there was such a case, then the NIA should be informed and take over the matter of gathering intelligence. The test was still "reasonable grounds" and "will probably be".

Ms Chohan-Kota said there was a problem with "will probably be".

Adv de Lange said that this was dependent on the judge, who would have to decide.

Mr Mzizi asked whether a "compelling national interest" would cover a serial murderer present in the country or a ‘Bin Laden’ on our shores.

Adv de Lange identified two concepts, namely where security was threatened i.e. there was an actual threat, and where gathering was necessary i.e. a potential threat. He asked whether the case was that where the country ‘was threatened’ then the test was lower, but where there was only a potential threat the test would be stricter. He also asked why the phrase "cannot be investigated in any other manner" in Clause 4(2)(a) had been left out in 3(b).

Mr Labuschagne agreed that Clause 4(2) was the same as the old Act but that it didn’t refer to security at all. He suggested that one should reconsider the definition of serious offences i.e. take out ‘security’ and include it under serious offences.

Adv de Lange stated that Clause 4(2)(b) was the intelligence-gathering clause and that this activity would take place where there were reasonable grounds for the gathering of information. This part was not linked to what could be done if there was an actual threat.

Ms Sheila Camerer suggested that the committee look at what the USA was asking their Congress to pass now for guidance. Adv de Lange agreed and moved on to ask why the rider "cannot be investigated in another manner" was not included. Mr Labuschagne responded that the current Act did not have this rider.

Adv de Lange stated that both elements of Clause 4(2)(b) i.e. an actual threat and the potential threat, were required.

Ms Chohan-Kota submitted that the first part connoted some sort of urgency/emergency, in which case other ways and means could be done away with i.e. it would be reasonable in an emergency to seek interception and monitoring without first exhausting other methods.
Adv de Lange agreed and stipulated that this needed to be made clear.

Ms Chohan-Kota suggested a division of the existing Clause 4(2)(b), into a sub (b) and sub (c).

Adv de Lange asked what the test should be for Clause 4(2)(b) i.e. security or security and compelling national interest.

Ms Camerer held that the security issue was important, but that the phrase "compelling national interest" had been open to abuse in the past and would be in the future.

Adv de Lange stated that public safety and national security were in the Bill, but suggested a scenario where the USA asks SA to help tap someone’s phone. Although there was no threat to our country, it might be in the national interest to co-operate.
Ms Camerer responded that SA would co-operate because there was a potential threat to the national security.

De Lange asked what the committee could introduce that would allow SA to help out the USA in the previous example. Ms Camerer suggested that one should avoid the possibility for subjective interpretation e.g. the majority party may feel that it would be a ‘compelling national interest’ that they remain in power; security was much more definite in scope and objectivity.

Adv de Lange felt that Mr Labuschagne should look for a clause regarding international interests that would cater for this sort of example.

Ms Chohan-Kota had no thoughts on alternatives for "compelling national interest". She felt that the tests could limit the use of the compelling national interest argument and that there was furthermore an inherent limitation in the clause in that it referred to a threat to the Republic as a whole i.e. it could not just be used for a sectarian interest. She felt that ‘actual threat’ was a very high test also and stated that she was comfortable with the way the clause stood. Clearly the area left itself a bit vague, but that was precisely where the intelligence community operated, i.e. in vague uncertain arenas.

Adv de Lange said that perhaps clause 4(2)(b) should be assimilated into clause 2 as Ms Chohan-Kota had suggested. In the first part where there was an actual threat, the compelling national interest phrase could be retained, but where the second part dealt only with potential threats, the phrase compelling national interest could be removed and merely security and public safety retained. There should also be a clause in which a judge could consider an international request for interception and monitoring.

Mr Labuschagne confirmed then that compelling national interest was to be removed from the Bill except in the one instance where there was an actual threat to the Republic. He asked whether the mutual legal assistance provisions did not perhaps cater for international assistance?

Adv de Lange responded that this did not cover interception and monitoring and was restricted to things like handing over persons etc.

Adv Masutha (ANC) argued that SA could only act based on a law of international import e.g. a UN resolution might give SA a basis on which to act against terrorism and to draft this intrusion into human rights into the Bill.

Adv de Lange suggested that this was a bit narrow, since our obligation to assist internationally was predicated upon that assistance being legal in terms of our domestic law; it would be impractical to wait for the international community to agree on a matter before acting.

Adv Masutha asked about circumstances where economic interests were under threat. He cited the example of the Stellenbosch gentlemen who spread confusion over South African’ involvement in the terrorist attacks in the States by means of the Internet, thereby directly effecting the value of the national currency, causing same to decline recently.

Ms Camerer reiterated that "compelling national interest" had negative historical overtones. She gave an example of a MP making an allegation. A judge would be hard pressed not to approve an interception and monitoring order in his favor, and then it is found that the allegations are unfounded and the process abused.

Adv de Lange claimed that the test of an actual threat would limit this misuse i.e. the test was not just ‘reasonable grounds’.
Ms Sheila Camerer nevertheless concluded that the phrase gave wide scope for misuse in powerful hands.

Adv de Lange gave the example of an economic threat where the Rand was actually falling and law enforcement knew that the source of disruptive harmful Internet activity was for example Sanlam. In that case an application would be made to monitor Sanlam based upon an actual threat, which was of compelling national interest.

Ms Chohan-Kota described "compelling national interest" as a broader generic term, which covered also international obligations since it would be in SA’s interests to comply with these, other wise SA might get sanctioned or bombed. However the problem of specifying international obligations in the legislation rested also on what an international obligation really was. To her knowledge there were several ways in which SA could pick up an international obligation. A UN resolution, she noted, was not binding. Such a resolution might become international customary law if there was uniform and consistent usage over time; then only would the resolution become a form of obligation. Another possibility was where our county signed treaties. Our constitution left this open. The international treaties still had to be made or introduced into national law before they found application in SA. The third possibility was the so-called self-executing provision in a treaty. She thought that it would be widening the scope for uncertainties if the committee were to introduce a clause using the phrase international obligation.

Mr Magwanishe (ANC) stated that it was important to define the "national interest". He asked whether a broad economic interest would be a national interest.

Mr Steve Swart referred to the submission of Ms Kota and suggested that the committee should get guidance from the foreign affairs legal section. He thought that such a clause covering this international request issue would be important and asked if there was any such provision in the existing Act.

Adv de Lange said that the current legislation limits the application of the Act to a threat to SA.

Adv Masutha suggested that one make a comparative study of what "compelling national interest" meant in other jurisdictions.

Dr Delport found that in addition to the four existing circumstances, he thought that if there were links to international crime or terror the Bill should facilitate interception and monitoring.

Adv de Lange found that he had a sixth area of application: in the investigation into forfeiture, there might be a case for interception and monitoring.

The Chair reiterated the five amended criteria to be considered by the judge in issuing a direction under Clause 4(2) of the Bill. The first deals with a serious offence that cannot be investigated in another appropriate manner, but there is a compelling national economic and safety interest demanding the issue of such direction. The second deals with the gathering of information in the case of an actual threat to public health and security. The third deals with the gathering of information regarding a potential threat to public health and security. The fourth deals with the commission of offences or the gathering of information in terms of an international obligation. The fifth deals with forfeiture powers by the authorities in this regard.

He also required the addition of the rider for 1,3,4,5 i.e. "no other means available".

The Chair stated that the last two were added, but that the forfeiture provision had to be redrafted in accordance with the constitution. Clause 4(2)(b) had been split into two separate provisions with the only difference being the "potential threat" concern and the addition of an extra test of necessity in this regard. He continued that this extra test was necessary to avoid abuse of the provision.

Ms F I Chohan-Kota (ANC) expressed dissatisfaction with the term "compelling national interest" and opted instead for a generic term that encompasses offences and consideration not covered by the second part of the provision.

The Chair then suggested it be narrowed to "national interest" to include concerns with public health and safety. He noted that this formulation offered the broadest scope to the provision, as these included concerns of national security as well as national economic interest.

Ms Chohan-Kota then questioned the need for the inclusion of the first part of the provision if the second could be successfully relied on.

The Chair stated that the second provision could indeed be employed, but that the test to be satisfied is higher than the one contained in the first provision. He continued that the second provision has a narrower scope and stricter test than the first provision.

Ms Chohan-Kota disagreed with the assertion that the test contained in the first provision was less strict than that in the second as "actually threatened" was as demanding a requirement. She was of the opinion that the aim of the provision should be to guard against a repeat occurrence of the September 11 horror in the United States.

The Chair conceded that "economic interest" be provisionally inserted in parenthesis to accommodate Ms Chohan-Kota’s concern.

Mr Mzizi (IFP) urged that the test be as strict as possible.

Advocate M T Masutha (ANC) inquired whether the protection of environmental integrity is included under "national economic and safety interest". He also warned against having a provision that is too wide in its scope as then a condition has to be inserted to curb any potential abuse. He suggested that a safer route would be to have a comprehensive list that would hopefully cover all the appropriate areas, and the consequent calculated risk of excluding potential offences would then be remedied at a later stage.

The Chair stated in response to Advocate Masutha’s first concern that "national economic and safety interest" was indeed wide enough to include environmental protection, and stated further that there is very little that is not affected by this phrase. He continued that the real test is "compelling national interests" and suggested that the environment was captured broadly under national economic or safety or health consideration here.

Imam G Solomon (ANC) requested the Chair to clarify the exact meaning of the term "national economic interest".

The Chair replied that the term includes two distinct rights. Firstly, the protection of rights in the public interest and secondly the protection of the rights of the individual contained in the Bill of Rights in the constitution. He stated further that the aim is to draft a clause that is constitutionally sound, but the danger lies in the fact that a clause that is too open-ended will inevitably result in constitutional inconsistency.

The Chair then turned to consider to whom the five abovementioned criteria apply. He noted that Mr Labuschagne, a drafter for the Department of Justice, suggested that they could apply equally to all four agencies concerned.

Mr Labuschagne suggested that the first provision applied to both the South African Police Services (SAPS) as well as the Scorpions. He continued that the second provision applied only to the National Intelligence Agency (NIA) and the South African Defence Force (SADF).

The Chair stated that it is seems clear why the NIA and SADF can use provisions two and three, but does not see how the SAPS and Scorpions could successfully employ these provisions. He continued that the fourth could be used by all four agencies, whereas the fifth provision could only be employed by the National Prosecuting Authority (NPA).

The Chair then summed up the position as follows. The first provision is to be used by the SAPS and Scorpions unit regarding the commission of offences. The second and third are to be used by the NIA and SADF to gather information. The fourth may be used by all four agencies in terms of the gathering of information or regarding the commission of an offence. The fifth can be used by the NPA alone.

Mr Labuschagne inquired whether the SAPS could have its own intelligence division that dealt with the assembling of information.

The Chair stated that such a division could not be an alternate or independent body that dealt with anything other that the gathering of evidence and information regarding offences. He stated further that the problem with incorporating a wide "national interest" lies in the fact that the ambit is broad enough to allow its own intelligence agency, and that this function is usually executed by a separate intelligence agency. He stated that these should not be "mixed" here.

Advocate Masutha suggested that the Bill’s handling of the SAPS be carefully scrutinised so as to avoid any undermining of the SAPS competence derived from the constitution itself.

The Chair replied that there is no constitutional problem at the moment as the first provision deals with an offence that "has been or is being or will probably be committed" includes any future or potential offences as well. He continued that it is thus clear that the intelligence gathering capacity of the SAPS in this first provision is not undermined.

Clause 3
The Chair then turned to Clause 3 of the Bill and called for all applications for approval to be in writing so that records of these may be maintained.

Clause 4
The Chair then considered submissions in the Summary regarding Clause 4 of the Bill. He noted that in terms of 1(b)(iii) on page 19 provision must be made for the appointment of a replacement judge to fill in, should Judge Gordon be unable to, due to illness or general unavailability.

Mr Labuschagne replied that a replacement is indeed employed in such an event.

The Chair stated that the precise conditions of such replacement have to be spelt out in the Bill.

Mr Labuschagne replied that the Clause 1 definition of "judge" in the current Bill does not preclude the appointment by the Minister of a replacement, but that such selection is limited to a retired or discharged judge according to this definition.

The Chair noted that, in terms of Submission 2(b), the Interpretation Act of 1953 clearly states that if provision is made for the single object then the plural also applies.

Ms S M Camerer (NNP) drew the Committee’s attention to Submission 2(a)(iv).

The Chair stated that this is not possible as "good" cannot be considered as a communication, which forms the focus of the provision.

Mr Labuschagne disagreed with the Chair’s statement and replied that goods or parcels are indeed capable of inclusion within the Clause 1 definition of "postal article".

The Chair responded that "parcels and packets" does widen the scope beyond communications.

Mr Labuschagne replied that Clause 4(1) does not only deal with communication but also postal articles.

Mr Mzizi enquired whether the hand delivery of a postal article placed in the suspect’s post box can be retrieved by the authorities without the appropriate court order under the Bill.

The Chair replied that a court order under Clause 4(1)(a)(i) and (b) is still needed.

Ms Camerer thought Submission 2(c) worthy of attention as only a "reasonable suspicion" is needed under Clause 4(1)(a)(i).

The Chair replied that Clause 4(1) does not apply before the tests in Clause 4(2) are passed, and that Clause 4(1) only provides for what can be done once Clause 4(2) is met. He then suggested a drafting problem with Clause 4 as it seems that the current Clause 4(2) should logically precede Clause 4(1).

The Chair then stated that Submission 3(b)(iii) was solved by being incorporated under the second provision detailed earlier.

Ms Camerer stated that Submission 3(c) was worthy of consideration.

According to the Chair Judge Gordon stated that he planned to consider technical feasibility in any event, as well as the costs involved in terms of the application.

The Chair stated that Submission 3(k)(i) was "ridiculous" as the directive in Clause 4(1) in any event included the furnishing of a sworn affidavit together with corroborative evidence, which seems more that sufficient.

The Chair agreed with Submission 5(a).

The Chair stated that Submission 6(b) put into question the need for Clause 4(6). He directed Mr Labuschagne to consult with the South African Law Commission to clarify this matter.

Mr Labuschagne postulated that the probable explanation for the inclusion of Clause 4(6) is that during the investigating of one offence committed by the suspect evidence of the commission of another offence is discovered, and Clause 4(6) would then be used here.

The Chair disagreed and stated that the court order applied for in this regard is not to enable the requisite authority to investigate the specific offence committed by the suspect, but rather to investigate the suspect him/herself as well as all his/her affairs.

Mr Labuschagne stated that the purpose of Submission 7 is to provide for the application for interception and the gathering of information in the same order.

The Chair considered that Clause 10(1) satisfies this concern, but not Clause 10(2). According to Mr Labuschagne Clause 10(1)(a) requires the authority to make a second application for call-related information if no such direction is issued initially. The Chair called for Clause 10(1)(a) to be amended to accommodate both these situations in the same application.

Mr Labuschagne disagreed and stated that Clause 10 dealt solely with call-related information, whereas Clause 4 dealt exclusively with the issue of direction.

The Chair stated that the problem with Mr Labuschagne’s proposal is that the provisions of Clause 10 will then have to be repeated in Clause 4, and therefore urges for a single provision dealing with both situations.

Clause 5
The Chair then turned to consider Submission 1(a) dealing with Clause 5 of the current Bill on page 22 of the written submission and agreed with the proposal.

Mr Labuschagne stated that such person should be a person "authorised by the officer or member who has made the application", so that certain safeguards against irregularities are put in place.

The Chair replied that Clause 5(1) merely provides for "any member", and called for the phrase to be deleted because if no member of the SAPS is deemed fit to exercise this function then surely no-one else can. He stated further that as a precautionary measure the phrase should temporarily be placed in parenthesis until the position is clarified fully, as the SAPS may indeed need to employ the services of a person not employed by the SAPS to in setting up the monitoring or interception.

The Chair then agreed with Submission 4(c), as the usual search and entry procedure requires a warrant.

Mr Labuschagne stated that the constitutionality of this provision would be reviewed as soon as possible.

Ms Chohan-Kota inquired whether the authorities would be afforded unlimited access to the suspect’s property as far as the maintenance of these monitoring devices is concerned, or whether they would each time have to apply for a court order.

The Chair stated that should such maintenance is necessary, the order by the judge in Clause 4 should allow such access.