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JUSTICE PORTFOLIO COMMITTEE
22 June 2007
REGULATION OF INTERCEPTION OF COMMUNICATIONS AND PROVISION OF COMMUNICATION-RELATED INFORMATION AMENDMENT BILL (RICA): ADOPTION
Chairperson: Ms F Chohan-Khota (ANC)
Documents handed out:
Final version of the RICA Bill dated 22 June
Taxation Laws Second Amendment Act
Regulation of Interception of Communications and Provision of Communication-related Information Amendment Bill [B9-2006]
Audio Recording of the Meeting
The State Law Advisors tabled another version of the Regulation of Interception of Communications and Provision of Communication Related Information Amendment Bill. They highlighted the major changes effected at the instruction of the Committee. Many of the amendments were of a technical nature. A new Section 40(9) was introduced to address concerns raised over the practical application of the legislation in situations such as the 2010 World Cup, where there would be an influx of foreign cell phones into the country. This new subsection allowed the Minister, in exceptional circumstances, and after consultation with the Ministers in the Security Cluster, plus the Minister of Communications, to exempt electronic communications service providers from compliance with Section 40, for a period of three months. A new Section 62C(1) had been drafted in respect of particulars to be kept by juristic persons for “pool” cellphones in a company or organisation. The short title and commencement were amended so that the Amendment Act must come into operation on 1 January 2008 or an earlier date determined by proclamation in the Gazette. Its operation would also bring into operation the provisions of Sections 40 and 62 of the principal Act, which were not yet in operation. Revisions that had been included in previous drafts, relating to Section 56 of the Act, had now been removed altogether, for practical reasons, but might be reintroduced while the Bill was being considered by the National Council of Provinces.
The Committee then proceeded to deliberate the Bill clause by clause. In relation to the definitions of Clause 1, the Committee resolved to adopt the Option 3 definition of “activate”; Option 4 of the definition of “address”, the new definition of “customer”; Option 3 of the definition of “family member”,’ Option 3 of the definition of “identification document”, Option 3 of the definition of “identity number” and the definition of "informal settlement". In Clause 2 the Committee adopted Option 1 of the revised Section 40(1); Option 1 of revised Section 40(2), Option 6 of the revised Section 40(3); Option 3 of the revised Section 40(4) and Option 3 of the revised Section 40(5). It also accepted Option 3 of the revised Section 40(6), Option 3 of the revised Section 40(7), Option 1 of the revised Section 40(8) and the completely new Section 40(9). Clause 3, relating to the revised Section 51, was accepted with the latest amendments. Clause 4 related to the revised Section 62 and the paragraph named “option” was accepted for Section 62(6)(d). Clause 5 inserted new Sections into the Act. Option 2 was accepted for Clause 62A; and the new clauses 62B and 62C were approved. Clause 6, amending Section 63, was approved and Clause 7, the short title and commencement, was approved.
The Bill was adopted unanimously by the Committee. The DA recorded its concern about the fact that South Africa was apparently the only country which insisted upon foreign visitors having to register before being able to use their cellphones, but noted that this was a matter needing to be investigated by the service providers.
Briefing by Department on latest version of the Bill
Mr Sarel Robbertse, State Law Advisor, Department of Justice, noted that there had been some amendments to some of the clauses, following the Committee’s instructions. He tabled the new version of the Bill and noted that the latest amendments were highlighted with grey shading.
Clause 1: definition of “family member”
Mr Robbertse indicated that subparagraphs (a)(ii) and (c) had been added. Subparagraph (ii) was widely worded and would include affinity by marriage, both in the lateral and horizontal lines, adoption or foster care. Subparagraph (c) related to an orphan whose care-giver was as defined in the Children’s Act. Although this Act was not yet in operation, the Committee had wanted to ensure that when it did come into operation this definition would be consistent with it.
Clause 1: Definition of “identification document”
There were technical amendments to Option 3, effected by addition of the words “who is” as an introduction to each category.
Clause 1: Definition of “identity number”
There was a technical amendment to clarify the references to the documents, which had now been extended by being listed in subparagraphs (a)(I), (ii) or (iii) of the definition of “identification document”
Clause 2: Amendment of Section 40(3)(a) : Option 6 (p. 16)
There was a technical amendment to tie together subclauses (a) and (b) in Option 6.
Clause 3: Amendment of Section 40(5): Option 3 (p. 19)
This option had been changed by the addition of the words “must, immediately upon the sale or provision of the cellular phone of SIM-card”. This related to the obligation of a person selling or lending a cellular phone to any person other than a family member to provide details to the electronic communication provider (formerly the Telecommunications Service provider)
Clause 3: Amendments to Section 40(8): Option 3
These were technical amendments.
Clause 3 : Additional subparagraph 40(9)(a)
Mr Robbertse pointed out that some concerns were expressed on the practicality of the requirements that foreigners would not be able immediately to use their cellphones, but would have to have the registration process completed. He indicated that the new Subsection 40(9)(a) had been created to make an exception to the registration requirements for foreigners under certain circumstances. The Minister, after consultation with other Ministers in the Security Cluster (who were the "relevant Ministers" according to the definition in the principal Act), plus the Minister of Communications, could exempt service providers from compliance with Sections 40(2) and (3) for a period of three months. "In consultation" meant there must be concurrence. This exemption would apply only to foreigners. The conditions to be taken into account had to be weighed up against security and crime considerations, as set out in sub clause(9)(b). When the three month period expired there would reversion immediately, without the need for any Ministerial action, to the normal position.
The Chairperson noted that the conditions in the notice were separate from the points in (b), which related to whether there were exceptional circumstances justifying the operation of this clause. She did not believe that that "in consultation with the said Ministers" could be taken out from (9)(a)(ii). The consultation process was up front. She stressed that this clause would only be applicable in exceptional circumstances, and the Minister would have to take into account certain factors. The new Section 40(2) would apply on the date of commencement of the Bill, then it was possible to have an exemption for three months under 40(9), but then immediately on expiry of that date Section 40(2) would again apply, without any other notices having to be issued.
The Chairperson indicated that she would like a change to the wording of (9)(b)(i), which referred to "a visit" although there was no other reference to this anywhere in the Bill. She suggested that the wording should rather read "the extent to which an international event hosted by the Republic may be affected".
The Chairperson confirmed that the other subclause containing "the purpose of the visit" in (subclause (iv) was already captured in subclause's (i) objective of universal access.
Mr L Landers (ANC) asked what would make the Minister issue the notice
The Chairperson said that this was specifically designed with the World Cup in mind, and was an enabling clause. Cabinet would most likely make a decision on this matter. The clause merely provided for the possibility of exemption. It would be invoked by Ministerial discretion, not on application from anyone, and particularly not from the service providers
Adv L Joubert (DA) said that this was the only principle in the Bill of concern to the DA, and he was not sure whether this addressed the concern. If the requirement for registration of foreigners was applied, South Africa would be the only country in which a visitor still had to go through a further process before being able to make a call.
The Chairperson said that currently the cellphone providers had agreements internationally so they could get the information in advance of the visitor arriving to ease the process. At the moment there was no way to get this information legally. What was happening at the moment was happening outside the legal framework. If there was a way to get the information electronically, that would address many practical concerns. However the Committee was concerned with establishing the legal framework within which the practicalities would then operate. She understood the DA's concerns, but believed that there had not been full research on this particular issue. The difficulty with many countries was that although there were stringent systems, it was difficult to get easy access because the situations were not covered in legislation but instead in the terms and conditions of the licences of the service providers. She was not sure that South Africa was alone in imposing these restrictions.
The Chairperson reiterated that this legislation would require every South African to register details, to be able to prove ownership if necessary in Court. The current legislation allowed foreigners - especially those wanting to operate illegally - to get their phones and register them outside the country, and there were no controls. The registration provisions were in fact included in the original legislation (although not yet in operation) and during the public participation process a number of issues were raised that this legislation now sought to address. The Committee could not draft around the "how to implement" but had to look at "why to legislate". There may well be technologies used by other countries, which South Africans could tap into, to ease the logistics of the registration.
Adv Landers said that his party was concerned about the "how", and thought that the individual visitors should not have to stand in queues, but rather that the service providers would have to find the best way of dealing with this.
The Chairperson agreed, and noted that the service providers understood that they must look to doing this. She accepted that convenience was a major factor. She noted that there were some interesting issues in Japan, which was even contemplating making it illegal for pre-paids to operate in Japan, because they were impossible to get on to the systems. She reiterated that it was not easy to access the research. It might well be better to attach conditions to licence provisions. There were some interesting examples of how countries had registered historic customers. She said that although she understood and appreciated the problems that the DA had, there was really no other option at present. The solutions would have to be found by the service providers. Clause 3: Amendment of Section 31(3A)(c) and Section 51(3D)(bA)(iii)
Mr Robbertse indicated that a reference to section 62(6)(d) had been inserted in both these sections.
There was also a contextual insertion of the word "person" in 51(3D)(b)
Clause 4 : Amendment of Section 62C
This was redrafted both in respect of the title to the section, and to specify what particulars must be kept if a "pool" cellphone was handed out.
Mr Landers asked if the words "keep proper record" in Section 62C(1) was correct and was assured that it was.
The Chairperson asked whether the records must be kept in accordance with section 40(2), or whether the person or juristic person handing out the phone must keep records only of the person to whom it was handed.
Mr Robbertse said that the particulars of the phone would already have been recorded. The cellphone must be identified, and the SIM card must be noted, as having been handed to a particular employee.
Clause 6: Short Title and Commencement
Mr Robbertse indicated that the Committee had requested the drafters to look at how to implement the Bill simultaneously on assent and publication. This had been done by adding a new subsection (2) to Section 63 of the Act, noting that although the rest of the Act had come into operation by proclamation of the President, Sections 40 and 62(6) of the Act must come into operation simultaneously with the operative date of the Amendment Act. The date was set as 1 January 2008, or an earlier date if possible.
Section 56: Sanctions
The Chairperson noted that there had been discussion during an earlier meeting as to whether the sanctions should include withdrawal of the licence of the electronic service provider if there was lack of compliance with the provisions of Sections 40 and 62. Earlier drafts of the Bill had included some amendments to Section 56.
However, on further investigation, the legal advisors had expressed concern that although the wording used had given the power of revoking the licence to the Minister, there was some doubt whether the task in fact fell to him or to the Independent Communications Authority of South Africa (ICASA). They were having some difficulty in tracking down the empowering mechanisms. In view of the fact that they would not like to delay the passage of this Bill, it was decided, in consultation with the Chairperson, to take out this clause's amendments from the current draft. This was an "add-on" and was not really that material to the implementation of the other provisions of the Bill as sanctions were already provided for in the form of fines of R100 000 per day. There was also some doubt whether a failure to comply with Sections 40 and 62 fell within the same range as failure to ensure that equipment allowed for interception of communications (the only matter currently covered by Section 56) and the proportionality of the proposed changes would need to be considered. The drafters would be conducting further research while the Bill went to the National Council of Provinces. Should there be a need and desirability to amend Section 56, then another clause could be added to the Bill when it came back again to the National Assembly.
The Committee agreed with this course of action.
Voting on the Bill
The Chairperson indicated that the Committee should now go through the process of choosing the options. Normally these would be transcribed into a document on which the Committee would vote. However, in view of the shortage of time, Members were requested merely to make notes on their papers, and the final draft of the Bill that had been approved would be circulated the following week for information and confirmation.
The Committee then proceeded to go through the Bill clause by clause.
Clause 1: Definition of "activate"
This was approved by all parties.
Clause 1 : Definition of "informal Settlement"
Option 3 to the definition of informal settlement was agreed upon by all parties
Clause 1: Definition of "address"
The ANC and DA agreed on option 4
Clause 1: Definition of "customer"
This was approved.
Clause 1: Definition of "family member"
All parties agreed to accept Option 3, which included the separate provisions for orphans and caregivers.
Clause 1: Definition of "identification document"
All parties agreed to vote for Option 3, which included provision that a South African passport could be used, since this might be needed for children under 16.
Clause 1: Definition of "identity number"
All parties agreed that Option 3 would be used, with the insertion of the words "subparagraphs (a)(i)(ii) or (iii)" on the 4th line of Option 3.
Clause 1 Definition of "informal settlements"
This definition was approved.
Clause 2: Amendment of Section 40
The Chairperson noted that Option 1 of the new Section 40(1) contained the same concepts, but worded in a different style.
All parties agreed that Option 1 was preferable.
Clause 2: Amendment of Section 40(2)
The Chairperson indicated that the ANC preferred Option 1. Option 3 included the address of the family member with the affidavits, but the idea was rather to try to avoid the paper trail approach.
The DA agreed and Option 1 was approved.
Clause 2: Amendment of Section 40(3)
Option 6 was approved by all parties, as it neatly broke down each category of individuals. This was important because foreigners had been separated from citizens and permanent residents.
Clause 2: Amendment of Section 40(4)
The parties agreed to approve Option 3. It was pointed out that the enabling clause was added to allow the Minister to specify what type of security there needed to be.
Clause 2: Amendment of Section 40(5)
The parties agreed to approve Option 3, as now amended by the addition of the words "must, immediately upon the sale or provision of the cellphone or SIM card.."
Clause 2: new subsection 40(6)
All parties agreed that Option 3 was the preferred option.
Clause 2: Section 40(7)
The Chairperson indicated that this subsection referred back to the provisions of Section 39 of the principal Act. Option 3 contained a restatement of Section 39, rather than merely referring to it. This restatement was intended specifically to set out the provisions relating to cellphone providers.
All parties agreed to adopt Option 3.
Clause 2: Subsection 40(8)
It was noted that this now contained the duties of a person suspecting that the document was false. The ANC considered that Option 2 was too complex. All parties agreed that Option 1, as the neater option, was preferred.
Clause 2: New subsection 40(9)
This did not contain any options, but did contain the new changes discussed earlier in the meeting.
Adv Joubert noted that he would comment on the provisions during the voting process, but would not oppose this clause. It was approved, with the changes in the wording suggested earlier by the Chairperson.
Clause 3: Amendment of Section 51 (3)
The Chairperson indicated that this clause the references to the sanctions, and because there were different contraventions, they were separately referenced. This clause was approved.
Clause 3 : Insertion of Section 51(3A)
This clause was approved.
Clause 4: Amendment of Section 62 (6)
The chairperson noted that the option listed related to the new Section 62(6)(d), which provided for registration of existing customers within 12 months. The ANC would prefer to use the paragraph marked "OPTION: (d)", listed as the second paragraph (d) on page 24. The DA agreed. The wording as given for Clauses 62(6)(a) to (c) was approved and the Option subparagraph (d) was also approved.
Clause 5: insertion of Sections 62A, 62B, 62C
The Chairperson indicated that the ANC would prefer Option 2 for the new Section 62A on page 25. The differences referred to the consultation with the Ministers.
All parties approved Option 2.
All Members also accepted the new Sections 62B and 62C
Clause 6 : Short title and commencement
All members agreed to both sub-clauses.
Clause 7: Short title and commencement
This was agreed to as stated.
Adv L Joubert stressed that in principle the DA would support the whole piece of legislation but was only concerned about the effect, economically or otherwise, of placing restrictions on the right to use roaming facilities immediately on landing in South Africa. He noted that this was apparently an issue that would be looked at by the cellphone providers, but nonetheless wished to voice his concern. He was not intending to oppose the Bill.
The Chairperson read out the Motion of Desirability.
The Bill was unanimously accepted, with the noting of Adv Joubert's concern.
The Chairperson indicated that normally a Memorandum of Objects would be attached to the Bill. On occasion this had been delegated to the Chairperson.
All Members agreed that the Chairperson would be delegated to approve the Memorandum.
The Chairperson indicated that the Bill would not be debated in the House during this term, but it should be on the first sitting Order Paper for the next term. The Bill would then be referred to the National Council of Provinces, and there might be a come-back on Section 56.
The Chairperson thanked all who had been involved in the drafting and consideration of the Bill.
The meeting was adjourned.
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