Hansard: NA: (Ms L D Mazibuko): The relevance and necessity of the National Key Points Act (No. 102 of 1980) in a democratic South Africa (85)

House: National Assembly

Date of Meeting: 08 Nov 2013

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Minutes

"National Assembly Chamber Main",Unrevised Hansard,18 Nov 2013,"Take 483 [National Assembly Chamber Main].doc"

UNREVISED HANSARD

NATIONAL ASSEMBLY

Friday, 8 November 2013 Take: 483

FRIDAY, 8 NOVEMBER 2013

PROCEEDINGS OF THE NATIONAL ASSEMBLY

The House met at 10:02.

The Speaker took the Chair and requested members to observe a moment of silence for prayers or meditation.

THE LEADER OF THE OPPOSITION

UNREVISED HANSARD

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Start of Day

THE RELEVANCE AND NECCESITY OF THE NATIONAL KEY POINTS ACT (ACT NO 102 OF 1980) IN A DEMOCRATIC SOUTH AFRICA

(Subject for Discussion)

The LEADER OF THE OPPOSITION: Hon Speaker, I would like to thank you for ensuring that time was allocated to this debate, as it is an important motion and a matter of national importance. Your increased commitment to bringing important issues to the floor of this Parliament does not go unnoticed.

Hon members, it is fitting that the constitutionality of this legislation is being debated in the National Assembly today because it is we Members of Parliament who must take responsibility for allowing this Draconian apartheid-era law to remain on our Statute Book. The National Key Points Act was passed in 1980 during a time in South Africa when the paranoia of the apartheid government was at its peak.

When the Act was passed, it was done in response to what the government of the day viewed as sabotage or terrorism. It was used to wage war against South African citizens. It was designed to reinforce the safety of the apartheid system and to give the apartheid Minister of Defence broad authority to declare any place in South Africa a national key point. There can be no doubt that it is unconstitutional and there can be no doubt that the Act must be repealed in its entirety.

The question is, why did our democratic elected government make such extensive use of this antiquated law to justify the spending of over R200 million on upgrading President Jacob Zuma's private home in Nkandla?

How could the hon members of the very organisation this law was written to suppress, become the suppressors themselves? The hon Minister of Public Works should perhaps start by explaining why he said:

Let us be upfront that the private Nkandla residence of President Zuma ... has been declared a national key point... Therefore, any information relating to security measures undertaken at a national key point is protected from disclosure in terms of this Act.

We hope the hon Minister of Police will follow because he, too, in response to a DA parliamentary question, used this legislation to fail to respond on the basis of so-called security considerations.

Perhaps it is because, over time, this government has come to favour secrecy over transparency. Perhaps it is because this government would rather hide the truth than hold its own to account. But there is a solution. We in the DA are no longer willing to sit back while this law remains festering on our Statute Book.

That's why I have submitted to you, hon Speaker, a Private Member's Bill – The Protection of Critical Infrastructure Bill – which will once and for all repeal the National Key Points Act and replace it with a constitutionally aligned alternative which balances security with transparency and accountability.

This Bill will only allow those facilities which are really compromised without security from the state or vulnerable to threat or attack, to be declared as critical infrastructure. It is a Bill that would not be left open to government abuse so that Ministers declare key points every time they wish to hide how much money they spent on security upgrades.

Our collective failure year after year to abolish this law has led us to where we are today. This is our chance as Members of Parliament to set it right. We cannot wait another moment and let a pernicious apartheid law from the past be left on the books and open to abuse by the ANC. We cannot afford to have our government spend a cent more on cattle culverts, heli-pads and astro-turfs for some when we should be spending money on creating jobs and improving education and delivering services to the millions of our citizens who need them. I thank you very much. [Applause.]

The MINISTER OF POLICE

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The LEADER OF THE OPPOSITION

The MINISTER OF POLICE: Hon Speaker, the people's tribune has been convened this morning to discuss a matter of national importance – a matter that has, in recent times, assumed strategic significance in almost all countries across the globe. This is the issue of protecting our strategic assets. Guarding and protecting our strategic assets today means securing and investing in the future for generations to come. It is our responsibility to do so. We will do so. The ANC will continue to do that. [Applause.]

It is important that we make the point that, on 30 May this year, we announced in Parliament that we are reviewing this Act. We have done that. We put a committee in place. The committee has come back to report that the work is ongoing. At the end of November, we are going to come up with the reviewed policy on this matter.

What did the DA do? Opportunistically, they jumped to the fore. They say that they are preparing a Private Member's Bill. Good try, but the process is continuing. We will ensure that a process continues which will, at the end of the day, be moulded by the Constitution of the Republic of South Africa. We will do our job.

National security is subjected both to the authority of Parliament and the national executive and must reflect the resolve of South Africans, as individuals and as a collective, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life. [Applause.] [Interjections.]

These shrill voices outside there...

An HON MEMBER: No, they're right here!

The MINISTER OF POLICE: ... particularly from the DA, are giving people wrong views, that this Act has no place. The part of the Act that is not in line with the Constitution is going to be repealed, but the National Key Points as an Act is here to stay. Don't fool people. [Applause.]

Protecting and ensuring the resilience of critical infrastructure and key resources of our country is essential to the nation's security, public safety, economic vitality and way of life. Risk in the 21st century results from a complex mix of man-made and naturally occurring threats and hazards, including terrorist attacks, accidents, natural disasters and other emergencies.

Within this context, our critical infrastructure and key resources may be directly exposed to an event or indirectly exposed as a result of dependency or interdependencies amongst them. It is imperative that national priorities include preventing catastrophic loss of life, protecting our national assets and thwarting any attempt to disrupt the functioning of our national economy.

Achieving this goal requires a strategy that appropriately balances resilience - our strength in adverse times - with focused, risk-informed prevention, protection and preparedness activities so that we can manage and reduce the more serious risks that we face. These concepts represent the pillars of our Critical Infrastructure Protection Plan.

Over the last two decades, numerous states have highlighted the role of critical infrastructure protection in their respective national security strategies. This continues to be a significant issue for many countries around the world, with attention currently increasingly centred on information infrastructure protection related primarily to cyber security, energy infrastructure protection, and challenges related to public-private partnership. [Interjections.]

This exposes the DA's lie that the issue about protecting critical infrastructure is an apartheid matter. [Interjections.] It is a matter for all states everywhere in the world. We are going to protect our infrastructure. Direct terrorist attacks and natural, man-made or technological hazards could produce catastrophic losses in terms of human casualties, property destruction and economic effects as well as cause profound damage to public morale and confidence.

The protection of critical infrastructure is deemed necessary not only from the possible commonly identified physical threats such as terrorism, but also from other potential threats such as organised and cyber crime and national disasters.

South Africa regulates what other countries refer to as critical infrastructure through the National Key Points Act. Since the implementation of the Act, the SA Police Service has established a committee that is responsible for the administering of this Act.

All institutions that we have classified as such would broadly fall within the international definition of critical infrastructure. South Africa, like many countries across the globe, relies on private-public partnership for the implementation of the Act. This is so because, in many instances, critical infrastructure falls within private hands though they are of international importance.

The current National Key Points Act is under review, as we said, and we are going to ensure that it is brought in line with the Constitution. But, do not go and tell lies to people that it will disappear... that some Zorro will come with some unnatural powers and make it disappear. It won't disappear. Thank you very much. [Applause.]

Mr J SELFE

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The MINISTER OF POLICE

Mr J SELFE: Speaker, Mr P W Botha became the Prime Minister of South Africa in 1978. He had a bizarre geopolitical analysis that went something like this: the West and the communist bloc were at war but, because of the threat of mutually assured destruction through the use of nuclear weapons, each side used surrogate forces in distant theatres of war to achieve their objectives.

South Africa, so Mr P W Botha thought, was particularly strategically important to the Soviets both because of its mineral wealth and its position astride the Cape sea route. As a result of this analysis, Mr Botha conceived the notion that South Africa was the subject of what he called a "total onslaught" and that a "total strategy" was required to counteract that threat. This involved co-ordinating the resources of the state and co-opting the private sector into what became known as the national security management system.

In pursuit of this, the Botha regime passed a raft of laws that concentrated power in the State Security Council, and which shut down the space for debate, dissent and the dissemination of information.

The National Key Points Act, Act 102 of 1980, was one of those laws. By supreme irony, another one was the Protection of Information Act of 1982. The National Key Points Act gave the Minister of Defence, who happened to be Mr P W Botha, wide powers to declare private and public installations as national key points, NKPs, in order to force owners to comply with security measures, and to classify information about NKPs, and to criminalise unauthorised access to NKPs or the dissemination of information about them.

In introducing the measure to the apartheid Parliament, Mr Kobie Coetzee, who was the Deputy Minister of Defence, sounded chillingly like the Minister of Police today, when he said that, "the legislation had become necessary in the light of events such as those in Silverton, Booysens, Sasol, Secunda and Natref." These, I need to emphasise, were successful attacks carried out by MK operatives.

The essence of the National Key Points Act was, and remains, that it allows the Minister, in his or her sole discretion, to declare a site or an installation as a National Key Point, about which the public is not allowed to know anything, even whether the place concerned is in fact an NKP. It creates a range of penalties for a variety of offences, and, in keeping with apartheid-era legislation inspired by P W Botha's ideas of the total onslaught, it does not permit parliamentary or other oversight.

This legislation was conceived in the sin of the apartheid and born in the darkest days of the total onslaught. It has no place in the statute books of a progressive constitutional democracy. [Applause.] And yet it stubbornly remains, unrepealed and used, amongst other things, to justify the veil of secrecy surrounding President Zuma's private residence at Nkandla.

The National Key Points Act must be repealed. The DA accepts that there are legitimate security concerns about critical infrastructure. Such infrastructure must be protected. However, this needs legislation that balances the need for security with proper oversight and scrutiny. The DA has drafted such legislation, which the hon Mazibuko referred to, and we commend it to this House.

The last thing that we would want in a government of South Africa which is 19-and-a-half years into democracy, would be the accusation which, in French, says: plus ça change, plus c'est la même chose [the more things change, the more they stay the same]. [Applause.]

Mr M G P LEKOTA

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Mr J SELFE

Mr M G P LEKOTA: Speaker, back in 1993, Nelson Mandela told us that the ANC may well do to us what the apartheid regime did to us. That is what Nelson Mandela said. Hardly anyone of us could believe it but, today, as I stand here, I can hardly believe what is being done in the name of the ANC. [Interjections.]

Here is an Act, put in place by the National Party of old, intended to protect their state institutions because, at the time, the aim of the guerrillas was to attack state institutions and not citizens. Therefore, in order to do that, they wanted to protect state institutions. What we see now is that that legislation, intended at the time by the National Party to protect state institutions, is now being used to advance corruption.

Now, public funds are being used to put in and give an inheritance to those who happen to have occupied an office for a while. Why is it that President Nelson Mandela's private home did not become a national key point? Why is it that the homes of President Mbeki did not become national key points? Why is it that the homes of all the others did not? [Interjections.] And that, for this one, this particular one, huge amounts of public funds are put in that?

The Waterkloof Air Force Base, the prime air force base of our nation, is not a national key point, but Nkandla, a private home is a national key point?

Nothing can be more ridiculous than the fact that we are faced with an administration that is determined to enrich itself in the limited period of time it is in power. Again, we must say here that all of us who want justice feel that there is a need to scrap this legislation; there is a need to introduce new legislation. Let us say that it is a commendable initiative that one of the opposition parties, the DA, has taken the initiative to begin to put this in front of the people. [Applause.]

Men and women committed to corruption will condemn those who stand for what is right, trying to intimidate those who stand for the right things by referring to questions of colour and things like that. You have come to a point in this country, faced with a nation that fought apartheid, disregarding race. Today, we will fight corruption, disregarding race.

Men and women on this side of the House, who are opposed to your corruption, must never be shy to say that you are perpertrating the worst things on the people of South Africa. [Applause.] The poor of this country are left without food, without jobs and without everything whilst you batten on this. It is the same as we were saying yesterday - that you steal money, do all sorts of corruption and remove the credit card and keep yourselves in place. This kind of thing is not going to blind anybody.

IsiZulu:

Asikhumbuzeni abantu baseNingizimu Afrika, masibakhumbuze ukuthi wathi uMandela, "uma nisibona senza lento nisikhiphe embusweni ... [Ubuwelewele.] [Uhleko.] [Ihlombe.]

English:

Adv T M MASUTHA: Speaker, Rule 63 of the Rule Book prohibits the use of offensive language and the hon Lekota is making unfounded allegations about people stealing money. That is offensive. Could you please rule on that.

Mr M G P LEKOTA: If I may...

The SPEAKER: Hon member, take your seat. I will study the Hansard and come back with a ruling on that point. Sir, your time has expired. [Interjections.] Order! Hon members, order! [Applause.]

Before I invite the next speaker who has already invited himself ... [Laughter.]

The MINISTER OF POLICE: Speaker, ...

The SPEAKER: Yes, sir.

The MINISTER OF POLICE: On a point of order.

The SPEAKER: What is your point of order?

The MINISTER OF POLICE: The hon member, Mr Lekota, has misled the House, in his declaration regarding the former presidents' residences. All of their homes were NKPs. [Interjections.]

The SPEAKER: Thank you very much, hon member. [Interjections.] Order, order! I will come back with a ruling on that one as well.

Before I invite the next speaker, may I remind our visitors in the gallery that you are welcome in Parliament. However, you may not participate in the discussions through clapping. People here on the ground will clap on your behalf. I now invite the hon Ndlovu to the podium.

Mr V B NDLOVU

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The SPEAKER

Mr V B NDLOVU: Speaker, firstly I just want to say that, in debating this legislation, we must look at why this legislation is there and how it is going to assist us. The IFP therefore wants to put it on record that development anywhere else should involve and be used by all everybody, when talking about development areas.

Public funds that are being used to develop the areas should benefit everyone, not just my family members or anybody else. The old Act has already been looked at by the Minister of Police and this should be supported, because the old Act needs to be overhauled or amended. Even the Members of this House do not know what are or where the national key points are anymore.

We have to support the Ministry in bringing this Act to Parliament. [Applause.] We must ensure that we deal with the Act properly so that everybody is properly informed as to what and where the national key points are.

National Key Points cannot be declared as such without following proper procedures. These are not areas that someone simply decides is a National Key Point.

IsiZulu:

Awukwazi ukuvele ulale uvuke bese uthi ...

English:

... this is a national key point. It can't happen like that. The process to identify the national key point areas must be followed and adhered to without fail. [Interjections.] People living in areas surrounding a national key point should be informed about the key point.

IsiZulu:

Ngakho-ke akufanele ukuba kube khona izindawo ezingazeki kahle ukuthi ziyini ngempela. Izitolo lapho zithenga khona igrosa, imitholampilo esiya kuyo ngekwezempilo, kanye nezibhedlela ngeke zisetshenziswe njengama-national key points ngoba kungena noma ngubani. Kanti ama-national key points yizona zindawo ezibucayi okudingeka ukuba zibhekelwe ngaso sonke isikhathi.

Ngakho-ke mhlonishwa, kuyosisiza ukuthi ukuze sikwazi ukulekelela ukuthi bonke laba abahawulayo nababanga umsindo bafundiseke, ukuthi lo mthetho ulethwe phambi kwePhalamende ukuze ulungise, sikwazu ukuqeda konke lokhu kukhuluma. Ngemuva kwalokho sikwazi ukuthi siya njani phambili. Ngiyabonga. [Ihlombe.]

Mr P J GROENEWALD

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Mr V B NDLOVU

Mr P J GROENEWALD: Hon Speaker, hon Minister, I am surprised that you are speaking on this issue this morning, because according to the Act, the Minister of Defence determines which are going to be National Key Points or not. That is actually an illustration, and you cannot deny it, hon Minister, that there was massive misuse of this Act to protect Nkandla. [Interjections.]

Afrikaans:

Wat is die belangrike strategiese waarde van Nkandla vir die land? Watter bedreiging is daar vir Suid-Afrika as daar 'n aanval is op Nkandla? Wie gaan in elk geval 'n aanval wil loods op Nkandla? [Tussenwerpsels.] Dit is die werklikheid. Die VF Plus stem saam: Daar moet 'n wet wees op nasionale sleutelpunte. Terrorisme is lewendig in die wêreld en, ja, daar moet so 'n wet wees, maar agb Minister, dit moet duidelik wees.

As die wysigingswetsontwerp ter tafel gelê word in die Parlement, dan moet daar duidelike kriteria wees van wanneer 'n bepaalde plek of instelling 'n nasionale sleutelpunt kan wees. Soos wat dit tans is, is die definisie, soos ons altyd in Afrikaans sê, so wyd soos die Here se genade. Jy kan met drie ossewaens binne daardie definisie gaan draai. Dit is wanneer daar misbruik gemaak word deur 'n ANC regering wat korrupsie wil toesmeer. Dit kan Suid-Afrika glad nie bekostig nie. Natuurlik is daar mos militêre instellings, maar jy het ook nie noodwendig 'n Wet op Nasionale Sleutelpunte nodig om dit te beskerm nie. Die Wet op Verdediging gee dan ook daardie magtiging dat militêre instellings in elk geval 'n beperkte gebied is. Dit is presies wat byvoorbeeld die Waterkloof Lugmagbasis betref, want toe was daar ook verwarring ...

English:

... because, hon Minister, you said just now that all the former Presidents' homes were National Key Points. How do we know? I have to take your word for it. [Interjections.] I will take your word. I accept that, hon Minister, but I do not have proof of it. I do not know, because tomorrow there may be a new Minister of Police who I do not trust ... [Interjections.] ... and then I must just accept that it is a National Key Point because he says so. [Interjections.]

It is unacceptable that if a Minister says it is a National Key Point, then it is a National Key Point. We have to change the Act, and yes, we will support it if it gives a very clear definition and criteria of when an installation is a National Key Point. I thank you. [Applause.]

The SPEAKER: Before I invite the next speaker, I wish to remind hon members that, as I indicated earlier, I will consider the Hansard on the remarks by the hon Lekota, and rule at a later stage.

Regarding the point of order raised by the hon the Minister of Police, the Speaker may not rule on disputes over facts. It is the responsibility of the other members participating in the debate to correct what they regard as inaccuracies in the information given to the House.

Mr W THRING

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The SPEAKER

Mr W THRING: Hon Speaker, those of us who are old enough to have felt the effects of apartheid, who fought against its evil and racist laws and vowed that never again would we allow such oppressive, secret and damaging laws to be applied in a free and democratic South Africa, have reason, like the ACDP, to question the rationale behind retaining this archaic piece of legislation, which the National Key Points Act is.

There are many problems with this Act, which Prof Pierre de Vos eloquently articulates. Firstly, there are the provisions of law of general application. Because no list of key points is published, it is not possible for the public to know where or what they are, and then to behave accordingly. A person must be able to know the law before he or she is able to conform his or her action to the conduct of that particular law.

Secondly, sections 2 and 2A, together with section 10 of the Act, as well as the section of the Act which refers to the draconian Official Secrets Act of 1956, when read together, criminalise some forms of expression and constitute a clear infringement of the right of free expression. These include freedom of the press and other media and the freedom to receive or impart information or ideas.

Thirdly, the Act also bestows vast discretionary powers on the Minister of Defence, not only to declare key points, but also to decide how security should be handled there. In addition, the Act prescribes that the owner should be liable for security upgrades. The Act therefore bestows law-making powers on a member of the executive - powers which the Constitution requires the legislature to exercise. In addition, the provision whereby the owner of the key point is required to see to its security at his or her own expense would certainly constitute unfair discrimination.

It is no wonder that the Southern African Catholic Bishops' Conference states, and the ACDP agrees, that anyone with a feeling for the core values of our Constitution will immediately realise that some of the Act's provisions belong in the previous era and have no place in a constitutional democracy. [Applause.]

The ACDP welcomes moves by the ruling party and members of the opposition to change or amend those sections of the Act that are certainly undemocratic and unconstitutional. One more day with this Act is one day too many. I thank you. [Applause.]

Mr I S MFUNDISI

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Mr W THRING

Mr I S MFUNDISI: Hon Speaker and hon members, the National Key Points Act is a relic of the old apartheid laws which the democratic order inherited holus-bolus, while other laws that preceded the Interim Constitution of 1993 were tweaked and tinkered with, if not repealed altogether. It is not surprising that Murray Hunter terms it "a dinosaur that has survived the extinction and is wandering around in contemporary society".

The unwieldy powers given to the Minister who administers the Act are the source of concern. The problems lie in the secrecy, lack of accountability and lack of clarity about what constitutes an offence under this Act. The Minister under whose authority the Act falls has total and unfettered discretion in designating places as key points, which is contrary to principles of accountability and transparency.

Section 3 of the Act pertinently states that... the owner of the National Key Point concerned shall, after consultation with the Minister, at his own expense, take steps to the satisfaction of the Minister in respect of the said point.

If this were followed to the letter, we would not be expected to fund the upgrades at Nkandla.

The secrecy surrounding the application of the Act is surprising, when even Members of Parliament do not know how many National Key Points there are, let alone which they are. This defies a supposedly democratic, transparent government of our age.

At the time the idea of the Act was hatched, institutions of government, such as police stations, military bases and all instances manned by security forces were not identified as key points. This was simply because they themselves would provide the necessary security. However, we notice, these days, that police stations are also being guarded by private security companies. If the Waterkloof Air Force Base, which has more stringent security measures than an average National Key Point, is not one – as President Zuma made clear to his Cabinet and Parliament – we shall keep guessing which institution or installation is a key point.

We, in the UCDP, believe that the days of secrecy are over. South African citizens deserve to be treated with trust and respect and be told which institutions are National Key Points.

We notice that government always applies a better safe than sorry approach in some instances. Unfortunately, this default position more often than not ends up in the rights of the public being compromised.

The UCDP stands to speak out and state that the Act falls foul of legality, an important aspect of the rule of law, as there is no list of key points. This is something that makes it impossible for the public to know where they should go. The concomitant vagueness and uncertainty render legal compliance impossible. Prof Pierre de Vos summed it up well when he said:

We are unable to comply with the law because we are not allowed to know what the law has prohibited.

Finally, let us hope that as South Africans speak out, they will be heard, and goodness will follow. Thank you. [Applause.]

The MINISTER OF PUBLIC WORKS

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Mr I S MFUNDISI

The MINISTER OF PUBLIC WORKS: Speaker and hon members, in 1994, 1999, 2004, and again in 2009, South Africans gave the ANC the mandate to govern this country, including the primary obligation to defend our country's sovereignty by defending its borders and guarding citizens from external and internal threats. This basic logic continues to elude hon Mazibuko and her DA handlers. Perhaps you can forgive her because of inexperience. [Interjections.]

The worst embarrassment today is a former Minister of Defence, who occupied a top position to secure the country, who does not know that houses or places of former presidents are national key points. It speaks volumes and it speaks for itself why his party is in disarray and in chaos. [Interjections.]

As we approach the 20th anniversary of our democracy, taking stock and reflecting on things that need be reviewed and those that need consolidation, it is naturally expected that this anniversary coincides with electioneering, the period which sometimes has unintended consequences of possibly diluting possibilities of honest, non-partisan, robust and deeply introspective analysis of these issues with the aim of promoting our national interests and nation-building process.

Unfortunately, the temptation to seek opportunities to expose perceived government or ruling party weaknesses sometimes knows no boundaries and is not even tempered by what would be the national security interest which, by any international objective benchmarking, would stand the test.

The question posed by hon Mazibuko, at face value, is simple enough and is worth serious consideration. Is the National Key Points Act relevant and necessary in a democratic South Africa? Part of the onerous legacy of apartheid is the existence of the huge body of legislation, all of which over time needs to be reviewed and brought into compliance with the new democratic Constitution. There is no doubt that some of these residual policies, legislation and practises may not fit comfortably with the new ethos.

While we search for proper alternatives, it will also be irresponsible to allow for a policy vacuum, especially in areas which involve the national security and key strategic institutions. That includes the National Key Points Act. At the broader level, a review of policy that inhibits a faster transformation that will change the socio-economic historical imbalances must also be on the menu so that we do not just confine ourselves to security or information laws if we are to uproot the apartheid and colonial legacy.

We must do that, hon Lindiwe Mazibuko, even when we debate the Expropriation Act which some of you are against. I would hope that there would be broad agreement on that approach and the need to review the apartheid legislation, even from the most conservative members of the opposition benches.

Indeed we have already heard from the Minister of Police that this process is already well under way. What else do you want? You are also aware of that. I would like the hon members to note the approach adopted by government in this case. Firstly, we conduct research, including establishing international trends and best practises, which clearly indicate that critical and strategic infrastructure is identified by governments for security reasons. Research will be followed by the development of the policy document and then a review of the legislation will include the public consultation process.

Such security arrangements are a dominant feature of most states, including the established western liberal democracies which are often cited by the opposition as the benchmarks of a range of issues, but selectively and quite conveniently choose not to mention the security arrangements of these states. In those states security arrangements are not for public consumption, hon Lekota. You know that very well. [Applause.]

Contrary to the approach of DA - no research, no consultation, steamroll the process and move straight to release the Bill, presumably thumb-sucked - the very same members of the opposition will exclaim in jubilation if such a rushed and poorly conceived document is turned down as not being in conformity with constitutional prescripts.

We just cannot have it both ways. As it is said, one can't have one's cake and eat it too. There are processes which must be followed. The serious point here is that the DA shows complete disdain for parliamentary procedures. [Interjections.] This attempt to undermine the democratic process is both reprehensible and irresponsible. Here we see blatant partisan...

Mrs S V KALYAN: Speaker, on a point of order: the Minister is misleading the House by saying that the DA disregards processes and the Rules of this House.

Adv T M MASUTHA: Speaker, on a point of order: the member can only rise on a point of order if she says that the hon Minister is breaking any Rule in the Rule Book.

The SPEAKER: Please take your seat, hon members. I will study the Hansard. Take your seats. Order, hon members, order! I will study the Hansard and come back with the ruling. Proceed, hon Minister.

The MINISTER OF PUBLIC WORKS: Kushushu Somlomo [It is hot, Speaker.] [Laughter.]

Here we see a blatant partisan reflex reaction informed by narrow electioneering over a careful consideration of matters of national security. Of course such matters of national security should not be abused by neither government officials nor political parties. Security concerns around the strategic institutions and infrastructure must be located within the current global context where terrorist activities are on the rise and South Africa, playing an ever-increasing role in the African continent and the world, becomes more exposed, including the head of state.

Incidentally, I am struck by the contrast in approach and the reluctance of the DA to embrace our attempts to review the expropriation legislation from the apartheid era and to bring it in line with the Constitution. We have seen similar resistance from the DA on the issue of the military veterans where they stood squarely for the old apartheid security and militia establishment.

Then you wonder where the heart of the DA is and whose interests it is prepared to defend? Some reference to apartheid legislation that needs to be reviewed is often very selective and desperately lacks consistency and honesty. The House does not need me to point that out. Where there is perceived threat to white privilege and vested interest, the DA will always show its true colours, sometimes putting its young, gullible and often black unsuspecting members to speak on issues whose nuances and deeper implications may not be readily obvious. [Interjections.]

So, what is hon Mazibuko asking for? Is she suggesting that there is no need for security legislation governing critical infrastructure in South Africa? Is she suggesting that a democratic state does not need to keep some things confidential, the kind of categories listed in the details which we are talking about? Is she suggesting that the plans of the critical infrastructure be posted to the Wikileaks website? Is she not aware that every democratic state in the world has enacted legislation to protect the security of its citizens, including the protection of the strategic infrastructure and the heads of states.

Of course, hon Mazibuko is aware of these facts hence the publicity stunt this week and the release of a Private Member's Bill for the sole purpose of attracting media exposure because that is where she campaigns. This action was both premature and presumptuous, with no attempt to consult the relevant stakeholders but ultimately, largely irrelevant.The DA will not succeed in attempts to bypass the democratic parliamentary processes. [Interjections.]

So, what are we left with? In fact, hon Mazibuko agrees with us about the need to review apartheid legislation. She agrees that we need some kind of security legislation. So, we are debating about the content of such legislation, basically dealing with appropriate criteria and powers.

Indeed the Minister of Police has already announced a review of the existing legislation, a process that will be managed through this House in the usual way, and participate in that process. We are bound to ask, why the media hype? Why now? Seemingly, the DA was not previously concerned with the particular piece of legislation. Could it be that this is one more manifestation of the DA's irrational obsession with demonising the President of the Republic, their preoccupation with the Nkandla security upgrades? [Interjections.]

Perhaps there is something we don't know. You have requested the Public Protector to conduct an investigation. Even before you get the report you already know the findings and the recommendations. It means there is something going on here. You are telling us something about this investigation. [Applause.] Could it be that, as the various processes looking at the Nkandla security upgrade come to a head, you already know a lot in terms of those processes and even other processes? Is this the last desperate bid for attention by the DA before the completion of the various investigation processes before they have to actually engage with the facts? [Applause.]

I have repeated my own position on this matter on various occasions. In October last year, I ordered an investigation by the Department of Public Works into the implementation of the security upgrade. My decision to investigate was based on the following principles that I shared with Parliament. I said I will not play politics with the security of the President and I prefer to err on the side of caution, hence the investigation and the report which was provided to a committee of this House. We have also co-operated with the Public Protector. Perhaps you know the results, but it speaks volumes that you know the results, as you are claiming. [Interjections.]

It is therefore completely incorrect to allege, as the hon Mazibuko does, that the security legislation is being used to cover-up corruption. Where corruption exists or is suspected we should tackle it without fear or favour, but we must never trample on national security and national interest in the process. Never use a four-pound hammer to kill a fly on a window. [Interjections.]

In the paranoid world of the DA, South Africa is a secretive police state. Nothing could be further from the truth. The DA needs to step back and look at the bigger picture. [Interjections.] [Time expired.] [Applause.]

Mr K J DIKOBO

UNREVISED HANSARD

NATIONAL ASSEMBLY

Friday, 8 November 2013 Take: 487

The MINISTER OF PUBLIC WORKS

Mr K J DIKOBO: Hon Speaker and hon members, it is difficult for me to conceive of a situation in a country where there are no places that are protected or a situation where everybody can go anywhere.

Azapo is in full support of transparency but we do not believe that transparency should be the same as nakedness. All countries, including the so-called old democracies, have areas that are protected, and where access is controlled and restricted.

The subject for discussion has obviously been triggered by the shame that was brought onto the country by Nkandlagate. The need to protect key infrastructure must not be extended to obstructing the role of Parliament and making it difficult for Parliament to exercise its oversight role. While we need an Act that protects certain areas, Azapo does not support a situation as happened with Nkandla, where Parliament does not have information on how taxpayers' money was used.

The nation does not want to know the house plans of the private residence of number one. The people want to be sure that money was used in line with the Public Finance Management Act, PFMA. As processes to review this piece of legislation are initiated, this House must ensure that it becomes impossible to use the law to hide corruption and the plundering of public funds. We are angry at what happened at Nkandla. South Africans are unhappy with the secrecy surrounding the expenditure on Nkandla. However, that has very little to do with the need or otherwise for an Act that protects critical infrastructure.

If the question is, do we need an Act, then yes we do. Do we need this one in its current form? Definitely not. At least there is agreement that this Act must be reviewed. If we fight or if we argue, the debate should be on the form and content of that review, but, as a country, like all other countries, we need areas that are protected by law. I thank you. [Applause.]

Ms D KOHLER-BARNARD

UNREVISED HANSARD

NATIONAL ASSEMBLY

Friday, 8 November 2013 Take: 487

Mr K J DIKOBO

Ms D KOHLER-BARNARD: Mr Speaker, the DA Private Member's Bill will decrease the power of the Minister of Police, and none too soon. The powers under the apartheid-era National Key Points Act are as breathtakingly broad and open to abuse as the world came to expect of this country prior to 1994. It is crystal clear that this legislation is unconstitutional and has no place in a democratic South Africa. That this apartheid-era legislation is still in existence 20 years into democracy is a national shame. There are a myriad of problems with it.

It allows the Minister of Police sole discretion over what is considered a National Key Point, without any checks or balances at all. We know how it was used in the apartheid days to prop up that illegitimate regime, but sadly, we equally know how it is being used and abused today.

That the Act is still being used is appalling. That it is being used to cover the abuse of the state coffer is even worse. It's because the very definition of a National Key Point is so vague that this current regime is able to use it as a free pass into the vaults themselves.

The apartheid regime didn't want the list of National Key Points publicly available so that they could hide behind the Act, while at the same time using it to arrest any protestor who unintentionally came near one and charge them with treason. Of course, it's extremely handy today that we have no clear published list of the National Key Points. This means no parliamentary oversight, which in turn provides yet another opportunity to loot a slush fund, as we've seen happen with the SA Police Service, SAPS, Crime Intelligence budget.

Another bizarre twist in the National Key Points Act is that the Minister can, without anyone's permission, declare a property or entity to be a National Key Point, leaving the owners with the unenviable task of paying for security upgrades at whatever cost the Minister deems necessary. On the flip side of course, he also has the absolute right to delve into taxpayers' pockets and make them pay for upgrades and so-called security needs as he wishes. Certainly no power of this kind that negatively affects the rights of so many should be concentrated in the hands of one Minister. It speaks to the paranoia of the past.

This paranoia continues in the Ministry of Police today. I say this because other Ministers in this government, including State Security, Home Affairs, Health, and Science and Technology have had no qualms about releasing a list to us, through parliamentary questions, of all the National Key Points falling under their control. Yet Minister Mthethwa refuses to supply us with the current list of National Key Points.

The 2013-14 SAPS budget indicates that there will be 197 National Key Points by 2015-16, an increase of 15 from today. The National Key Points fall under the Police budget line item Government Security Regulator which will receive R91,5 million this year.

So, I stand here today with the situation that the so-called National Key Points have not been scrutinised by the portfolio committee, despite the budget being made available for their protection.

What we do know is that the money is being used, personnel are being paid but we cannot hold government accountable for the use of this money unless we are given the full details. This includes the exorbitant expenditure of R206 million on President Zuma's private residence in Nkandla, which includes a number of nonsecurity-related expenses. Why a person's private residence has been declared a National Key Point has never been explained, nor indeed has the exorbitant expenditure on that private residence.

It is vital that this list is provided to the Portfolio Committee on Police so that the Members of Parliament may conduct their mandated oversight role and hold the government accountable. That is what we as Members of Parliament are paid to do. The fact is that the existing system has proven to be prone to abuse and this abuse continues as there is no parliamentary oversight.

With our new Bill, parliamentary oversight is a paramount objective. This Bill will be implemented by the Department of Police and deliberated upon by Parliament's Portfolio Committee on Police which is an open committee. Only under extenuating circumstances can the committee deliberate on matters pertaining to critical infrastructure behind closed doors, and the criteria for those circumstances are clearly set out in the Bill.

Indeed, the DA only accedes to attending an officially closed session of the committee when we are to be briefed on certain sections of crime intelligence that must of necessity remain behind closed doors. Every citizen knows, indeed it is common knowledge around the globe, that President Zuma and his Cabinet Ministers are using an archaic and unconstitutional piece of legislation to attempt to justify the expenditure and to hide its true extent.

This Bill is aimed at ensuring that this will never, ever, happen again. For the Minister to suggest today that the DA would ever propose a Bill that might in any way allow a threat to national security is both predictable and ridiculous. This Bill would protect true vulnerable entities, not bling up the private homes of a President or the Minister of Police himself at taxpayers' expense.

The ANC has failed to create an Act in line with our enlightened Constitution over the past 20 years, intentionally so. So, we have done it for them. Premature my foot! [Applause.]

Ms A VAN WYK

UNREVISED HANSARD

NATIONAL ASSEMBLY

Friday, 8 November 2013 Take: 488

"National Assembly Chamber Main",Unrevised Hansard,11 Nov 2013,"Take 488 [National Assembly Chamber Main].doc"

"National Assembly Chamber Main",Unrevised Hansard,08 Nov 2013,"[Take-488] [National Assembly Chamber Main][NAC-Logger][ct].doc"

Ms D KOHLER-BARNARD

Ms A VAN WYK: Hon Deputy Speaker, on 4 November 2006, an electricity blackout was triggered in Germany that ended up affecting more than 15 million households, not only in Germany but also Austria, Belgium, France, Netherlands, Portugal and Spain. On 26 February 2008, a failed switch and fire at an electrical substation outside Miami triggered widespread blackouts along the west coast of the United States of America, affecting over 4 million people. Affected by this blackout was also Cape Canaveral and the Kennedy Space Centre. Planes could not take off, trains came to a standstill, people were stuck in lifts, businesses had to close and traffic came to a halt. The chaos that erupted one can only but imagine.

The electricity blackout in Germany affecting other European countries compelled the European Commission's Director-General for Energy and Transport to start asking the question ``Which of the infrastructure within the European Union will have the biggest impact and need to be protected?''

The September 11 attacks in New York not only brought the whole city to a standstill, but its effects were felt all over the rest of the world. Flights were stopped, people were stranded and the markets closed down. I was attending an Inter-Parliamentary Union meeting in Burkina Faso as part of the South African delegation. Tens of thousands of kilometres from New York, we were affected by that incident. Also, this attack compelled the United States of America to relook and re-evaluate the identification of national key assets or critical infrastructure and their protection thereof. All democracies in the world have national key assets or critical infrastructure [Applause.]

A question has been asked here today on what exactly a key asset or critical infrastructure is. I will try and explain, but I know it's not going to be heard. It is those systems and assets, whether it's physical or virtual - in other words, computer systems - so vital to a country that their destruction or even the temporary incapacity thereof would have a debilitating impact on the security, the economic security, the national public health or the safety of a nation. It is therefore not rocket science to see that it is vitally necessary for any country to protect these installations. In order to do so, it is necessary to clearly identify them by conducting a proper evaluation thereof and implement the necessary security measures.

Continuous evaluation also needs to be done to improve and upgrade if necessary. Our infrastructure is vulnerable and we depend on it. We need to protect it, not only against possible terrorist attacks, but also flooding, earthquakes, landslides and any other possible natural disasters and criminal activities. That is the duty of any government and the ANC government will not shy away from that responsibility. [Applause.]

Hon Deputy Speaker and members, you, as much as I, might be confused as to why we are having this debate. Let me explain why I am saying this. First of all, during his budget speech, the Minister of Police indicated to this House in this Chamber that he is reviewing this Act. Secondly, on Wednesday this week the DA, in what can only be described as a publicity stunt, released to the media their own concept legislation called the Protection Of Critical Infrastructure Bill, knowing full well that the Minister did announce the review of the National Key Points Act.

So, in essence, there is agreement in this House that as a country we need to protect our key infrastructure and our assets. There is also agreement that the National Key Points Act is outdated and, flowing from there, the review. Or is it actually far more simple and transparent? Is it not as clear as glass that the purpose of this debate was not the Leader of the Opposition or her party's sudden interest in our country's security, but a last desperate attempt to get to the President, a man they loath?

I actually went through the DA's concept Bill and a couple of things are quite glaring and telling. The first is that we must be extremely grateful that the DA is not in government as they would govern through boards and committees. [Applause.] They also privatise, in this Bill, the executive authority's function by saying that the board will determine and declare areas of critical infrastructure. What is more, Minister, in this Bill in the same section where they deal with the board, they appoint a board of 11 or 12 people. These people are all government officials but, not knowing the Public Finance Management Act, PFMA, they then say that they must be paid. [Laughter.] Please, I mean, how can we take you seriously?

Clause 12(8) best demonstrates the lack of understanding of the opposition and the ignorance around security matters. In this clause, they state that this board will publish a list of titles and sectors of all places and areas declared on the SA Police Service's, SAPS, website. So, in fact, they are saying to the world - friend and foe - please, do not waste your time targeting building X, building Y is actually the one that is critical to us. This openness is another reason that interests me.

This comes from the same party whose leader, the Premier of the Western Cape, for two years, sat on the learner transport report addressing the bus accident in Rheenendal; it comes from the same party whose leader and the Premier of the Western Cape hid an internal Treasury report on communications contracts exposing, amongst others, improper cadre deployment, and from the same party whose mayor in Cape Town does not want to come clean on the Athlone Power Station precinct tender process because allegedly the contract was awarded to political friends and family. [Applause.]

Hon Deputy Speaker, the devil is in the detail. Chapter 6 clause 13(3) of the DA's Bill - by the way it should be 4; your numbering is wrong - reads as follows, and I quote:

The owner... [Interjections.]

The DEPUTY SPEAKER: Order, hon members. Allow the speaker to speak. Other people want to listen to her even if you don't want to. Please. Continue, hon member.

Ms A VAN WYK: I am quoting from their Bill and I want the ANC specifically to listen very carefully and to help people watching this. Listen very carefully to this:

The owner will not bear any cost for the provision of security measures ordered by the board.

Exposed! I read again:

The owner...

That is also private companies and private operators -

... will not bear any cost for the provision of security measures ordered by the board.

Exposed! Yet again, the interests of corporate before the interests of our country and her people. [Applause.]

I checked this and from the European commission's report, I quote:

The owners and operators of infrastructure, such as power stations or oil refineries, already spend millions of euros every year on protecting their assets. Not doing this could mean that they will go out of business.

But, in South Africa, we are expected to pay the private businesses' security because it's corporate before country! [Applause.] So, while the DA is making this noise over the President and security measures, they are proposing that government should bear the costs and provide security at private places that might be declared critical infrastructure - corporate over country and the people.

I want to say this to hon Lekota. Hon Lekota, I find it disappointing that as a previous senior Minister within the Justice and Security cluster under whose command at some point this Act fell, you didn't do anything about it. Nothing. In fact, the hon Lekota does not even know today from this podium as a previous Minister of Defence that military bases do not comprise national key points, but they are in fact declared as military installations - simple. [Applause.]

The hon Minister of Police has already, through a point of order, made a point that all Presidents and former Presidents' houses are declared national key points. Let it sink in; let us open our ears and let us hear it.

There is a question that has been asked about why it is taking so long. I think we have to balance the fact that we have competing interests that need to be taken note of. As we sit here today in this House, the Ad Hoc Committee on the Protection of State Information is still meeting outside of this House. They are still meeting because that Bill has not been passed in its totality yet. Obviously, you are going to need that Bill as well in order to protect some of the information that needs to be protected through this National Key Points Act. Obviously, it might be possible that some of the issues may be open issues, but you are going to require that some of them be closed issues.

Minister, I think in looking at this we also have to realise that this Bill is badly placed. Security should be with the police but the reporting part of it should be with State Security through Parliament, and not through the police, who the hon member will never allow us to have a closed meeting with, in any case, to discuss security issues.

Is hon Mfundisi still here or has he left? [Laughter.] I do need to say it. Hon Mfundisi was speaking here as if he is not aware of national key points, and as if it's from the devil himself. There is a place in the previous Bophuthatswana that is called Galowe. Mangope used to stay there. It was a national key point and hon Mfundisi was the governor at that place. [Applause.]

There is a story that children listen to and it has been told over the ages, but it has an adult moral to it also. It's a story about a prince without clothes. To each and every South African out there I want to say, think carefully. The opposition stand before you today in all their naked ugliness. [Laughter.]

There is but one party that puts the interests of South Africa and all her people - black and white, rich and poor - before any other interest. There is but one party that truly cares, and that party is the ANC. I thank you. [Applause.]

The LEADER OF THE OPPOSITION

UNREVISED HANSARD

NATIONAL ASSEMBLY

Friday, 8 November 2013 Take: 489

Ms A VAN WYK

"National Assembly Chamber Main",Unrevised Hansard,24 Jan 2014,"Take 489 [National Assembly Chamber Main].doc"

"National Assembly Chamber Main",Unrevised Hansard,08 Nov 2013,"[Take-489] [National Assembly Chamber Main][NAC-Logger][ct].doc"

The LEADER OF THE OPPOSITION: Madam Deputy Speaker, listening to the Minister of Police was like being trapped in a time warp and listening to a member of P W Botha's government justifying the National Key Points Act in the late 1980s, in this very Chamber. Perhaps he dusted off a speech that he found lying around his office, left in a corner by an apartheid Cabinet Minister. [Interjections.] Just as with the National Party of the late 1980s, the ANC is increasingly anxious to hide the actions of its leaders. It knows they can't be justified so it decides they must be hidden.

I want to start by thanking the hon Mario Oriani-Ambrosini. It's because of his tenacity that this Private Member's Bill is now going straight to the Police committee for deliberation, instead of South Africa having to wait for Minister Mthethwa to decide to deliver his so-called policy whenever he feels like it. Maybe it will be after the election, or maybe never. Hopefully Minister Nxesi will also get himself a copy of the legislation and read it.

Hon Groenewald, you can be assured that the Act does in fact give specific and limited definition for what constitutes a critical infrastructure installation, and hon Thring, my Private Member's Bill proposes the publication of a list of critical installations precisely so that they can't be used improperly to classify installations that are not critical to national security, but also so that people will not break the law unknowingly.

Hon Lekota, thank you very much for your support. We look forward to the deliberations in the Police committee when the hon Van Wyk and her colleagues will be able to scrutinize the Bill in all the detail they like, and consider for themselves whether or not they are willing to wait for the hon Minister to deliver his so-called policy whenever he feels like it.

Speaking of Minister Mthethwa, I am so happy that he and his colleagues have adopted the language of my Private Member's Bill –

critical infrastructure and not national key points. [Applause.] Perhaps the Police committee will do the same and adopt the Bill. In 1987, the late O R Tambo said in reference to the National Key Points Act:

It is a stratagem by which Botha tries to retain control over the lives of our people, to arrest the process leading to fundamental change, and to steer this process away from ...

[Interjections.]

The DEPUTY SPEAKER: Hon member, can you take your seat?

Prince M G BUTHELEZI: Madam Deputy Speaker, we can't hear anything and your appeal has been like water off a duck's back. [Inaudible.] We can't hear.

The DEPUTY SPEAKER: Yes, hon member. This is what I've been saying from the beginning. It's clear that this is not a debate but a howling house. I've been saying that from the beginning. Continue, hon member.

The LEADER OF THE OPPOSITION: In 1987 the ANC's own Oliver Tambo said the following in reference to the National Key Points Act:

It is a stratagem by which Botha tries to retain control over the lives of our people, to arrest the process leading to fundamental change ...

An HON MEMBER: Listen!

The LEADER OF THE OPPOSITION: Minister Mthethwa said today that the ANC will continue to do it. The National Key Points Act is here to stay. How different the ANC of today is from the ANC of its predecessors. After this debate South Africa's voters can be left in no doubt that, 100 years after its formation, the ANC has completely and utterly abandoned the values of its own founding fathers. I thank you. [Applause.]

Debate concluded.

The House adjourned at 11:18.

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