Judicial Matters Amendment Bill; Interception and Monitoring Bill: deliberations

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
8 October 2001
JUDICIAL MATTERS AMENDMENT BILL; INTERCEPTION AND MONITORING BILL: DELIBERATIONS

Chairperson: Adv J H de Lange

Documents handed out:
Judicial Matters Amendment Bill [B43 – 2001]
Interception and Monitoring Bill [B50-2001]
Interim Rationalisation of Jurisdiction of High Courts Bill [B44–2001]
Summary of Submissions on the Interception and Monitoring Bill
Amendments to Judicial Matters Amendment Bill (Draft: 02/10/2001) [awaited]

SUMMARY
The Committee passed the Interim Rationalisation of Jurisdiction of High Courts Bill.
The Chair went through the amendments to the Judicial Matters Amendment Bill. The only major discussion concerned the amendment to the Criminal Procedure Act that allowed the head of a prison to release awaiting trial prisoners on application to a magistrate. All the other clauses discussed were easily disposed of.

The Committee considered the submissions on the Interception and Monitoring Bill and the Judicial Matters Amendment Bill. Both these discussions were purely technical and substantive discussions ensued only in respect of a few matters in the Interception and Monitoring Bill. In this meeting the Committee completed the consideration of the submissions made on that Bill.

MINUTES
Interim Rationalisation of Jurisdiction of High Courts Bill
The only point raised by the Chair was that the Committee had previously agreed that the Minster would have to consult with Judges rather than the Judicial Services Commission on altering the jurisdiction of any high court. The Minister, according to the chair was concerned that the proposed change was unconstitutional. The Bill will therefore remain as tabled i.e. the Minister with consult with the JSC.

The Chair read the motion of desirability and the Bill was unanimously passed.

Judicial Matters Amendment Bill
Members of the drafting team; Mr Johan De Lange and Mr Labuschagne were present.

The Chair said that a new clause that is to be inserted in the Bill will amend Section 149 of Act 24 of 1936. The amendment is in the form of a proviso. Mr De Lange (drafting team) pointed out that this clause must be read with an additional new clause that will repeal section 33 of Act 42 of 2000 (Cross-Border Insolvency Act).

Section 19 of Act 67 of 1962 (Extradition Act) has been amended to allow for direct extradition, the Chair cited the Irish example where a whole process had to be embarked upon to have a person extradited to Ireland. This amendment will prevent this from occurring in the future.

Another new clause in the Bill will insert Section 63A into the Criminal Procedure Act 51 of 1977. This amendment will allow the Head of a prison to release awaiting trial prisoners if the prison population is such that it threatens the human dignity, physical health or safety of prisoners.

Mr Jeffrey (ANC) wanted S 63A(1)(c) to be made clearer to indicate that the prison head cannot release a person who is in on a lesser charge and a more serious charge. The Member suggested that the words ‘other’ or ‘in addition’ be added to achieve this.

The Chair said that this clause is needed because it will force officials to check whether the accused faces more serious charges.

Mr De Lange said that at the moment the clause reads ‘who is not in detention in respect of any offence’ and suggested that it be changed to ‘who is not also in detention.
Mr Jeffery was satisfied that his concerns were addressed.

Adv Smit (NNP) was worried that S 63A(1)(c)(aa) takes away the discretion of the magistrate to impose bail conditions.

The Chair pointed out that S 63A(3) allows the magistrate to impose further conditions.

In S 63A(3)(b) a correctional officer must explain to the accused the import of the order handed down by the magistrate if the accused is not present at the granting of the application. The chair commented that this was included so that the accused is aware of the nature of the
order and when he must appear in court. The accused must sign the document and it must be
returned to the clerk of the court.

Adv Smit was concerned that this could lead to unnecessary complications and delays when the accused avers that he has not been properly explained. It could well be that an accused could think that the case has been dismissed and he is free.

The Chair replied that this was a practical amendment and they could wait to see how it works. If it does not work the Magistrate has the discretion to call the accused to court when he makes the order. Already in S 63A(3)(b)(i) the obligation of the official to explain must be set out. Then the next sub clause can deal with the contents of the official’s affidavit.

Ms Camerer (NNP) was worried about S 63A(2)(c), which states that the magistrate must hear the application in chambers. This is a ‘closed door’ approach, with no access to media and it suggests an attempt to hide something.

The Chair replied that the procedure that is created must not clog up the court roles. In terms of S 63A a prosecutor must in writing state that the application will be unopposed.

Ms Camerer said she understood that but each time people are released mistakes are made and there is a public outcry.

Ms Chohan–Kota (ANC), in response to Ms Camerer, distinguished the releasing of sentenced prisoners from the release of an accused. Further, she suggested that the head of the prison must designate a person to explain the court order to the accused then the concern of Adv Smit will be met because there will be a designated person who will be more focussed on his task.

Adv Smit agreed with Ms Camerer that hearing the application in chambers makes it seem as if there is something to hide. He also suggested that the word ‘may’ is better.

The chair replied that as soon as we use may there could be a number of problems because appearances in court could increase the cost especially for the state. Legal Aid might also be involved. The chair however said that the words ‘must’ and ‘may’ will be bracketed so that it can be thought about a bit more.

Clause 63A(4)(a) states that the NDPP may make directives regarding the establishment of monitoring and consultative mechanisms for bringing an application and make directives for the procedure to be followed to bring the applications. Sub (b) states that these directives must be submitted to parliament.

Mr Jeffrey asked what the point was of Sub (b).

The Committee agreed that the prior to the directives taking effect must it be submitted to parliament and that the clause must be amended accordingly.

The Chair moved to the original Bill and said that Clause 5 and 6 concerns the Rules Board and the amendment simply makes provision that a judge of the Constitutional Court can be appointed Chairman therefore this is not problematic.

Another new clause in the Bill amends Section 9 of Act 90 of 1986. At the moment in terms of the Sheriffs Act only the South African Institute of Sheriffs makes nominates as to who represents the Sheriffs profession. The amendment allows for the nominations to come from the whole sheriffs profession. The Minister would chose between 6 and 9 from a list of 12 nominated persons.

Ms Camerer asked who exactly in the profession will make the nominations.

Mr De Lange (Drafters) replied that both Sheriffs and the Institute could nominate.

MS Chohan–Khota asked why 12 persons were nominated. It is not clear which province can have more than one person.

Mr De Lange said that the more people nominated gives the Minister more discretion. Also there will never be a province with more that one person representing the sheriffs profession.

Going back to the Bill the Chair said that all Clauses 7. 8 & 9 do is repeal sections in Acts.

Another new clause is an amendment to the Schedule of Act 72 of 1996. If there is no denunciation of Article 44 of the Hague Convention on the Civil Aspects of International Child Abduction, it will be tacitly renewed every five years.

The Chair pointed out that the amendments to Clause 10 are only technical. Clause 11 is rejected. Clause 12 is fine. Clause 13 which amends the Maintenance Act is simple in that a person can now approach a court in whose jurisdiction she is resident as opposed to where the order was made.

The Chair concluded by saying that all the Clauses from 14 onwards and the new clauses were only technical amendments.

Judicial Matters Amendment Bill
Adv de Lange told the Committee that most of the amendments left for discussion were purely technical in nature and concerned no substantive considerations.

The first issue to be raised was in relation to the long title. Adv de Lange told the Committee that they are waiting on information on a number of issues. These included the issue relating to the bail procedure, the amendments, already agreed upon that would affect the sheriff's office, and a report from Ron Pascer that Adv de Lange was waiting on. Mr Pascer was in the process of writing a report on the proposed bail amendment. The rest of the clauses in this Bill have by now undergone the full rigors of the legislative process. These were passed with relative ease and the Bill was then ready to be voted on but for the matters mentioned above.

The Committee moved on to discuss the submissions made on the Interception and Monitoring Bill.

Interception and Monitoring Bill
Clause 12
The Committee felt that UUNet had made a good suggestion: that the directives be issued with in three months of commencement of the Act.
Mr Labuschagne raised the point that there was a judge appointed to fulfill this duty, who would have to deal with all matters relating to the tapping of phones. Why then should the Judge President dictate the procedure if he was not going to be the one who applies that procedure? Adv de Lange conceded that this was a valid consideration but the legal fraternity would nevertheless have something to say about judges prescribing the procedure that they themselves will have to follow. To remedy this concern and to accommodate Mr Labuschagne’s point, it should be provided that the procedure be established after consultation with the judge who has been nominated to deal with these matters.

Similarly the Parliamentary Committee of he General Council of the Bar (GCB’s) submission was regarded as a good one.

MTN's submission on this clause related to a concern around oral directives. Adv de Lange said he was not amenable to oral directives and that this area did need close attention. To this end it would have to be provided that judges must give oral directions himself. Namely it should be required that the judge personally communicate a directive to the service provider.

Mr L T Landers (ANC) identified the problem that any police member could go to the service provider and say that they had an oral directive. This was possible because the Bill was in the first instance actually providing that the giving of oral directives was possible. Adv de Lange also recognised this problem and suggested that the only solution would be to make it excessively clear that oral directives were to be given in exceptional circumstances, and to conveyed personally by the judge to the service provider.

The Committee also decided that the provision in Subclause (2)(b) be changed to provide that after an oral directive is given, it must be backed up by a written one within 24 hours instead of the 48 hours which the section provided for, as it stood.

Clause 13
Under this clause the National Directorate of Public Prosecutions (NDPP) suggested that the National Director be included under Subclause (1). The Committee saw no problem with this addition and directed that the change be effected.

The GCB then submitted that they failed to see what the purpose of the words "may be admissible" in Subclause (2) were. The Committee suggested that these words indicated that the evidence did not have to be admitted into evidence. Instead there was a discretion on the part of the law enforcement agency as to whether they wanted to admit the evidence onto court or not. This would be important in the context of intelligence services where admitting certain evidence into court may reveal the source of that information when this is not wanted. Also it indicated that there was nothing inherent in the nature of evidence gathered in this manner that made it inadmissible, instead all it had to do was pass the usual test for admissibility.

Ms F I Chohan-Kota (ANC) submitted that the section dictated that evidence gathered in a manner other than in terms of this Act would not be admissible.
Adv de Lange also made a suggestion as to a possible meaning. He felt that the subclause was used in a broad sense. It was important from the intelligence gathering context because it would provide that if an intelligence agency was gathering information and during the course of that process the suspect admitted to a crime or gave away evidence, then that information could be used in court to prove an offence. So in the context where an intelligence agency is gathering information, not really trying to prove a specific crime, and they occasion across proof of a crime that has been committed then that evidence would be admissible.
In light of the discussion that had just ensued, Adv de Lange told the Committee that this subclause was a lot more important than he had originally felt. The subclause would require a lot more discussion and consideration.

Clause 15
The Committee agreed to all the suggestions made by the NDPP. Their third suggestion related to offences in which they suggested that it be an offence to tamper with a cellular phone which that person does not own. On their formulation it would be allowed for people to tamper or modify their phones if they own that phone. Adv de Lange said that the Act would not allow people to modify their phones in order to circumvent the Act. So under no circumstances could an individual modify their phones as to make them incapable of being intercepted. Modification could be done, but only to enhance the performance of the cellular phone.

Ms S M Camerer (NNP) raised the concern that in her view these offences should properly not be contained in this Bill. Instead they should be in another Act, perhaps the Telecommunications Act, where they could be dealt with better and in a more apt environment. Adv de Lange told her that this could be done in the future when it was decided to put all the communications issues in one Act. However there was an immediate need to create offences.

Mr L T Landers (ANC) argued that it was not simple to determine what would qualify as a modification prohibited under the Bill. He gave the example of gadgets placed to limit radiation, of upgrades and other processes that walked the fine line between complete and subtle modification. Adv de Lange pointed out that the test would be simple. Modifications that enhanced performance would be allowed, but modifications which had the sole purpose of circumventing the Bill would not.

Adv de Lange referred to the offences section, reminding the Committee that they had decided that the third offence was the one relating to interception equipment. Mr Labuschagne asked in respect of what Adv de Lange wished to create the offence, whether it was sale, possession or production of such equipment. He replied that all these needed to be made an offence, he wanted a complete prohibition.
Adv de Lange recalled that the Committee had decided that decided on another offence relating to the abuse of warrants.

Mr Landers told the Committee that there was another concern that would have to be remedied through the creation of an offence. He was referring to a case he had recently come across where Judge Gordon had granted a warrant that had been founded on false information. The warrant was questioned in court and the dubious nature of the warrant and the information it was founded on came to the fore. Adv de Lange agreed that this would also have to be made an offence.

Adv de Lange agreed with the submission made by Telkom that the penalties prescribed were too relaxed. The Chair, in keeping with his standard operating practice, called for a more "robust" penalty and simultaneously complained that the fine was too small.

The next submission considered was that of the Media Institute of South (MISA) and the Freedom of Expression Institute (FXI) who submitted that the fines were too high and that they should be reconsidered in light of the fact that there were service providers operating at low financial levels. Adv de Lange said this would not happen. They had failed to understand that the fines in the subclause were maximums and small service providers would not necessarily be ‘slapped’ with these maximums.

Clause 16
Ms Camerer pointed out that under this clause both UUNet and MTN were making the same point. Namely that the power given to the Minister of Communications in terms of this section was a function reserved for the Independent Communication Authority of South Africa (ICASA). Ms Camerer submitted that the power to revoke a license was regulated in a specific way within that industry. Over a number of years and through extensive consultation the industry had developed a standard practice whereby they were regulated by ICASA. To give the Minister such a power would be a disruption and an undermining of the principles governing the industry.

Adv de Lange appreciated Ms Camerer’s point but told her that there was no constitutional principle or principle in law that prohibited the Committee from creating legislation which gave this power to the Minister. Despite the fact that the industry had been regulated by ICASA for such a long time, there was nothing stopping the Committee from legislating to give the Minister the power to revoke a license.

Ms Camerer said this would be highly disruptive as the industry already had its disciplinary body. The addition of another one would create confusion and create fear in the industry that revocation of a license could come from another source. Adv de Lange pointed out to Ms Camerer that the Minister would not be a disciplinary body at all. The clause simply provided that if the institution continually transgressed the requirements then they would be shut down. Adv de Lange had the opposite attitude and he failed to see why the application of Clause 16 was limited to Clause 15(2)(b). He reminded that Clause 15(2)(b) was a very serious offence.
Ms Camerer made her point clear, saying that she was not opposed to the withdrawal of the license, the question was just who should do it.
Adv de Lange was not concerned about this section at all because, as he pointed out to the Committee, Clause 16 would apply only where the service provider was found guilty by a court of law of a Clause 15(2)(b) offence on two or more occasions.

The meeting was adjourned.