Judicial Matters Amendment Bill; Interception and Monitoring Bill; Constitutional Amendment Bills: deliberations

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
15 October 2001
JUDICIAL MATTERS AMENDMENT BILL; INTERCEPTION AND MONITORING BILL;THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA AMENDMENT BILL AND THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA SECOND AMENDMENT BILL: DELIBERATIONS

Chairperson: Adv De Lange (ANC)

Documents handed out:
Judicial Matters Amendment Bill [B43 – 2001]
Interception and Monitoring Bill [B50-2001]
Constitution of the Republic of South Africa Amendment Bill [B68–2001]
Constitution of the Republic of South Africa Second Amendment Bill [B78–2001]
Summary of Submissions on the Interception and Monitoring Bill

SUMMARY
The Committee considered the general proposals on the Interception and Monitoring Bill and it was pointed out which submissions were used and which rejected. The Bill will now be redrafted by the Department.

Adv De Lange led the discussion on the Judicial Matters Bill. There were only three matters to be completed and that concluded work on the Bill.

The Committee considered a small number of amendments to the Constitutional Amendment Bill which had been suggested in the course of the discussions. Of primary concern or interest were those changes that related to Chapter 13 legislation. These Bills have been extensively discussed and at this point the discussion was predominantly technical in nature.

JUDICIAL MATTERS AMENDMENT BILL
Adv De Lange explained that the Committee was looking at different mechanisms for dealing with awaiting trial prisoners, as it is the people at the bottom, who have been arrested for small crimes that often suffer. They were considering two procedures. The first being that officials can take these prisoners back to the magistrates for reconsideration. The second is the proposal that the court only gives a bail amount if it is absolutely necessary to keep the accused in custody. In other words it must be strictly necessary to pay money to ensure attendance by the accused. If this is the case then the magistrate must also give an amount that the accused can pay. Adv De Lange (ANC) explained that Mr Pashka at Justice had made these proposals to try and alleviate this problem, and their feeling is that they are good suggestions, but they need to be incorporated.

The Bill amends the Criminal Procedure Act by adding to Section 63A. Adv De Lange referred to page three of the amendments where Section 63A(1) reads, "who is not also in detention in respect of any other offence falling outside the category of offences referred to in paragraph (a)". He asked whether everyone was happy with the wording?

Adv De Lange said that to address Ms Camerer’s problem in Section 63A (2)(c) they have added a "must" or a "may", and they will leave it to be voted on in the future. The section now reads, "The clerk of the court must, without delay, cause the application to be placed before any magistrate or regional magistrate, as the case may be, who must/may consider the application in chambers".

Adv De Lange continued to say that Mr De Lange (Department) will actually go off and write a new Bill. Adv De Lange said that they will pass the first amendment now.

Adv De Lange said the directives usually appear in the Government Gazette. This provision says that you must first submit the directives to Parliament before you put the procedure into operation.

Mr De Lange added that it will be published in the Government Gazette, and that in addition clause numbers have been added to this Bill, the implication being that this makes it quite final.

Adv De Lange said that the amendments seemed fine, but he questioned whether it was acceptable to leave it to the Department as the provisions are quite wide.

Ms Chohan-Kota (ANC) said that with regards to page nine and the appointment of Sheriffs it seems to be more appropriate to allow provinces to elect two members into a pool of Sheriffs. Sheriffs would be hard pressed not to nominate a person of colour or a woman into the pool, and then the Minister will be in more of a position to elect a diverse group. Adv De Lange replied that page seven would be amended accordingly in order to obtain diversity.

Adv De Lange went through the remainder of the amendments to make sure that they had all been covered. This concluded the work on the Judicial Matters Amendment Bill but there was one further problem. Mr Hofmeyr (of the Special Investigative Unit) had contacted him and raised a question. Where the SIU brings civil cases on behalf of an institution, what gives them the authority to do this? Adv De Lange said that he had told Mr Hofmeyr that if this is a substantial issue they will not deal with it now, but if it is merely technical they will be able to deal with it now.

Interception And Monitoring Bill
Adv De Lange said that although they had gone through this Bill they had not looked at the general proposals on page three of the Summary of Submissions on the Bill. He went through each point of the general proposals and discussed the following.

The proposal by Marshall International in 1(c) was interesting, not 1(a) and 1(d).

Adv De Lange responded to Privacy International saying 2 (a) is just blowing in the wind. They have made changes for where the Bill conflicts with the Constitution, for example where the Bill was too wide they have narrowed it. Furthermore, warrants must be created with a court order. He said that with regards to (b)(i) there are already such reporting mechanisms. He was opposed o their proposals at b(ii) and (iii).

Adv De Lange said, regarding the South African Police suggestions, their 3(a) and 3(b) will become point four in the Bill. They have created a clause in the Bill where information can be requested between countries, for example a judge can look at a request and see if a tapping order should be granted. With regards to 3(c) he said that Clause 11 of the Bill is the best that they can do, in that they are trying to create a paper trail from the dealer. This would enable one to go to the service provider and trace where the cell phone has been used. He reiterated that all that you can do is pinpoint a radius, and therefore they should check what the police mean. He said that in both 3(d) and (e), they agree that a new crime is being created.

With regards to Vodacom’s suggestions, point 4(a) is a general statement without proof. Point 4(b) is a good idea which has been included, and point 4(b)(ii) has also been included.

Mr Labuschagne raised a question with regards to 4(b)(iii) and said that he was not sure if the complaint is to be made to the police or the service providers when one reports a stolen cell phone. Adv De Lange answered that it is a duty towards the police, and they cannot create an obligation to the service provider as this would be governed by the contract between the service provider and the client. Adv De Lange continued to say that the reason for this is to prevent a person from being implicated in a crime if their cellphone is used in the commission of a crime.
Adv De Lange said, regarding the suggestions made by Article 19, point 5. Point 5(b) was adopted that the intelligence committee can. While 5(b)ii) and (iii) cannot be done. Point 5(c) has been used.

Adv De Lange said, regarding UUNET SA’s suggestions, that he did not know what they meant in point 6 and the rest were not relevant.

Adv De Lange said that they had dealt with the suggestions made by IPSA

Adv De Lange said that the suggestion made by the South African Institute of Race Relations that the short title should read "Monitoring and Interception Prohibition Act, 2001" was a good suggestion. Mr Labuschagne (Department) explained that this was in fact the title of the existing Act, and because in this new bill there are so many exceptions they cold not call it a prohibition bill. Ms Chohan-Kota (ANC) suggested that the word ‘regulating’ be used instead. Adv De Lange agreed and said that the "Regulation of the Interception of Communications Act" be considered, and they will do something about the name.

Adv De Lange asked what the submission made in point 9 B Wright meant, and Mr Labuschagne answered that it is very technical and needs to be checked up.

Adv De Lange said, regarding the suggestions made by CTUF that point 10 (a) is not for them to do, and number 10 (b) is to be done by a judge.

Adv De Lange said the suggestions made by LIASA in point 11 (a) does not need to be embedded because if it conflicts with the Constitution it will be struck down.

Adv De Lange said, regarding the suggestions made by BRIDGES ORG that they cannot do most of them and he does not know what they are talking about.

Adv De Lange said, regarding the suggestions made by TELKOM that he does not know why they think they are going to be involved as their staff will actually never have to give evidence.

Adv De Lange said, regarding the suggestions made by CELL C, ‘the new kids on the block’, they could not use most of their suggestions. Mr Labuschagne (ANC) said that with regards to 14(c) the Law Commission had the same view. Adv De Lange responded that sometimes the Law Commission is wrong, and he did not discuss the rest.

Adv De Lange said, regarding the suggestions made by the FREE MARKET FOUNDATION, that you would expect that from them.

Adv De Lange said, regarding the suggestions made by SACOB, that for point 16(a), the balance is there, and point 16(c) should be disregarded. He asked the Committee what they thought about Point 16(b) and whether they thought that there should be a preamble.

Adv De Lange said, regarding the suggestions made MTN, that in 17(d)(I), the estimate is ridiculous and the rest is done. He continued to warn that in 16(g), it is the Minister of Communications who does all of that. Mr Labuschagne thought they meant is that if they submit the data they do not want to have to go to court. Adv De Lange said that it is very unlikely that the data will actually be used as evidence. Also he was not prepared to allow this as it creates the possibility of infringing the rights of individuals, as individuals must be given the opportunity to challenge the phone statements in court, and he is very wary about changing the laws of evidence.

Adv De Lange said, regarding the suggestions made by IDASA that they have been used.

Adv De Lange said, regarding the suggestions made the DIRECTORATE OF SPECIAL OPERATIONS, point 19 is terribly stupid suggestion. Mr Labuschagne said that the suggestion in 19 (b) was also made by the National Director of Public Prosecutions (NDPP) and will be considered.

Adv De Lange said, regarding the suggestions made by the SAHRC, that they could not do what was suggested in 20(a). You must distinguish between situations in which you can intercept and situations in which you can use the information. He made it clear that the Bill only allows you to intercept, and it does now allow you to use it as it is in this latter situation that all the other rules apply.

Adv De Lange said, regarding the suggestions made by MISA, FXI and SANEF, that number 23(a) has been dealt with as you must always get a court order.

Discussion
Mr Labuschagne (Department) said that in Canada third party surveillance and participant monitoring is absolutely prohibited, but in the USA it is the opposite.
Adv De Lange said that they have agreed with Judge Cameron’s approach which is essentially the American approach. The Canadian approach is too artificial and uses the example of a tape recorded piece of evidence. He explained that in American you can use the actual tape recording while in Canada you have to remember what was said.

Mr Mzizi (IFP) said that the problem was if you do have a tag which is recording the conversation, do you have to inform the person that you have a tag? He was concerned that this was self-incriminating.

Adv De Lange answered that there are two situations, the first is when you get an order to tap and the second is where two people have a conversation. He said that the courts have said that participants can tap, but third parties cannot be authorised to do so. The Act now allows a participant to tap their own phone with the use of a company. He continues to say that there is a need for a legal framework in order to regulate it, as the private tapping companies have gone amock.

Mr Mzizi (IFP) used an example of where a witness in court has to look at his statement in order to refresh his memory, then that statement becomes inadmissible.
Adv De Lange explained the issue again, and then said that everyone should give Mr Labuschagne any more details that they might come across.

Constitution of the Republic of South Africa Amendment Bill
Speaking in the National Assembly
Clause 1 called for a substitution of Section 54 of the Constitution. This section would be changed to provide that "the President and any Member of the Cabinet or any Deputy Minister who is not a member of the National Assembly may attend and may speak in, the Assembly, but may not vote." Adv de Lange suggested that here the provision should be made "subject to the rules and orders of Parliament". This would need to be done to avoid the possibility of giving such a person an absolute right.

Tenure of CC judges
Adv de Lange then touched on the topic of the tenure of Constitutional Court judges. He told the Committee that he and Mr de Lange had been working on a list that contained a number of possible options, but they did not have it with them. Adv de Lange told the Committee that he had begun to favour one of the options on the list, which he felt would silence some of the people who were displeased with the changing of the Constitution. Adv de Lange suggested that the provision be drafted to provide that except where an Act of Parliament expressly extends the term of office of a certain Constitutional Court (CC) judge, their term of office will be a non-renewable term of 12 years.

Adv de Lange told the Committee that the words ‘Act of Parliament’ meant it would have to be national legislation. The provision then makes reference to the term of a specific CC judge. This means that the tenure for a specific judge could be extended as opposed to the tenure of all judges. This would take care of the concerns that not all judges should be on the CC bench for too long. This might be for a number of reasons, including age and mental capacity.

Ms F I Chohan-Kota (ANC) felt that the provision was perhaps not ideal because it provided for the extension of tenure of certain individual CC judges. Ms Chohan-Kota admitted to being nervous about extending the tenure of a specific judge in the legislation. In a position like this it is not hard to imagine that in the future people will make reference to the Arthur Chaskalson Bill.

She stressed that she was uncomfortable with the window that would allow for the extension of a single judge’s tenure through legislation. It was not hard to foresee that a certain judge could be prone to making particularly favourable executive rulings. If this were so, it would not be hard for those it would favour to extend this judges tenure. She however acknowledged that this was originally included to accommodate the concerns of sceptics.

Constitution of the Republic of South Africa Second Amendment Bill
Clause 1
The Department submitted that on page 3, from line 4, that paragraph (b) be omitted and substituted with "(b) a Bill which provides for legislation envisaged in Section 213(1), 214, 223, 225 or 226(1). Adv de Lange told the Committee that he and Mr Khala from the Department of Finance had discussed the matter and come to the conclusion that para (b) should be narrowed. The narrower version would apply only to Section 214 legislation. The rest of Parliament would then be able to introduce legislation of the other kinds formally contained in Subclause (b). However, a new Subclause will be drafted to provide that all other Chapter 13 legislation can be introduced only after there has been consultation with the Minister of Finance.

Clause 2
The Department of Finance suggested that the reference to ‘national’ be removed. This was suggested because it was felt that the word ‘national’ was not necessary as in that context the only interpretation would be national. The same would be done for the reference to the word ‘national’ in lines 21 and 27.

Clause 3
Clause 3 of the Bill was rejected subject to reevaluation by the Department of Provincial and Local Affairs.

Clause 4
In Clause 4 the Department called for the omission of the word ‘provincial’ in lines 18, 20 and 25. This would be done for the same reasons for the omission of the word ‘national’ in clause 2.

Clauses 8 and 12
Adv de Lange was confused as to why the Department wanted to delete Clause 8. He then realized that Clause 8 was to be read with Clause 12. Clauses 8 and 12 dealt with the appointment of representatives to the Financial and Fiscal Commission (FFC) and Adv de Lange said that if Clause 12 was dealt with well then Clause 8 could in fact be deleted. Adv de Lange also explained that he understood the clause would have a separate subsection that would provide that the President would make appointments subject to consultation with local and provincial government.

Adv de Lange reiterated that it would be important to keep in mind that broad criteria would have to be drafted to include an element of representivity without venturing into fully fledged representation of any province at the FFC. If this was done correctly then the provision relating to expertise, starting at line 26 of the Bill, could be removed. The skill requirement would therefore be contained in those broad criteria that were mentioned above.

The meeting was adjourned.