Regulation of Interception of Communications & Provision of Communication-Related Information Amendment Bill (RICA): deliberations

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Justice and Correctional Services

18 June 2007
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Meeting Summary

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Meeting report

JUSTICE PORTFOLIO COMMITTEE
19 June 2007
REGULATION OF INTERCEPTION OF COMMUNICATIONS AND PROVISION OF COMMUNICATION-RELATED INFORMATION AMENDMENT BILL (RICA): DELIBERATIONS

Chairperson:
Ms F Chohan-Khota (ANC)

Documents handed out:
Latest version of the RICA Bill dated 19 June

Audio Recording of the meeting

SUMMARY
The State Law Advisors summarised the changes that had been made to the Bill since the last meeting. These included changes to the Long Title, the definition of "address", "customer" and "family member" in Clause 1. Further changes were suggested to the definition of "family member". It was decided also to add in a separate subparagraph to note that a family member, in the case of an orphan, would include a caregiver as defined in the Children's Act. That definition would not come into effect until the Children's Act was in operation, but the wording allowed for any subsequent changes to the definition as contained in the Children's Act.  The definitions of "identity number" and "informal settlement" had been altered in line with the Committee's instructions. 

Technical amendments had been made to Section 40(2) and 40(3), and it was agreed that the references to "an address" must be "the address". Section 40(5) had been altered and a minor change was further suggested to the references to a subsection. Sections 40(6) had been altered to clarify the references and 40(7) used the phrase "is or was a customer" to provide for the historic situation. A revised option was included for Section 40(8). Section 51(3A), (3B), (3C) and (3D) now provided for criminalisation of the failure to comply with different provisions of Section 40.

The new Section 62C required an employer to keep particulars of persons in his employment to whom cellphones were given. Typographical errors in the references to other sections were corrected. The Committee requested the date and period for which the cellphone was rented to be recorded, and suggested that the wording read "record", which would include writing, digital and electronic means. The heading was to be worked on by the drafters. The drafters had now amended Section 62(6) in accordance with the Committee's requests, and this now specified that all the provisions of Section 40 would apply also to this section. An option was now included to 62(6)(d) to provide that the service must be terminated if there was failure to register the service. Headings were now included for the new Sections 62A, 62B and 62C.

The short title and commencement were discussed. The problem was that Sections 40 and 62 of the principal Act were not yet in operation. This Amendment Bill sought to amend those sections. The State Law Advisors said that it would probably be necessary to amend Section 63 to provide that the principal Act's Sections 40 and 62 must come into operation simultaneously with the Amendment Bill, and that the Committee should specify a date. Further options were discussed and the State Law Advisors would report back to the Committee on the best option. The Committee hope to finalise the Bill by Friday 22 June.

MINUTES
The Chairperson welcomed Dr Delport back to the Committee and congratulated him on his appointment as spokesperson to the Democratic Alliance (DA).

Dr T Delport (DA) indicated that the appointments were for a five-year period by Parliament. He would be spokesperson for Justice and Adv Joubert would be spokesperson for Constitutional Development. He noted that he was pleased to be back in the Justice Portfolio Committee, which had a reputation for working well to improve legislation without taking party-political stances as a matter of principle. He reiterated his support and gratitude to the Chairperson and pledged full support to the interests of South Africa.

The Chairperson noted that even when the DA may have been opposed on principle to legislation it had always made an attempt to engage in the Committee and had not removed itself.

Regulation of Interception of Communications and Provision of Communication-related Information (RICA) Amendment Bill
Mr Sarel Robbertse, State Law Advisor, Department of Justice, indicated that the new changes were marked in grey highlights.

Long Title
Mr Robbertse said the original Bill made provision for limited amendments to the principal Act, No 70 of 2002 (the Act). In the deliberations new issues had come to the fore. The long Title was now amended to reflect the provisions for new definitions and to further regulate offences and penalties.

Clause 1: Definitions: "Address"
Mr Robbertse noted that the words "such" and "informal settlement" had been added to the address definition.

Clause 1: Definition of "customer"
The Electronic Communications Act  (ECA) had effected certain amendments to the RICA Act, and therefore the Bill had also been amended now to portray the amendments. The ECA had replaced the term  "telecommunications service provider" with "Electronic Communications Service Provider" and therefore corresponding changes had also been made in the Bill.

The main difference between the current and previous definitions was contained in paragraph (c)(ii), which now included a customer in the historical sense. He noted that the reference to a telecommunications service provider in that paragraph should read "electronic communications service provider for the provision of an electronic communications service..." He also noted that the "or" at the end of paragraph (c)(i) would be deleted. This would cover details asked in terms of Section 39, which would now include the details of present and past customers. The wording "where applicable" was provided because in certain instances the information relating to past customers would not be necessary.

Clause 1: Definition of "family member"
Mr Robbertse stated that the previous definition of family member had mentioned relationships "by law". The definition assigned "by law" did not include common law, but only statutory law. Under Option 3, the State Law Advisors had amended paragraph (a)(ii) the State Law Advisors had tried to include both statutory and common law relationships, including customary and religious law, and permanent life partners. The definition had also retained the affinity by marriage, adoption or foster care.

The Chairperson asked why the words "by statutory law" were used instead of "through an Act of Parliament".

Mr Robbertse said that both meant the same.

The Chairperson suggested that the option should rather read "by statutory, customary or religious law, including affinity by marriage, adoption or foster care". Common law would cover customary and religious law. This wording would also cover subordinate legislation.

The Chairperson asked if there was a social welfare register.

Ms Ina Botha, State Law Advisor, Department of Justice, stated that the Department of Social Development were in the process of establishing a register of orphans. Currently the Department had a SOCPEN register which recorded all persons receiving any type of grant. It did contain particulars of orphans. However, payments in respect of orphans under the age of 14 would always be directed through a caregiver. Over the age of 14 the type of grant would determine who received the payment.

The Chairperson noted that caregivers were defined in the Children's Act. She asked if they were specifically matched to orphans.

Ms Botha stated that it was wider and included a person who factually cared for a child, sometimes even with the consent of the parent or guardian, so it was not limited to orphans.

The Chairperson wondered if specific wording should be included, such as "family member means, in the case of an orphan, a caregiver as defined in the Children's Act". The problem was that the Children's Act had not been implemented, so the meaning would not take effect until the Act came into operation. She thought it would do not harm to put it in.

Mr Robbertse thought that perhaps it could be put in, and refer to the situation prescribed in the Act. Otherwise it would be possible to make reference by repeating the wording of the definition.

The Chairperson said that the definition might well be amended before the Children's Act came into operation, and she would like this definition to match with whatever was finally decided and applicable in the Children's Act. There would be a register of all grants. She suggested that the new definition be "family members means, in the case of an orphan, any caregiver as defined in the Children's Act 38 of 2005".

It was agreed that this would be inserted as a new paragraph (c) to the definition.

Clause 1 : Definition of "identity number" (page 8)
Mr Robbertse said that Option 3 had been amended. The reference to paragraph (a)(iii) was amended to refer to paragraph (a)(iv).

Imam G Solomon (ANC) noted that on pages 5 to 6, similar wording was used yet the punctuation was incorrect. In paragraph (b) there should be a comma after the reference to "the Republic". A hyphen could not be used, as appeared in paragraph (a), because there were no subparagraphs to follow.

Imam Solomon asked if the Minister of Communications was retaining that title, in view of the changes to the Electronic Communications Act. Mr Robbertse advised that it was the same.

Clause 1: Definition of "Informal settlement"
The definition of informal settlement had been amended by the insertion of "a place in an urban or rural setting used for residential purposes".

The Chairperson noted that this was drafted because there could be informal settlements also in urban areas, and the Committee wanted to ensure that there was clarity that informal settlements could exist anywhere.

Clause 2: Amendment of Section 40(2)
Mr Robbertse indicated that certain phrases had been inserted into Option 1 and these were of a technical nature, relating to the mobile number of the SIM card that was to activated by a service provider, at the request of a person who was or was not a citizen or permanent resident, or a juristic person. These changes were reflected in subparagraphs (2)(a) and (d). He noted that the references to telecommunications service providers would be amended to reflect "electronic communications service providers", as discussed earlier.

Clause 2 : Amendment of Section 40(3)(a): Option 6 (P. 16)
Mr Robbertse indicated that on page 16, Option 6 had been amended. These amendments referred back to Section 40(2).

The Chairperson wondered if the reference to "an address" should not be "the address". This would be consistent with the wording of the rest of the Bill, which required verification of the address of juristic persons, citizens and permanent residents, but not of foreigners.

It was agreed that this would be changed in both subparagraphs (a) and (b)

Mr Robbertse noted that in subparagraph (b) there was now reference to the information and the address contemplated in previous paragraphs. 

Clause 2: Amendment of Section 40(5): Option 3
Mr Robbertse noted that the word " immediately" had been inserted under Option 3, relating to information to be given to the electronic communications service provider. Sub paragraph (5)(b) in this option also referred to "all particulars as required in section 40(2)."

The Chairperson indicated that this wording was already contained in a subsection of section 40, therefore the wording under 40(5) (b) should refer to "all particulars as required in subsection (2)"

Clause 2: Amendment of Section 40(6)
Mr Robbertse noted that the phrase "contemplated in subsection 3(a)(iii)" was inserted. This referred to the documents required for verifying an address. Similarly the word "immediately" was inserted under paragraph (b) of this option.

Clause 2: Amendment of Section 40(7) Option 3 (P. 21)
Mr Robbertse indicated that the phrase "is or was" was inserted to make provisions for historical customers

Clause 2: Amendment of Section 40(8): Option 2 (P.21)
Mr Robbertse read out the amended wording, which was to the effect that a person suspecting the information might be false must within 24 hours report this to a police station

Clause 3: Amendment of Section 51(3A) (P. 22)
Mr Robbertse indicated that Section 51(3A) was now amended. Previously the failure to comply with Section 40 was not criminalised, and this new section sought to do so.

Subparagraph 51(3A)(b) inserted the words "or any determination made thereunder " to include the regulations that could be made by the Minister.

The new Section 51(3B) was inserted to criminalise failure to comply with Section 40(5), and this now included a "customer or person".

The new Section 51(3C) was inserted to criminalise a failure to comply with section 40(8) in relation to fraudulent behaviour

The new Section 51(3D) now provided for information required under Section 62C. There was differentiation between a juristic person and a rental company. The fine was now up to R2 million or imprisonment not exceeding 10 years.

Clause 5: New Section 62C (P 25)
Mr Robbertse then moved to Section 62C on page 25 of the latest draft.

Section 62C(1) required an employer to keep particulars of persons in his employment to whom cellphones were given. Section 62C(2) said that if a person rented a cellphone, the renter's information must be stored and kept for five years. Failure to comply with either of those sections was now criminalised.

Mr Robbertse indicated that there were two typographical errors. Under Section 62C(2)(b)(iii) the reference should be "the address contemplated in Section 40(3)(a)(iii)" Under Section 62C(2)(b)(iv) the reference should be "the documentation contemplated in section 40(3)(b)"

The Chairperson asked why "record" could not be used, which would include details in writing, digitally and electronically.

Mr Robbertse agreed this would be changed.

The Chairperson noted that the date and period for which the cellphone was rented must be included in the wording. Mr Robbertse agreed that this would be amended.

Mr Robbertse indicated that the heading to this section was incorrect. He pointed out that a rental company was already a juristic person, so the wording was tautologous and he would try to find another heading.

Dr Delport indicated that the rental institution might not be a company, and perhaps the problem would be solved if the heading referred to "rental enterprise" or "rental business" or "rental outlet". However, he thought that not much turned on the heading.

The Chairperson suggested that the heading could perhaps include words to the effect of "..or persons who lease SIM cards or cellular phones". Even if a person was an individual, and rented the phone out as a one-off, this would have to be covered.

The Chairperson asked what kind of records were required in Section 62C(1).

Mr Robbertse indicated that this was intended to cover a "pool cell phone" that was actually registered in the name of the company. It was merely necessary to be able to identify who was using it at any stage.

Imam G Solomon asked why, under Clause 62C(b)(i), the words "identity number and identity" appeared.

The Chairperson clarified that the identity would need to be verified with a photograph as well as the identity number being checked.

Clause 3: Insertion of Section 51(5)(bA)
Mr Robbertse said that this was inserted to ensure that any electronic communications providers were not relieved of certain obligations.

The Chairperson asked why the previous draft had referred to Section 62(5).

Mr Robbertse indicated that this was a mistake and the current references to Section 62(6) (a)(b) and (c) were correct.

Clause 5: Amendment to Section 62 (6) of the Act (P. 23)
Mr Robbertse indicated that the drafters had two options when approaching this section. Either all the provisions of Section 40 could have been mirrored again in Section 62, or there could be reference in Section 62 to the fact that the applicable parts of Section 40 would also apply to this section. The latter option had been followed, and this was now reflected in the redrawn Sections 62(6)(a) and (b).

The Option to subparagraph 62(6)(d) was now included, following the request of the Committee, to provide that if a customer failed to register a cellular phone or SIM card, the service must be terminated by the service provider.

Clause 6: Inclusion of headings to the new Sections 62A, 62B, 62C (P. 24-25)
Mr Robbertse indicated that headings had now been included. This did not require discussion

Short title and commencement
Ms Botha indicated that the Committee needed to consider the commencement date. Sections 40 and 62(6) of the principal Act were being amended by this Bill. However, those two sections of the principal Act were not yet in operation.

If the Amendment Act was silent on the date of operation, then on the date of its publication all the amendments would come into operation, as worded in the Amendment Act. This would mean that the two sections would read strangely and not be complete.

The sections in both the principal Act and the amending legislation should come into operation simultaneously. If the Committee wanted this to happen, then it would be possible to amend Section 63 of the principal Act, and renumber it as 63(1), while adding a subsection (2) to the effect that, notwithstanding the fact that the President must fix a date, sections 40 and 62 of the principal Act are deemed to come into operation on the date of the Amendment Act. A date would then have to be fixed for the Amendment Act to come into operation.

Dr Delport asked why the principal Act could not be amended so that Sections 40 and 62 would come into operation immediately.

The Chairperson noted that the principal Act was already in operation, except for Sections 40 and 62, which still needed to be promulgated. It would probably be simpler to amend the Amendment Bill, to specify that whenever the Amendment Bill came into operation, so much Sections 40 and 62 of the principal Act.

Dr Delport said that another alternative might be to repeal the whole of the original Sections 40 and 62 of the principal Act, and then rework them, including all amendments to be decided on, in the Amendment Bill.

The Chairperson noted that this would change the character of the Bill, and it could then not be regarded as an amendment Bill.

Mr Lawrence Bassett, Chief Director: Legislation: Department of Justice, said that he would check which would be the better option, and revert to the Committee.

Mr L Landers (ANC) asked how long this would take. The service providers were already being given twelve months to enter the information and he was worried that this would unduly drag out the process.

The Chairperson thought it would be preferable to try to legislate for a commencement date. She noted that the suggestion by Ms Botha would not require as many technical amendments. The amendment nature of the Bill would be kept, and it would say specifically that the commencement of the principal Act's Sections 40 and 62 would coincide with the commencement date of this Bill. That would give the Committee more control over the date and would not extend the process.

It was agreed that a new draft would be drawn up, to be presented at the following day's meeting as a voting draft with all options and amendments. The Committee hoped to finalise the matter by Friday this week.

The meeting was adjourned.

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