Cybercrimes and Cybersecurity Bill: deliberations

Meeting report

The Chairperson opened the meeting and welcomed everyone, including Mr Sarel Robbertse, the State Law Advisor from the Department of Justice and Constitutional Development (DoJ & CD).

He then went through the apologies.

Cybercrimes and Cybersecurity Bill: deliberations

The Chairperson asked Mr Robbertse whether he received a letter from the Open Democracy Advice Centre (ODAC), signed by Ms Alison Talley, and whether he responded to the concerns raised therein.

Mr Robbertse responded that he had just received the letter, but is yet to formally respond to it. However, he confirmed that he was in a position to respond to it.

The Chairperson then instructed him to respond to the letter as soon as possible.

Mr W Horn (DA) stated that the Committee ought to express its appreciation to ODAC for taking the initiative to focus the Committee’s and the Department’s attention to the submissions it made, which have not yet been dealt with. He referred to the comments he had made in the previous meeting that, “because of the receipt of comments that the Department does not agree with, it is unacceptable to push aside the due process by which parliamentary committees should follow.” Therefore, he emphasised that it is unacceptable for the Committee and the Department, after the public hearings, to only deal with the comments that they agreed with. He noted that some of the responses the Department gave in its written responses were in the negative. There are other stakeholders, who may lack the time and resources, and would be prejudiced because they would not know that the Committee had not dealt with their concerns appropriately. He therefore requested the Committee to reconsider the manner in which it was going about this process.

The Chairperson spoke about an organisation that represents various stakeholders, which had expressed concerns that if the Bill goes through in its current state, there will be serious challenges for the country. He asked, “is it really wise for us as Parliament, when we have been advised by experts…especially ODAC, which sits in these meetings and in international fora in the continent, to not take their recommendations into account? On what basis do you think the inputs they make can be overlooked?...” He emphasised that the Committee is obliged by the Constitution to inform the public of their work, as a form of enhancing both representative and participatory democracy. He then asked Mr Robbertse why he thought they shouldn’t deal with the concerns that had been raised, to the satisfaction of everyone, since they are not making the law for the parliamentarians and the Department. Instead, the law is being made for the people of South Africa.

Ms M Mothapo (ANC) stated that she fully agreed with the sentiments expressed by both the Chairperson and Mr Horn. She emphasised that the Department in subsequent meetings, must bring all the issues that it did not agree with. The Department should be given a chance to address all the issues they raised, for example those relating to the overlaps between the Bill and other pieces of legislation, such as amendments to the Regulation of Interception of Communications and Provision of Communication- Related Information Act 70 of 2002 (RICA), the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (PEPUDA), State Information Act, among others. After this has been done, the Committee would then be in a better position to make a resolution concerning the Bill.

The Chairperson noted that there is a representative organisation that wants to address the Committee on different issues that would potentially be contrary to what Mr Robbertse, on behalf of the Department, would present. The key principle is that the Committee must hear both sides. However, since this organisation was not present in this meeting, Mr Robbertse would proceed with his presentation. Apart from this, the Chairperson noted the overlaps between the Bill and the State Information Act, PEPUDA and RICA Act. He expressed concerns that the persons who are experts on these issues were not present in the meeting, and the members of the Committee are not lawyers, but politicians. “Why are we subjected to this kind of a situation?  Unless we are expected to rubberstamp legislation, maybe we should have asked Mr John Jeffrey, who is responsible for justice and Constitutional Development, to come and assist because the responsibility lies with the politician responsible…” He expressed regret that he was initially dismissive of the proposal to engage and consult with other committees, in order to fulfill the Committee’s responsibility to produce quality legislation because if this matter is taken to the courts, the limited resources of the state would be spent fighting a matter that could have been avoided. He therefore asked Mr Robbertse before he proceeds with his presentation, to answer the question why the Committee should proceed dealing with the Bill.

Ms G Breytenbach (DA) stated the importance of the Committee getting all the various matters of the Bill right because as the Chairperson stated, it is the job of the Committee to produce quality legislation. She expressed concern that some of the content of the Bill would evoke a lot of debate in an attempt to solve the challenges therein. She agreed with the views made by ODAC that the Bill be withdrawn.

Mr Robbertse discussed the issues raised by ODAC. He said the Bill was originally drafted for full consultation and during its development it received approximately 156 submissions, which created doubt on the finalisation of the Bill.

The Chairperson interjected and said that the history of the Bill had been given previously to the Committee by Mr Robbertse; therefore it was not necessary for him to repeat that. He insisted that the people who raised concerns with the Bill are entitled to be heard by the Committee. Therefore he posed the question whether the Committee should listen to Mr Robbertse justifying the Bill being considered in this forum.

Mr Robberse acknowledged that they did receive several comments indicating that the Bill ought to be amended. He expressed opposition to the suggestions that the Bill in its current form, should be withdrawn by Parliament altogether because not only does it prescribe certain standards, it was endorsed by various people, for example the service providers and other parties. He acknowledged that there were certain comments from particular people indicating that changes need to be made to the Bill. The Department had redrafted the Bill, considering the comments that had been made by the Committee in earlier meetings. The Committee must proceed with considering the Bill; however, there is a possibility for a second opportunity for public participation and consultation on the Bill if the Committee approves of it. The Department in its responses to the comments, expressly stipulated in detail why it did not take certain comments into account, for example, some may be catered for elsewhere in other legislations or the measures some of the comments were suggesting, would be contrary to the law.

Mr Robbertse proceeded to discuss the submissions by ODAC, which according to him, were in line with the other submissions relating to the Bill. The first issue that was raised concerns the Minimum Information Security Standards. ODAC requested that the relationship between this legislation and the Minimum Information Security Standards (MISS) was not addressed. He responded to this by saying that this Bill does not deal with MISS. There is already a law dealing with that i.e. Protection of Information Act of 1982. This was a document that was issued by Cabinet to give effect to the Protection of Information Act.

The Chairperson interrupted the presentation and stated that the Committee is not interested in the presentation Mr Robbertse was making because “whatever the cabinet does is not the business of this Committee.” He insisted that Parliament had to satisfy itself that the legislation will pass constitutional muster and that it is quality legislation. “There are other people raising fundamental issues. So, should we continue listening to you to re-motivate that we have not offered these people an opportunity?”

Mr Robbertse insisted that the Committee may embark on a second round of consultations on the Bill to assist it to come to a conclusion on the Bill.

The Chairperson reiterated that the Committee has a duty to consult the public.

Mr Horn raised issue with an earlier statement by Mr Robbertse that in previous meetings, the Department discussed the various comments from the public consultations and no issues were raised by the Committee. He found this assertion to be very problematic and inaccurate. He referred the Committee to a previous meeting where they began dealing with the specific comments and the Committee made a number of negative comments. In this meeting, they considered more than the first ten clauses of the Bill and the members indicated that there are some technical provisions, therefore they decided to place everything on hold in order to get some technical advice from other committees of parliament. This was at the first meeting. At the second meeting, the Committee was only confronted with the comments that the Department did not agree with, therefore the bulk of the comments that the Department agreed with, had never been dealt with by the Committee.

The Chairperson again, emphasised that they have a constitutional obligation to hear all interested parties and for a Bill to pass, it must be consistent with the Constitution and that it will not be challenged at the cost of the taxpayer, therefore the Committee must make time for all inputs and for all parties to be heard. He again expressed regret that when Mr Horn proposed technical assistance for the Committee, he dismissed it and did not feel that it was necessary. He asked the Members to give their views on the question of why they should proceed with the process of considering the Bill.

Ms Mothapo was of the view that the Department, represented by Mr Robbertse, be provided the chance to respond to each of the concerns raised one after the other.

Mr Robbertse emphasised that the Bill in its current form, complies with international best practice and was endorsed by experts, albeit certain chapters in the Bill seem to be contentious. But in general, there was consensus on most of the other provisions, especially on the cybercrimes portion of the Bill. He however asked the permission of the Committee to consult the Minister in order to get further instructions.

The Chairperson recommended that the Bill be taken back to parliament for reconsideration, whereby other role-players would be engaged so as to ensure that quality legislation is produced.

Mr Robbertse agreed with the Chairperson’s suggestion.

The Chairperson stated that they would need time and that the parliamentary legal advisors should advice this Committee so that in the end, they can satisfy Parliament that whatever they pass would be quality legislation that will pass constitutional muster.

Mr Horn agreed that there is indeed consensus on the cybercrimes portion of the Bill. However, there are a number of questions to be addressed. He suggested that the Department should take into account the advice expressed during the public participation process. The Committee should also consider whether the Bill should be split so that the cybercrimes portion could be finalised and the cybersecurity portion can be dealt with afterwards, because so far, a lot has been done on the cybercrimes portion, but not much on the cybersecurity portion.

The Chairperson stated that the Committee will give the Department an opportunity to consult with its principals, including the Minister. At the same time, the Committee will also consult with the legal advisors in Parliament, and then the Committee will decide how to move forward. It was agreed that there is a need for a legislation to regulate the matters of cybercrimes and cybersecurity; however the legislation must be consistent with the Constitution i.e. one that would pass Constitutional muster.

The Chairperson thanked the Honourable members for attending the meeting and took the opportunity to remind them that the Bill is sought to be passed, not for the benefit of the Committee or of Parliament, but for the interest of the people of South Africa.

The meeting was adjourned.