Mandating Procedures of Provinces Bill: Procedural Advisor's Response to Negotiating Mandates & Regulation of Interception of Communication-Related Information Bill: Department of Justice briefing

Meeting report

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
14 September 2007
MANDATING PROCEDURES OF PROVINCES BILL: PROCEDURAL ADVISOR'S RESPONSE TO NEGOTIATING MANDATES & REGULATION OF INTERCEPTION OF COMMUNICATION-RELATED INFORMATION BILL: DEPARTMENT OF JUSTICE BRIEFING

Chairperson: Kgoshi L Mokoena (ANC, Limpopo)

Documents Handed Out:
Mandating Procedures of Provinces Bill: Western Cape Negotiating Mandate
Eastern Cape Negotiating Mandate
Mpumulanga Negotiating Mandate
Free State Negotiating Mandate
Northern Cape Negotiating Mandate
Limpopo Negotiating mandate
Kwazulu Natal Negotiating Mandate
Gauteng Negotiating Mandate
Regulation of Interception of Communication Related information: Department of Justice Briefing Notes
Draft Sector Policy for South African Legislatures

Audio recording of meeting

SUMMARY:
The Senior procedural advisor to the National Council of Provinces commented upon the views expressed in the negotiating mandates in relation to the Mandating Procedures of Provinces Bill. While some proposed amendments were valid, some posed challenges. It was emphasised that the primary objective of the was  to create uniformity, but this must be done without encroaching on the Constitutional powers of the legislatures. With regard the submissions, the most frequent request was for a distinction to be drawn with regard to mandates. The legislatures maintained that the Bill must differentiate between ‘negotiated mandates’ and ‘final mandates.’ Otherwise there appeared to be no substantial grievances from any of the provinces concerned. The Bill would be redrafted taking into account the comments.

The Department of Justice briefed the Committee fully on the purpose, aims and provisions of the Regulation of Interception of Communications and Provision of Communication Related Information Amendment Bill (the Bill). The Committee was disappointed that the National Council of Provinces had only been given three months to deal with the legislation and felt that it was unacceptable for the Portfolio Committee to specify a date of commencement as 1 January 2008. Concerns were expressed that the twelve-month registration period for all cellphone users may be too short and that registration points might be difficult to access for those in rural areas. Further questions addressed who may bring applications for interception, the reasons, whether there could be publication of this information, the difficulties in reporting stolen or lost SIM cards, implementation of registration for tourists, and other practical implications. .

MINUTES:
Mandating Procedures of Provinces Bill: Reponses to negotiating mandates and concerns raised
The Chairperson noted with disappointment that no negotiating mandate had been received form the North West Province.

Briefing by Adv Mamoti:
Adv B Momoti, Senior procedural advisor to the National Council of Provinces, noted that while the negotiating mandates had raised some valid points in regard to amendments, some posed challenges. He emphasised that the primary objective of the Bill was to create uniformity, but this must be done without encroaching on the Constitutional powers of the legislatures.

There were few complaints raised with respect to the drafting, and accordingly there was nothing to report in this regard. Minor recommendations pertaining to the wording were made but the majority of the submissions seemed to agree with the substance of the drafting.

Adv Momoti continued that the most frequent request was that there is be a distinction with regard to mandates. The legislatures were maintaining that the Bill must have annexures divided into ‘negotiated mandates’ and ‘final mandates.’ Adv Momoti said that during previous meetings, this point seemed to have been agreed upon but the amendments had not been forthcoming. There was still work to be done in this regard.

The Chairperson indicated to Adv Momoti that during the recess he would have the opportunity to tidy up the wording of the Bill and put it in sequence. 

Mr M Mzizi (IFP: Gauteng) maintained that he agreed with the Chairperson. He noted that Adv Momoti had not mentioned the Gauteng proposal, which was deliberated on extensively at the last meeting. He maintained that it would be wise to incorporate this in the draft, since, as far as he knew, the Committee had approved of such a proposal.

The Chairperson stated that the submission had revolved around the issue of videoconferencing, and that this was not decided upon definitively.

Mr J W Le Roux (DA: Eastern Cape) asked whether Adv Momoti had considered whether the public involvement procedures were perhaps too broad, as with the Matatiele situation.

The Chairperson stated that members should not raise such issues in this forum, as it was not the appropriate place to discuss them.

Adv Momoti stated that he had noted the concerns raised by members. The videoconferencing issue would be discussed at a later stage, along with other issues such as public involvement. He noted that the public involvement issue was particularly important as it was constitutionally mandated. Legislators must guard against ‘over-regulation,’ and he added that some procedure which was common could be put in the rules.

Regulation of Interception of Communications and Provision of Communication-related Information Amendment Bill (RICA): Department of Justice (DOJ) briefing
The Chairperson noted that this Committee was entitled to, and intended to call for submissions from interested parties on this Bill.

Mr Sarel Robbertse, Senior State Law Advisor, Department of Justice, and Mr Lawrence  Bassett, Chief Director: Legislation, Department of Justice, briefed the Committee on the RICA Bill. A detailed memorandum was tabled, setting out the reasons for the interception and monitoring, the restrictions on interception, the role of the service providers, and the implementation of the existing sections 40 and 62(6) of the principal Act. The practical difficulties experienced by the service providers in the implementation of such sections were also pointed out. The individual clauses of the Bill were highlighted, clause by clause, explaining the purpose of each clause and its salient features. It was emphasised that the Bill required the capturing of essential information, which would be used both as evidence and for investigative purposes. It was noted that, without the requirements set out in the Bill, the entire principal Act would be rendered virtually meaningless. For full details, please see attached document

MINUTES:
The Chairperson asked why there was provision in the Bill that the Bill, once passed, must come into effect from 1 January 2008.

Mr Robbertse said that that the portfolio committee had inserted this date.

The Chairperson stated that this was unacceptable, and said that the integrity of the Committee was being undermined. Three months was not a reasonable amount of time to allocate to the second house, especially when the National Assembly had had the Bill in their possession for some time. He stressed that this must be guarded against in future, as the public were receiving an incorrect message as to the competence and efficacy of the NCOP.

Mr N J Mack (ANC: Western Cape) agreed that the three month period granted to the NCOP was both hopelessly insufficient and deplorable.

Mr A T Manyosi (Eastern Cape) submitted that, in his opinion, the committee was entitled to recommend that the Act come into operation on a later date, perhaps March 2008.

The Chairperson stated that the short title of the act was fixed, along with the date therein mentioned. It was impossible to give an ultimatum to the President, and the commencement date could accordingly not be changed.

Mr Bassett mentioned that the Justice Portfolio Committee was very anxious to implement the legislation, and this may have been a reason for the shorter time period. The longer the registration period, the more time criminals had to take advantage of the current loopholes. He continued that the ‘paper trail’ at the moment was very laborious.

Mr Manyosi commented that, if the Committee was really this anxious, it seemed strange that they took so long with the Bill.
 
Mr Robbertse pointed out that extensive deliberations and consultations had been involved in the Bill, which had taken longer than expected.

Mr Le Roux thanked the delegation, and stated that it was an excellent presentation, despite all the technicalities. He stated that he had recently been made aware that the service providers had claimed that it would be impossible for them to have the registration process fully completed in the 12-month period allocated. He asked for comments in this regard. He continued that, ultimately, it was not the service providers who would pay for the registration process, but the users. He asked whether it was possible to determine the ramifications, and if so, whether they had been quantified.

The Chairperson similarly expressed his doubts whether the twelve month period was sufficient. He also reiterated that the user would end up paying for the service provider’s registration costs, and encouraged the Committee to consider this point.

Mr Robbertse stated that the 12 month period would be sufficient. During the deliberations, the Justice Portfolio Committee requested the service providers to furnish it with details of their client base, as well as to make representations. However, the service providers did not oblige in this regard, so the full extent of cell phone usage was not known to the Committee. He believed that twelve months was sufficient, and the time period would only serve to increase the costs to be borne by such service providers.

Mr Mzizi pointed out that, with reference to section 63 (1) and (2), there may be some retrospectivity in implementation. He asked for the Department’s opinion in this regard.

Mr Bassett explained that there was no retrospectivity intended. The Bill said that the Amendment Bill would come into effect in January 2008, but all amended sections would reflect back to the principal Act. Section 40 and Section 62 in the principal Act were never implemented, and must now be implemented in terms of that Act, not in terms of the amendment. These amended provisions would thus come into operation when the Bill came into operation, and thus there was no retrospectivity.

Mr Mzizi noted that RICA had come a long way, and the initial phases involved much research and energy. RICA appeared first under the Department of Safety and Security, but had since been transferred to the Department of Justice.

Mr Mzizi asked why processing of the Bill had taken such a long time.

Mr Mzizi asked how the monitoring of vendors was taking place, and whether this was catered for within the principal Act.

Mr Mzizi asked whether, if a handset is stolen and a new SIM card was inserted, the new SIM card would be able to detect or record the number of the handset. If this was the case, he enquired whether a police officer would be able to access such information. 

Mr Robbertse explained that certain information was necessary for investigating an offence. It would be possible for the law enforcement agencies to find out, for example, that person A contacted person B who was murdered. The information was used largely as evidential.

Mr Mzizi noted that a judge was authorised to sign interception applications, and he wondered if this would include an acting judge. If the application was extremely urgent, he wondered if there were any provisions which allowed anyone other than a judge to authorize.

Mr Robbertse explained that the powers of law enforcement agencies were set out in terms of section 7 and 8 of the Act, and in an emergency certain information could be provided.  However, the information may only be used to determine the location of specific individuals, and there was very limited access to details of actual communication. In terms of the Act, a designated judge would only authorise an interception if the individual was accused of a serious offence, such as terrorism or murder. An affidavit must be placed before the judge, which must expressly state the nature of the offence, the identity of the person, as well as the cellular number concerned. The law enforcement agency would then hand the affidavit to the judge, and the judge would exercise his discretion. The judge could request additional information, or he could refuse the application. Once authorised, the interception warrant was only valid for three months, but could be extended.

The previous Act was implemented and administered by the DOJ. DOJ was thus responsible for appointing a judge. However, DOJ had limited enforcement capability, which presented difficulties. In this Bill, DOJ were named as the administrators, but it was recognised that Department of Safety and Security (DSS) were integral to the successful implementation of the Act. Nothing had as yet been officially transferred to the police.

Mr Mack noted that cell phone users were divided into ‘contract users’ and ‘prepaid’. He wondered how the ‘contract plus top up’ customers would be classified. He also noted that many retailers sold SIM cards at very cheap prices, and some SIM cards were given away free. He asked how this practice would be affected.

Mr Bassett stated that there would not be a problem with the ‘top up’ category of users, as they would be registered in terms of the contract.

Mr Mack asked whether applications for interception could be brought only by law enforcement agencies, or whether other governmental bodies or private security companies would be able to bring an application for interception. He asked what the criteria for the grating of a application were, or what reasons such agencies were expected to furnish the judge upon such application.

Mr Mack noted that problems could arise when the media published the intercepted information. He noted that the media thrived on publishing ‘the negative’ and asked whether there was any restriction in the Bill on the purposes for which such acquired information may be used.

Mr Bassett noted that to intercept communication and then publish it was blatantly illegal and would not be tolerated. In terms of the Act, only the law enforcement agency could intercept, and any other interception will be unlawful.

Mr Mack enquired, in light of the fact that section 49 referred to an exemption for purposes of the 2010 World Cup, whether it is possible that other groups of tourists or delegations may be exempted.

The Chairperson asked, with regard to the exemption for the 2010 soccer world cup, how the Department was going to go about identifying and exempting soccer fans only. He continued that this was an impossible task which seemed ludicrous, and was not really capable of implementation. After queuing at immigration for extensive time periods, tourists would have to queue again in order to register their SIM-cards. This was also time consuming and may be unreasonable.

Mr Bassett explained that all tourists would have to register unless there was an exemption in place. The Bill had been drafted with a once-off event in mind, namely the Soccer World Cup. This was in all likelihood due to the magnitude of the event. Mr Bassett then re-emphasised the requirements pertaining to affidavits, as mentioned above.

Mr Mack noted that the disastrous state of the Department of Home Affairs (DHA) with regard to Identity Documents (Ids) might render the ID requirements in the Bill unrealistic. This could be particularly problematic in rural areas where access to Home Affairs services was very limited.

Mr Mack agreed that the 12- month registration period seemed very ambitious and rather unrealistic. He said that in an era when most people are moving away from land lines towards cellular technology, such ‘red tape’ was only serving to restrict the service. He continued that this was an unfortunate state of affairs. When SIM cards were lost or stolen, such loss or theft must be reported to a police station. He reminded the delegation that many South Africans lived in rural areas, where access to police stations was very difficult..

The Chairperson agreed that the requirement to report loss to a police station was patently unfair to those who lived in remote rural areas. It was unreasonable to ask a person, who has just been wronged by a criminal, to walk or travel a far distance.

Mr Robbertse stated that if SIM cards were stolen, the theft only had to be reported after a ‘reasonable’ time, not straight away. This did mitigate the harshness somewhat.

Mr Bassett said that in respect of access, vendors of SIM cards would  not be affected as such, but ‘ripple effects’ would be determined by the way that service providers regulated their environment. If a person were to buy a SIM card, it did not mean that that person would immediately have access to cellular operations. Such access would only be permitted once the SIM card had been registered by an individual. If the details of the individual were legitimate, the service providers would activate the SIM card.
 
Mr Bassett highlighted that, as they currently stood, the present sections of the Act were more detrimental to such vendors, as much paperwork was involved. Consequently, the Bill would be extremely beneficial to such vendors as the obligation was now on the buyer and the service provides to register users.

The Chair maintained that access will still be a problem, as once a user purchased a  SIM card, he had to find a registration point.

Mr Bassett stated that the service providers would look at the access problems, and would have to resolve such issues as best they could.

Mr Mack concluded by emphasising that there were positive aspects of the Bill, which were largely centered around crime prevention.

The Chairperson asked why the number of the handset could not be registered, and whether this was for technical reasons.

The Chairperson enquired whether such legislation would be unique to South Africa, and if not, asked the delegation to comment on similar legislation in other countries.

Mr Manyosi asked what facts the judge would take into account when reaching a decision. He also asked what the definition of ‘informal settlement’ was in a rural context.

Ms F Nyanda (ANC: Mpumulanga) expressed her concerns as to the ‘address’ requirement in rural areas. She stated that some areas did not have a school, church or store nearby which has an address. She stated that registration may be difficult in such instances.

Mr Robbertse clarified that the original Act placed many burdens on people living in informal settlements, and emphasised that this Bill was attempting to do away with these. Initially, people were required to make a photocopy of the other person’s identity document and keep such a copy. This was very onerous, and storage of the documents also proved difficult. All such obligations had now been transferred to the service providers. An ‘address’ in terms of the Act was not limited to a church, school or store. It could be any place where there is a recognized and accessible address.

Mr Manyosi clarified that his question pertained to the actual definition of ‘informal settlements’ in rural areas.

Mr Bassett explained that it was not necessary to draw a distinction between rural and urban settlements when using an address. Any person may use the address of a nearby church or school if it was necessary.

Mr Bassett explained some important acronyms as follows:
-MSISDN number: This was the mobile cellular phone number which is dial-able, and had ten digits.
-IMEN Number: This was a number unique to every global system, and allowed for the identification of a stolen phone. It could be used to trace what has happened to a phone after a crime had occurred. This was the number usually used by service providers to block phones on a certain network, but the number was the same across all three networks.
-MC Number: This was the number allocated to the SIM card, and was probably the most important.

He clarified that at the moment, a user could only be identified if he was a contract subscriber, and all such subscribers were already in full compliance with the act.

Mr Bassett clarified that registering all the numbers must be done, and was of great assistance for crime investigation and prevention.

In answer to the Chairperson, Mr Robbertse stated that Switzerland, Taiwan, Tanzania, Singapore and Europe all had comparable legislation, with only the extent of data retention differing. In terms of roaming, South Africa appeared to be the only country with such a provision.

Mr Bassett stated that some of the provisions were onerous. However, the ultimate goal of crime prevention must be kept in mind.

The Chairperson noted that, in terms of the Bill, ‘family members’ could freely swop the SIM cards without registering such changes. He stated that the concept of ‘family’ differed greatly from culture to culture and would need to be discussed.

Mr Robbertse said that the definition in the Bill did cater for different cultures and religions, and was sufficiently wide in this regard.

The Chairperson stated that this topic would need further discussion.

The meeting was adjourned.