African Court Bill: adoption of Resolution; Interception & Monitoring Bill: deliberations; Crossing the Floor Legislation: consi

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
19 June 2002
AFRICAN COURT BILL: ADOPTION OF RESOLUTION; INTERCEPTION AND MONITORING BILL: DELIBERATIONS; CROSSING THE FLOOR LEGISLATION: CONSIDERATION OF NCOP AMENDMENTS

Chairperson: Adv J H De Lange (ANC)

Documents handed out:
Amended Draft to Report on African Court (Appendix 1)
Second Amended Draft to Report in African Court (Appendix 2)
Interception and Monitoring Bill (Working Draft 4A)
Proposed Insertions by the Department of Communications [IMB 83] (Appendix 3)
Determination of Delegates Act 69 of 1998 (Appendix 4)
Committee Report on Crossing-the-Floor Legislation (Appendix 5)
Item 3 Part B Amendment (Appendix 6)
NCOP Proposed Amendments to the Constitution [B17B-2002] (Appendix 7)
NCOP Proposed Amendments to the Loss or Retention of Membership of National and Provincial Legislatures Bill [B25B-2002] (Appendix 8)

SUMMARY
The two Crossing-the-floor amendment Bills were discussed and agreed to by Members.

The discussion on the African Court Bill resulted in the restructuring of the Committee's Report on the Bill, and a few amendments were made regarding the jurisdiction of the court and the appeal procedure.

Clauses 27 and 28 of the Interception and Monitoring Bill were discussed. The discussion on the former raised concerns with the party responsible for bearing the costs of the link between the interception centre and the system of the service provider, the time frames for the implementation of the equipment enabling the interception and the proposals made by the DG of the Department of Communications in this regard were discussed. During the Committee's deliberation on Clause 28, the proposals made by the Director General of the Department of Communications were highlighted. Other issues discussed included the person responsible for conducting the audit, the necessary security clearance required for the staff dealing with the confidential information and the type of information to be covered in the audit and directive.

MINUTES
Crossing the Floor Legislation
The Chair stated that, as he understood it, the problem here is that the Constitution was amended in 1999 and Item 3 in Part B, contained in the document of the same name, was added to address the possible occurrence of an "equal surplus", because the Constitution did not provide a formula to resolve this deadlock before the introduction of this amendment. It does now, however, provide that the surplus would be granted to the party that had received the greater number of votes during the last election.

Yet this amendment does create a technical problem when a new political party is formed which has not taken part in the last election. The formula still applies here but in this case the seats are not allocated to the party that had received the highest number of votes during the last election, but they are instead awarded in a manner consistent with democracy. This is the same wording used in the Constitution. It is, however, highly unlikely that this situation would ever come to pass, but it has been decided that this formula would be included in the legislation should it arise.

Mr J De Lange (Department drafter) stated that two options could be pursued here. Firstly, this amendment has been included to resolve the deadlock, because it is a deadlock-breaking mechanism and is a highly unlikely situation. The route followed by the municipal structures could be followed. Secondly, the more democratic route could be followed which allows the legislature itself to resolve the issue. This option is encapsulated by the above mentioned amendment.

The Chair requested clarity on the merging of parties.

Mr De Lange replied that these parties would in any event have participated in the last election, and the problem only arises when a new party is formed that has not participated.

The Chair inquired whether Section 61(2)(b) of the Constitution provides that at least one of the parties must have participated in the last election.

Mr De Lange answered in the affirmative, and noted that this section refers to the determination of provincial delegates. Here ten delegates are elected to the NCOP and the Constitution is concerned with which party gets these ten delegates. The second amendment to the Constitution is done via Act 69 of 1998, and deals with the determination and allocation of special and permanent delegates. This Act provides that the party must have six permanent delegates and four special delegates, and each party entitled to a delegate must have at least one permanent delegate. The number of permanent delegates each party is allowed to have is determined by dividing the total number of delegates by six and then multiplying this amount by ten, disregarding any fractions.

Should the total number of remaining delegates exceed the number of permanent delegates, the former has to be reduced so that total number of special delegates must be at least equal or less than the total number of permanent delegates. If the number of special delegates is less than four, one of the permanent delegates would then have to be made a special delegate. This would be done in terms of the sequence of votes cast in the last election, from the party with the lowest to the highest number of votes. This process is relevant because it is to the advantage of the parties to have permanent rather than special delegates, as only the permanent delegates can fill vacancies.

Furthermore, should the total number of special delegates exceed four, the excess number would be converted into permanent delegates. This would again be to the advantage of the party and would be done, this time, from the party with the highest to the lowest votes received in the last election. Here the same deadlock-breaking mechanism is needed under the previous formulation, which provides that should a new party be formed, the legislature itself would decide the matter.

Mr M Mzizi (IFP) stated that this is "simple arithmetic", and noted that in the field of mathematics the remainder of a fraction is always converted to the highest number. This means that 3,6, for example, would be converted to four. Yet clarity is requested regarding the situation in which two parties both have 3,6 percent of the votes, and whether this would be disregarded at all.

The Chair replied that it would not be disregarded, because in this situation the seats would be allocated to the party that has received the highest number of votes. Should the percentage of votes received be equal, as suggested by the Member, the deadlock-breaking mechanism outlined earlier would then be employed.

The amendments proposed by the NCOP were agreed to by the Committee.

Report on African Court Bill
The Chair stated that this Report has to be processed before the establishment of the African Union in July 2002. This Report has even been discussed with Arthur Chaskalson, Chief Justice of the Constitutional Court and he does not foresee any problems with the African Court, but it is accepted that problems could very well arise in theory.

This Committee is faced with two distinct options here: it could either approve the Protocol on the Establishment of the African Court on Human and People's Rights (the Protocol) itself, or it could extend the jurisdiction of the African Court in the protocol. The Report says two things: firstly, it proposes that the Protocol be adopted and, secondly, it provides that Parliament has to approve any extension of the African Court's jurisdiction.

Point 1
The Chair recommended that the full name of the Constitution should be spelt out here, in the document entitled the "Second Amended Draft" (the Second Draft).

Point 2
The Chair noted that the phrase "Intergovernmental Organizations" has now been inserted under Point 2 in the Second Draft, as opposed to the formulation in the document entitled "Amended Draft".

Point 3
The Chair suggested that Point 3 in the Second Draft be amended to include Article 34(6) of the protocol, in terms of which the jurisdiction of the African Court is extended. The word "simplistic" should be removed from this provision, and the phrase "and the Constitution" should be inserted before "there is…" in Point 3. The phrase "comparative and" should also be inserted before "literal" in the first line of Point 3.

Point 6
The Chair suggested that this should actually become Point 1.

Point 7
The Chair noted that a new Point 7 has been inserted in the Second Draft and now clearly spells out the relationship between the African Court and the African Commission, whereas this relationship was not considered in the Amended Draft. This Point 7 would then become the new Point 2.

Point 8
The Chair noted that this provision would then become the new Point 3.

Point 9
The Chair noted that this would become the new Point 4.

Point 10
The Chair noted that this would become the new Point 11.

The new structure would then read as follows: the current Point 6 would become the new Point 1, the revised Point 7 would become the new Point 2, Point 8 would become Point 3, Point 9 becomes Point 4, the current Point 1 becomes the new Point 5, Point 2 becomes the new Point 6, a new Point 7 dealing with Article 34(6) would be inserted, the current Point 3 would become the new Point 8, Point 4 would become Point 9, Point 5 becomes Point 10 and Point 10 becomes Point 11.

The Chair inquired whether Members agreed to the revised version of the Report.

Dr Delport (DP) stated that the revised Report does resolve the doubts surrounding the application of the African Court.

The Chair suggested that Point 4 of the Second Draft be amended by replacing the phrase "from a practical point of view" with "noting that", as the Chief Justice has himself stated that the possibility of this coming to pass is so remote. Furthermore, should any judgment handed down by the African Court conflict in any manner with the Constitution, South African courts would not implement that decision.

Dr Delport agreed with the Chair, but contended that such an approach amounts to "guarding the position of the Constitutional Court jealously" when a body that could even remotely be construed as competition, such as the African Court, is introduced.

The Chair agreed with these sentiments but stated that should the African Court be introduced, there is at this stage a very remote possibility of this conflict occurring. Furthermore, it is difficult to envision a court reaching a different conclusion on a judgment of the Constitutional Court, such as the case on equality, or even on its interpretation of the African Charter.

Ms S Camerer (NNP) supported the position put forward by Dr Delport, and it does seem as though all steps are being taken to remove the possibility of any competition being introduced for the Constitutional Court. The Report's response to this concern is that, should this conflict arise in future, it would be considered then. Yet it is contended that this is not the desired approach, and this Committee should instead capture the precise position should such conflict occur, via the African Court Bill (the Bill).

The Chair agreed, and stated that this Committee should take time to consider such an approach, because the creation of a dual system and possible competition is not desirable in this regard. The Report should provide that, should possible conflict arise in future, the South African court system would review its position or situation.

Mr Mzizi agreed with the concerns raised by both Dr Delport and Ms Camerer, but expressed uncertainty as to the functioning of the African Court in South Africa, as the South African court system is already large and structured.

The Chair informed Mr Mzizi that the African Court would not be based in or operate from within the Republic, but would rather be located somewhere on the Continent. It would thus function in much the same manner as the European Human Rights Courts, and should therefore complement the South African legal system.

Mr Mzizi then inquired whether the African Court would share the status of a South African High Court.

The Chair answered in the negative, and stated that a parallel system would be implemented here, and the Chief Justice has suggested that this structure should be complementary to the South African system. In this regard the version of Point 2 of the Report as currently contained in that document is the secret here.

Ms F Chohan-Kota (ANC) stated that it is unfortunate that Members are employing terms such as "competition" here, and focus should instead be placed on developing the South African human rights legislation and body of rights. In this regard, the establishment of an African Court should be seen as an important opportunity for South African courts to export the richness of its own human rights jurisprudence to the rest of the continent. This must not be done via competition, but rather via hybridization and cross-pollination, as it were.

Furthermore, that approach does not abide by the legal doctrine of stare decisis, and thus the decisions of the African Court would merely be influential and not prescriptive to the South African legal system. This is the approach generally adopted, as international courts on human rights use the decisions of their colleagues to inform their own judgments on matters that are not regulated via legislation. This is a positive development of human rights jurisprudence. Also, Section 232 and 233 of the Constitution are also relevant here, and implies that South African courts would also be influenced by the decisions handed down by the African Court.

The Chair agreed with this statement, and requested Mr Allers, a drafter from the Department, to capture this tension in the Report.

Ms Chohan-Kota referred to the subsequent renumbering of the Second Draft, and stated that the Chair called for Point 5 to be renamed the new Point 10. Yet this then seems to contradict the new Point 4, the present Point 9 in the Second Draft, as this provides for two distinct bodies of law. It is recommended that this position be clarified by inserting the phrase "the protection of human rights" in the new Point 10.

The Chair stated that he understood the intention of this proposal, but all the remedies available via the South African court system first have to be exhausted. The African Court can then be applied to for a broader interpretation of the relevant right under the African Charter, if the African Commission is not satisfied with the interpretation given by the South African court.

Ms Chohan-Kota suggested that it would only be possible to apply to the African Court if the right in question is protected in the African Charter.

The Chair requested Mr Allers to capture these sentiments in the Second Draft, as the African Charter would be relied on broadly to interpret the rights in the South African Constitution. It does not mean that the African Charter itself would have to pass through the South African court system.

Adv M Masutha (ANC) stated that Section 167(3)(b) of the Constitution deals with the jurisdiction of the Constitutional Court, and implies that the Constitutional Court would not have jurisdiction in international law matters unless that matter relates to a constitutional matter. There are thus two distinct strains of law here: international law could be developed via the international courts, which may or may not bear on the Constitution or, alternatively, the Constitutional Court could develop jurisprudence on the international law matter. The common law also has to be considered here as the Constitution expressly recognises this system of law, and it has its own stream of law that includes African customary law. In this regard the Supreme Court of Appeal would be the appropriate court to hear such matters, unless the dispute in question involves a Constitutional matter, in which case the Constitutional Court would be resorted to.

Thus all these streams of law follow their own course and would only converge when a constitutional matter also becomes involved. In this instance the Section 231 of the Constitution would be relied on, and provides that the relevant provision in the Constitution takes precedence. This then becomes the exception to the general rule and only operates in a few borderline cases and these matters are, by their very nature, hard cases for which workable solutions have to be identified.

The Chair stated that he agreed with Adv Masutha to a large extent, but in the Pharmaceutical Manufacturers case the Constitutional Court itself held that common law principles would be embodied in the Constitution over time. This makes it clear that the South African common law is a complementary system of law, and this has to be captured in the Second Draft as the "political glue that holds the rest together".

Dr Delport inquired as to the official documentation that enables crossing-of-the-floor.

The Chair replied that the Independent Electoral Commission (IEC) would draft this form itself, in consultation with other relevant parties. Yet this Committee has to be ready and the legislation has to be in place to allow this, and the legislation could very well come into operation on Friday 21 June 2002.

Interception and Monitoring Bill
Chapter 5: Interception Capability, Interception Centres and Costs

Clause 27: Interception capability of telecommunication services and storing of communication-related information
Clauses 27(1) and (2)
The Chair noted the recommendations from the Director-General of the Department of Communications (the DG), contained in the document entitled "Proposed Insertions by the Department of Communications".

Mr Labuschagne, drafter from the Department, stated that the proposals from the DG seeks to amend Clause 27 of the Interception and Monitoring Bill and submissions have also been received from Telkom and MTN in this regard. The current formulation of Clause 27(2)(a)(iii) provides that the Minister of Communications (the Minister) may declare a period of time for which the communication-related information is to be stored under this clause, and MTN has raised concern with the possibility that this period may exceed twelve months.

The Chair stated that the provision should be amended to read that the information must be stored for a period not less than two years, as one cannot expect the law enforcement agencies to fight crime effectively in less than one year. The Chair stated that he was, in fact, trying to decide whether this period should be extended to two or three years.

Mr Labuschagne informed the Committee that Telkom currently only stores this type of information on its own customers, and not those of other service providers such as MTN or Vodacom under Clause 27(1)(b).

The Chair requested clarification on the precise meaning of the phrase "communication-related information".

Dr Delport replied that this definition is captured in Clause 1 of the Bill, and is essentially a record of the use of the system by a particular person, and includes information stored on the user's system.

Mr Labuschagne contended that the phrase "generated or received" in that definition is the crux of the matter.

The Chair stated that he did not have "much sympathy" for Telkom and MTN, as they seem to have sufficient resources to sponsor sports events and the like, and can therefore afford to provide this service as it is in the public interest. The decision will therefore rest with the Minister.

Mr Labuschagne drew Members' attention to time frame in Clause 27(2)(b)(iii) of the Bill.

The Chair called for this period to be extended to "twenty-four or thirty-six months", and the service providers have to store all information. Clarity was requested from Mr Labuschagne on the DG's proposal in this regard.

Mr Labuschagne replied that the DG's proposal does deviate from the Bill because the Bill suggests that the cost of the installation of the technology that enables interception of the particular communication from the relevant base station of the service provider should lie with the State, whereas the DG proposes that this cost should properly lie with the service provider.

The Chair contended that the State should pay for this link and this very question was posed to the Department of Intelligence, which replied that it was not sure who would bear the cost here. That department was then requested to look into this matter, especially at international precedents in this regard, and were told that if they are able to prove that the international trend is for service providers to bear this cost, then such an argument would be considered by this Committee. Yet that Department has not provided any feedback to this Committee, and the logical assumption is therefore that it has not been able to find any such proof. The net result is that the State has to bear this cost.

Furthermore, it would be problematic to now shift this responsibility to the service providers without sufficient evidence for this decision. Mr Labuschagne is requested to inform the Department of Intelligence that it has one more day to present it findings in this matter to this Committee, as it might just be able to unearth evidence in support of the DG's proposal.

Ms Chohan-Kota suggested that Clause 27(1)(a) of IMB 83 is identical to the corresponding clause in the Bill in the manner in which it deals with the capability issue, and it is aimed at providing further clarity with regard to the connection and its purpose in Clause 27(1)(b).

The Chair informed Members that two different systems are being dealt with here. The first is the network of the telecommunications service providers that facilitates and stores the communication, and the second is the interception centres operated by the State. The pivotal question here is which of these parties is responsible for the cost of installing the link between the two systems, that enables the communication to be intercepted and monitored by the law enforcement agencies. The DG proposes that this cost should lie with the service provider, yet the current formulation of Clause 27 in the Bill provides that this cost should properly lie with the State.

It is noted that Clause 27(1)(b)(c) in IMB 83 is a new addition, and Clause 27(1)(b) (b) should be added to Clause 27(1)(b)(a) , and the new Clause 27(1)(b)(c) and (d) should become the new Clause 27(1)(b)(c). Clarity is requested as to the reasoning behind the DG's proposal that the service providers should bear this cost.

Mr Labuschagne responded that their contention is based on the issue of compatibility, as the DG does not want one system to be corrupted by the hardware of the other, should the two be different. The contention here is thus that, should the State install any equipment that the service provider is not happy with or that is not compatible to its own hardware, the service provider should then become involved in the costs of the requisite equipment. Mr Labuschagne then expressed his confusion with the need to specifically provide for a connection to make the two systems compatible when they should be compatible from the very outset.

The Chair replied that Telkom has to provide this Committee with accurate details of this cost, and thus Clause 27(1)(b)(b) will be left open till such time. Clause 27(1)(b)(c) however, cannot be accepted, because the service provider cannot be expected to cover the costs of the State's monitoring and interception centres. Clause 27(1)(b)(d) is controversial, and this Committee would also consider this proposal if sufficient information can be supplied in support of its insertion in the Bill. Mr Labuschagne is thus called on to include Clause 27(1)(b)(b) and (d) in Clause 27 of the Bill with the proviso that these matters "must still be decided after proof is received from the DG of Communications". Should Clause 27(1)(b)(a) and (b) be kept separate?

Mr Labuschagne agreed with the Chair that Clause 27(1)(b)(a) and (b) should be kept separate. He has consulted with MTN on this matter and was informed by them that, apart from the link between their system and the interception centre, there are also other necessary facilities needed to transfer the information to interception centre. MTN contends that it remains uncertain as to which party is responsible for bearing the cost of installing this equipment.

The Chair maintained that all the facilities needed to ensure that the system of the service provider and the State's interception centre are compatible has to be borne by each party. The only dispute here lies with the connection between the two under Clause 27(2) of the Bill. The service provider must put all necessary facilities in place within the next six months, because it has had the luxury of four or five years to prepare itself and it knew that this legislation was on the way.

Mr Labuschagne contended that this does not offer any sort of solution, because Clause 27(1) in the Bill places the obligation on the service provider, and this obligation commences immediately upon the date on which this clause comes into operation. Yet the Minister may only issue a directive as to the precise manner in which Clause 27(1) has to be complied with at a later date, and this thus creates conflict between the two provisions. In fact, Clause 27(7) of the Bill provides that the Minister may issue such directive within a period of two months after the fixed date.

The Chair disagreed with Mr Labuschagne and contended that these provisions deal with two separate and distinct issues. Firstly, with the compatibility of the two systems, and in this regard the Bill states that no service provider can install a system that is not compatible with that of the interception centre. The second issue deals with how quickly the service provider can put its equipment in place for the provisions of the Bill to come into operation, and in this regard the directive has to be secured from the judge. The Bill has to provide that both these issues have to be secured within six months, and the Minister can therefore have no discretion regarding this time period, in terms of the granting of licenses or the stipulation of fixed dates.

Mr Labuschagne suggested that the time periods in both Clause 27(2)(b) and Clause 27(7)(b) should be altered to "not less than twelve months".

The Chair inquired whether the phrase "may from time to time" as currently contained in Clause 27(2) should be retained.

Mr Labuschagne answered that this decision lies with Members.

The Chair stated that the problem created here is that the service providers such as MTN and Vodacom etc. would already have received their licenses by that time, and this provision should therefore perhaps be amended to provide "or the date upon which this section comes into operation".

Mr Labuschagne replied that this concern is already covered by Clause 27(7) as that clause deals with existing service providers, whereas Clause 27(2) deals with future service providers.

The Chair recommended that the time period in Clause 27(2) then be amended to reflect "six months", and the period for existing service providers under Clause 27(7) should be two months.

Mr Labuschagne disagreed.

The Chair reiterated his initial recommendation and stated that existing service providers should be provided with the directive in question within two months, whereas future service providers under Clause 27(2) should be issued with these directives immediately upon receiving their license.

Clarity is requested on whether the phrase "on the date" or "at the time" should be adopted in Clause 27(2).

Ms Camerer proposed that the former phrase be accepted.

The Chair agreed, and questioned whether Clause 27(7) should not be properly placed immediately after Clause 27(2), as these are the two most important provisions in this clause. Furthermore, Clause 27(2) should be amended by the insertion of the phrase "subject to subsection 7".

Ms Chohan-Kota inquired as to non-compliance with Clause 27(7), and whether the Minister could revoke the license.

Mr Labuschagne replied that the same sanction should be applied in both Clauses 27(2) and (7).

The Chair suggested that Clause 27(2) could also be interpreted to refer to existing service providers as well, despite the fact that it is aimed at future service providers. Thus the phrase "subject to Subsection 7" should be inserted here to clarify this matter.

Mr L Landers (ANC) stated that Clause 27(7)(a) does refer back to Clause 27(2)(a), and inquired whether this cross-reference would create a problem.

The Chair answered in the negative, but nevertheless requested Mr Labuschagne to look into this matter. Should it create any difficulties Clause 27(2) would simply have to be repeated in Clause 27(7).

Mr Labuschagne contended that these two subclauses cannot be interpreted to contradict each other, as Clause 27(7) refers to Clause 27(2)(a) only.

The Chair requested Mr Labuschagne to consider this matter in any event.

Ms Camerer inquired whether any service provider has been able to properly implement these facilities within two months, as this seems to be a very short time period.

The Chair replied that the DG has deliberated on this matter for a significant period of time, and his proposal is geared towards protecting the interests of those parties who actually deal with these facilities and who are actually responsible for providing this service. Yet his opinion on the timeframes to be implemented in this chapter has not been requested.

The Committee decided earlier to rule out Clause 27(1)(c) as proposed by IMB 83, but its use of the phrase "acquire relevant facilities" does not necessarily translate into an acceptance that the service providers would bear the costs of the installation. Furthermore, Clause 28 of the Bill aims to avoid the situation in which two entities purchase equipment which is not compatible, simply because they did not consult each other prior to the purchase. Thus Clause 27(1)(c) in IMB 83 seeks to make each party responsible for the physical purchasing of the equipment needed by it, but makes the State responsible for bearing the costs of such purchase.

The Chair disagreed, and stated that the State itself has to bear all costs in this regard.

Ms Chohan-Kota reiterated her contention that the provision does not require the service provider to actually pay for the equipment, but only to "acquire" it.

The Chair disagreed and stated that the rest of the Bill provides that the State must bear these costs, and no evidence has yet been made available to support the view that the service providers should bear this cost. It is thus not clear why the DG proposes that the service provider should be responsible here, and Mr Labuschagne is requested to ask the DG to explain its contention that the service provider should acquire this equipment.

Mr Labuschagne replied that this concern has been identified, and Clause 28(2) of the Bill provides that the Minister may issue directives to the law enforcement agencies to acquire the necessary equipment and also to consult with the service providers to ensure compatibility of the two systems.

The Chair stated that this provision covers the concern raised by Ms Chohan-Kota, but maintained that the DG still has to explain his reasoning in this regard.

Clause 27(3)
Mr Labuschagne informed Members that the Telkom submission proposes the extension of the time period in this provision.

The Chair disagreed, and stated that Telkom seems to forget that its majority shareholder is the South African government itself. The Bill requires it to comply with the set conditions and it has to abide by these, as the Bill imposes obligations on all government departments to report to Parliament on the expiration date of its obligation period.

Mr Landers agreed, and inquired whether this provision could be challenged.

The Chair answered in the negative, as the implementation clause would be invoked here. The fact of the matter is that if the legislation is put into operation but its machinery is only capable of operating after a six month period from this commencement date, it would mean that the judge would not be able to grant the interception order. This situation cannot be allowed to occur. This Committee could perhaps consider the situation in which the previous interception and monitoring legislation could remain in effect during this transitional period, or the decision could be taken to put Chapter 5 into operation at a later date than the rest of the legislation. This would mean that the previous legislation would not be repealed in its entirety.

Clause 27(4)
Mr Labuschagne referred to the proposed Clause 27(5)(d) by the DG in IMB 83 that the service providers should store this information at their own cost.

The Chair questioned whether the version of Clause 27(5)(c) proposed by the DG should perhaps be amended to specifically include the storage of information, by inserting a phrase to the effect of "particularly including". Mr Labuschagne is requested to consult the DG on this matter, but the revised version of Clause 27(5)(c) is provisionally accepted.

Clause 27(5)
The Chair stated that the precise content of Clause 27(5)(b) has to be spelt out clearly.

Clauses 27(6) and (7)
The Chair noted that no concerns were raised with these clauses.

Clause 28: Interception centres
Mr Labuschagne informed Members that the version of Clause 28 proposed by the DG in IMB 83 is a new concept, as he is seeking to create a central interception centre. Each law enforcement agency would then has its own subcentre, and the aim of this system is to provide uniform communication standards between the different centres. This would prevent the situation in which three different types of communication facilities are not used, such as between Vodacom, MTN etc.

The Chair stated that the other significant amendment in this clause is the proposed introduction of a Chief Executive Officer (CEO), who would then be linked to every interception centre. The DG stated that this was decided on by the Minister so that one of the relevant Ministers could be made responsible for ensuring uniformity here, as each centre would have only one person responsible for it: the CEO.

The formulation of Clause 28(1)(a) in IMB 83 can be retained, but the word "after" should be inserted before the word "consultation", and the remainder of the provision dealing with the CEO an also be inserted in Clause 28(1) of the Bill. Thus the version of Clause 28 currently contained in the Bill would be amended in two ways: firstly, the Minister would now be responsible here and not the DG, and secondly the CEO is introduced.

Mr Landers inquired whether this implies that a single CEO has to be introduced for all centres, or whether one CEO will be made responsible for each centre.

The Chair stated that this provision has to be clarified to state clearly that the CEO would be responsible for all interception centres, and one person would be appointed to head each of the centres under the CEO and would report directly to the Minister of Justice and Constitutional Development.

Mr Labuschagne stated that if the CEO is a public official, his appointment and terms of office etc. has to be regulated.

The Chair replied that the CEO would in all likelihood be seconded from a range of law enforcement agencies, because the Minister would be closely involved with such agencies and would consult them in this matter. Furthermore, the directive issued to the law enforcement agency has to comply exactly with the information actually collected, and has to create a legal obligation that a computer or similar audit has to be compiled of the information given and the directive issued. The information collected here must only be forwarded to the judge granting the directive or to the Minister. This is the only way that would allow the process to be evaluated in terms of whether any illegal activities have been conducted.

Mr Labuschagne is requested to reduce these concerns to writing, and to include that the relevant judge has to be held accountable to the Portfolio Committee on Intelligence, and that Parliament should at least exercise its oversight role here. Also an executive position should be created for correcting all the errors and to deal with cases of gross abuse. This at least provides a framework for the operation of these functions, and the precise detail would be added at a later stage.

The Chair stated that Mr Landers would now be the Chair of this Committee till the meeting is adjourned.

Mr G Magwanishe (ANC) stated that he has a problem with the type of staff that are employed at the interception centres and their security credentials, as contemplated in Clause 28(1)(e) as proposed by the DG in IMB 83. It is suggested that their security competence cannot be too narrowly formulated.

Mr Landers (the Acting Chair) replied that this is aimed at preventing those staff members from leaking this important and confidential information to spies, and thus they require a high security level clearance to gain access to such information.

Ms Chohan-Kota disagreed with Mr Magwanishe, and contended that a tightly formulation clause is needed here to firstly ensure the security of the entire interception centre and, secondly, to ensure that the balance between effective crime fighting and individual security is maintained. If this balance is not maintained, this provision could be challenged constitutionally.

Imam G Solomon (ANC) requested clarity on the precise content of the audit that would be conducted and to the discretion of the judge in this regard, as this could vary from one judge to another.

The Acting Chair informed the Member that the DG himself stated that proper checks and balances would be put in place in this regard and the audit would evaluate and check whether the directive was in fact carried out properly, such as whether the proper person was targeted. The audit would thus correct these types of anomalies to prevent any invasions of privacy. There is thus general consensus that it is an excellent suggestion by the DG.

Mr Mzizi inquired whether the law enforcement officials could unilaterally decide to intercept the person actually targeted by the directive, if it is discovered that they have in fact "tapped" the communications of the wrong person.

The Acting Chair replied that this would not be possible, as they would have to apply to the judge for a new directive.

Imam Solomon suggested that the audit should not deal with large amounts of information, but should rather focus specifically on particular discrepancies, as surely the judge would have the details of the directive and the type of information targeted.

Mr Magwanishe requested clarity on the precise meaning of the phrase "security competent" in Clause 28(1)(e) of IMB 83.

The Acting Chair requested Mr Labuschagne to check whether this term is dealt with or defined in any other security legislation, and flagged this issue for later discussion.

Mr Labuschagne agreed and questioned who would be responsible for conducting the audit, as this person has to be specifically included in the Bill.

The Acting Chair replied that this matter has not yet been decided, but the DG will be consulted in this matter. Surely this would be someone au fait with the whole process, as far as the lodging of applications, granting of directives and carrying them out is concerned. This person should also be aware of the technology necessary to perform this function and the security requirements.

Mr Labuschagne inquired as to the position should the service provider refuse the auditor access to the system, as the Bill does not place any sort of obligation on the service provider in this regard.

The Acting Chair stated that the intention here is that all the service providers would conduct their own internal audit, to ensure that the confidential information is not stolen.

Ms Chohan-Kota stated that the DG suggests that all that is needed here is for an audit to be conducted at the central interception centre, and not necessarily at each service provider's centre. The only aspects that have to be audited is whether the requests from the interception centres to the service providers actually correspond with the requests in the judge's directive. Furthermore, mention was made that the Inspector General should perhaps conduct this audit, and this proposal is supported because the Inspector General is, firstly, a constitutionally created entity and secondly, has the necessary security clearance to access such information.

Mr Labuschagne urged Members to be mindful that, in practice, Judge Gordon would issue the directive to the South African Police Services (SAPS) which is then handed over directly to the service provider, and does not go to the interception centre. In fact, the interception centres cannot be aware of all these orders, as this would be too difficult to monitor in practice.

The Acting Chair agreed with Mr Labuschagne to a certain extent and stated that the DG's proposal here focuses on ensuring accountability, yet the Acting Chair is of the opinion that the Inspector General should be employed to conduct these audits because it has absolute security and has an office that is properly resourced and managed. Also, no service provider can deny it access to its system and records, nor can an interception centre, and they have to provide any information requested by the Inspector General. Clause 28(1)(g) as proposed by the DG in IMB 83 provides that each centre has to have an internal computer audit system in place, and Mr Labuschagne is requested to consult the DG in this matter.

Ms Chohan-Kota stated that an interception procedure cannot be enacted that allows SAPS to approach the service provider and request that the interception order be implemented without the interception centre actually having been notified of this. At this point there should be some sort of record of this transaction, such as information as to the identity of the service provider in question, the specific nature of the information requested etc. Surely this is the type of information to which the audit has to be confined?

Mr Labuschagne replied that if this route is followed, the application documentation and the actual directive from the judge would have to be provided in duplicate to both the interception centre and the service provider. This information would have to be included here as well as the directive would contain the name of the applicant, the service provider and the person targeted, and this information would have to be clearly spelt out at the initial stage of the process.

Ms Chohan-Kota suggested that the computer system referred to under the proposed Clause 28(1)(g) in IMB 83 would be relevant here, and would include facilities such as a software package that filters through some of the relevant information, which would then be archived.

The Acting Chair agreed with the Member.

There were no further questions or comments and the meeting was adjourned.

Appendix 1
AMENDED DRAFT; PARLIAMENT

Report of the Portfolio Committee on Justice and Constitutional Development on the Protocol on the Establishment of the African Court on Human and Peoples' Rights

The Portfolio Committee on Justice and Constitutional Development, having considered the request for approval by Parliament of the Protocol on the Establishment of the African Court on Human and Peoples' Rights referred to it, noting that

1 if adopted the Protocol will result in a dual system of protection of human rights. One in terms of the Constitution and the other in terms of the African Charter on Human and People's Rights;

2 in terms of article 5 of the Protocol only the Commission State Parties and African Organizations have direct access to the Court;

3 from a simplistic literal reading of the Protocol there is a potential conflict between section 167(3) of the Constitution and Articles 28(2) and 30 of the Protocol

4 from a practical point of view the possibility of a conflict actually happening is remote;

5 it will not he possible to appeal on human rights matters from the Constitutional Court to the African Court or from the African Court to Constitutional Court;

6 in terms of section 167(3)(a) of the Constitution the Constitutional Court the highest court in all constitutional matters. The jurisdiction of the African Court on the other hand shall in terms of Article 3(1) of the Protocol extended to all cases and disputes submitted to it concerning the interpretation and application of the Charter, the Protocol and any other relevant Human Rig instrument notified by the States concerned;

7 in terms of article 7 of the Protocol the African Court shall only apply the provisions of the African Charter and any other relevant human rights instruments ratified by the States concerned;

8 in terms of article 50 of the African Charter the African Commission can only deal with a matter submitted to it after making sure that all local remedies if they exist have been exhausted, unless it is obvious to the Commission that the procedure of achieving these remedies would be unduly prolonged. In other words a case relating to the protection of human rights will have to go through our court system before it can be dealt with by the Commission

9 in terms of section 231(4) of the Constitution international agreements only become law in the Republic when it is enacted into law by national legislation, and

recommends that-

the House, in terms of section 231(2) of the Constitution, approve the said Protocol.

The Committee further resolves that if the Executive at any stage makes a declaration in terms of article 34(6) of the Protocol Accepting the competence of the Court to receive cases under article 5(3), such a declaration shall first be tabled Parliament for approval.

Appendix 2
SECOND AMENDED DRAFT; PARLIAMENT

Report of the Portfolio Committee on Justice and Constitutional Development on the Protocol on the Establishment of the African Court on Human and Peoples' Rights

The Portfolio Committee on Justice and Constitutional Development, having considered the request for approval by Parliament of the Protocol on the Establishment of the African Court on Human and Peoples' Rights referred to it, noting that

1 if adopted the Protocol will result in a dual system of protection of human rights. One in terms of the Constitution and the other in terms of the African Charter on Human and People's Rights;

2 in terms of article 5 of the Protocol only the Commission State Parties and African Organizations have direct access to the Court;

3 from a simplistic literal reading of the Protocol there is a potential conflict between section 167(3) of the Constitution and Articles 28(2) and 30 of the Protocol

4 from a practical point of view the possibility of a conflict actually happening is remote;

5 it will not he possible to appeal on human rights matters from the Constitutional Court to the African Court or from the African Court to Constitutional Court;

6 in terms of section 167(3)(a) of the Constitution the Constitutional Court the highest court in all constitutional matters. The jurisdiction of the African Court on the other hand shall in terms of Article 3(1) of the Protocol extended to all cases and disputes submitted to it concerning the interpretation and application of the Charter, the Protocol and any other relevant Human Rig instrument notified by the States concerned;

7. in terms of article 2 of the Protocol the African Court shall, bearing in mind the provisions of the Protocol, complement the protective mandate of the African Commission, conferred upon it by the African Charter.

8 in terms of article 7 of the Protocol the African Court shall only apply the provisions of the African Charter and any other relevant human rights instruments ratified by the States concerned;

9 in terms of article 50 of the African Charter the African Commission can only deal with a matter submitted to it after making sure that all local remedies if they exist have been exhausted, unless it is obvious to the Commission that the procedure of achieving these remedies would be unduly prolonged. In other words a case relating to the protection of human rights will have to go through our court system before it can be dealt with by the Commission

10 in terms of section 231(4) of the Constitution international agreements only become law in the Republic when it is enacted into law by national legislation, and

recommends that-

the House, in terms of section 231(2) of the Constitution, approve the said Protocol.

The Committee further resolves that if the Executive at any stage makes a declaration in terms of article 34(6) of the Protocol Accepting the competence of the Court to receive cases under article 5(3), such a declaration shall first be tabled Parliament for approval.

Appendix 3
INTERCEPTION AND MONITORING BILL [B 50-2001]
19 June 2002

PROPOSED INSERTIONS AS PRESENTED BY THE DEPARTMENT OF COMMUNICATIONS

Chapter 1
Introductory Provisions

1. Definitions and interpretation

Page 8
"monitoring device" means any electronic, mechanical or other instrument, device [or], equipment or apparatus which is used or can be used, whether by itself or in combination with any other instrument, device [or], equipment or apparatus, to listen to record and to retrieve archived communication related information from a telecommunication system;

Chapter 5
Interception Capability, Interception Centres and Costs

Page 33
[7] 27. (1) Notwithstanding any other law, [no] a telecommunication service provider [may] must--
(b) (a) provide [any] a telecommunication service which [does not have] has the [capacity] capability to be [monitored] intercepted; store communication-related information.
(b) provide a connection whether fixed or mobile between the telecommunications service provider and the centres.
(c) acquire relevant facilities and devices to be installed in the centres for purposes of monitoring.
(d) bear the costs generated from all calls made between the service provider and the centres.
4.
(cc) storing of communication-related information in terms of subsection (1)(b),
(dd) provision of the connection referred to in 1(c)

(iii) acquisition of relevant facilities and devices to be installed in the centres.

Page 34

telecommunication service provider must, subject to section 37(1), at own cost [and within the period, if any, specified by the Minister of Communications in a directive referred to in subsection (4)(a),] acquire, whether by purchasing or leasing, the [necessary] facilities and devices [to enable the monitoring of communications in terms of this Act] referred to in subsection (2)(a).
[(3)](5) [The investment, technical, maintenance and operating] Any costs incurred by a telecommunication service provider in enabling-
(a) a telecommunication service to be [monitored] intercepted; and
(b) communication-related information to be stored,
(c) provide a connection whether fixed or mobile between the telecommunications service provider and the centres and.
(d) acquire relevant facilities and devices to be installed in the centres, including the investment, technical, upgrading and costs, must be carried by the telecommunication service provider providing such a service and storing such information.

[Central monitoring] Interception centres

[8] 28. (1)(a) The Minister in consultation with other relevant Ministers must at state expense
(i) establish, , operate and maintain [central monitoring] interception centres for the [authorised monitoring] interception of communications in terms of this Act;
(b) the Minister must appoint a Chief Executive Officer, who will be responsible for the day to operations of the centres
(c) the Chief Executive Officer will be the accounting officer of the centres
(d) these centres will be declared national key points in line with Act 102 of 1980 and will be called 127 centres
(e) staff to be employed at these centres should be security competent and will be subjected to a security screening investigation as stipulated in Act 38 of 1994
(f) the centres will provide relevant service to all enforcement agencies.
(g) the centres will have an internal computer audit system to archive all requests for services rendered
(2) (i) The centres shall be exempted from acquiring a licence and payment of any fees in terms of any section of the Telecommunications Act;
(ii) The exemption in (i) shall only apply to the centres when performing functions in terms of this Act.

***Deletion of the rest of section 28.

Chapter 9
General Provisions

54. Regulations
The Minister may make regulations, regarding any matter that may or must be prescribed in terms of this Act or any matter, which is necessary or expedient to prescribe for the proper implementation or administration of this Act.

Appendix 4
DETERMINATION OF DELEGATES (NATIONAL COUNCIL OF PROVINCES) ACT 69 OF 1998

[ASSENTED TO 28 SEPTEMBER 1998] [DATE OF COMMENCEMENT: 7 OCTOBER 1998]

(English text signed by die President)

ACT

To provide for the determination of permanent and special delegates to the National Council of Provinces as contemplated in section 61 (2) of the Constitution; and to provide for matters connected therewith.

1 Definitions

In this Act, unless the context otherwise indicates-

'delegate' means any delegate in the delegation of a province referred to in Section 60 (1) of the Constitution;

'permanent delegate' means a permanent delegate referred to in section 60 (2) (b) of the Constitution:

'province' means any province referred to in section 103 (1) of the Constitution;

'provincial legislature' means any provincial legislature contemplated in section 104 of the Constitution:

'special delegate' means a special delegate referred to in section 60 (2) (a) of the Constitution.

2 Determination of permanent and special delegates

(1) Every party represented in a provincial legislature which in terms of section 61 (1) of the Constitution is entitled to delegates in the delegation of the particular province, must have at least one permanent delegate.

(2) The number of permanent delegates of a party which is entitled to more than one delegate is determined by multiplying the total number of delegates to which such a party is entitled by six and dividing the result by ten, disregarding any fraction of a number.

(3) The remaining number of the total number of delegates to which a party contemplated it subsection (2) is entitled, are the special delegates of that party: Provided that if the number of special delegates so determined is more than the number of permanent delegates of that party, the number of the special delegates must be reduced in favour of the number of permanent delegates so that he number of special delegates is equal to or less than the number of permanent delegate of that party.

(4) (a) If the total number of special delegates determined in terms of subsection (3) in respect of a particular provincial legislature is less than four, the delegates of the parties that are entitled to only one delegate in the delegation of the particular province must, despite subsection (1), become special delegates in the sequence from the lowest to the highest number of votes that have been recorded for those parties during the last election of the provincial legislature concerned, until four special delegates have been allocated to parties in the provincial delegation concerned.

(h) If the total number of special delegates determined in terms of subsection (3) in respect of a particular provincial legislature is more than four, the special delegates so determined must, despite subsections (2) and (3), become permanent delegates in the sequence from the highest to the lowest number of votes that have been recorded for the parties concerned during the last election of the provincial legislature concerned, until six permanent delegates have been allocated to parties in the provincial delegation concerned.

3 Short title

This Act is called the Determination of Delegates (National Council of Provinces) Act 1998.

Appendix 5
COMMITTEE REPORTS:

National Assembly:

1. Report of the Portfolio Committee on Justice and Constitutional Development on the Constitution of the Republic of South Africa Second Amendment Bill [B 17D - 2002] (National Assembly - sec 74), dated 19 June 2002:

The Portfolio Committee on Justice and Constitutional Development, having considered the Constitution of the Republic of South Africa Second Amendment Bill [B 17D - 2002] (National Assembly - sec 74) , amended by the National Council of Provinces and referred to the Committee, reports that it has agreed to the Bill.

Report to be considered.

2. Report of the Portfolio Committee on Justice and Constitutional Development on the Loss or Retention of Membership of National and Provincial Legislatures Bill [B 25B - 2002] (National Assembly - sec 76), dated 19 June 2002:

The Portfolio Committee on Justice and Constitutional Development, having considered the Loss or Retention of Membership of National and Provincial Legislatures Bill [B 25B - 2002] (National Assembly sec 76), amended by the National Council of Provinces and referred to the Committee, reports that it has agreed to the Bill.

Report to be considered.

Appendix 6
Part B - Formula to determine party participation in provincial delegations to the National Council of Provinces

1. The number of delegates in a provincial delegation to the National Council of Provinces to which a party is entitled, must be determined by multiplying the number of seats the party holds in the provincial legislature by ten and dividing the result by the number of seats in the legislature plus one.

2. If a calculation in terms of item 1 yields a surplus not absorbed by the delegates allocated to a party in terms of that item, the surplus must compete with similar surpluses accruing to any other party or parties, and any undistributed delegates in the delegation must be allocated to the party or parties in the sequence of the highest surplus

3. If he competing surpluses envisaged in item 2 are equal, the undistributed delegates in the delegation must be allocated to the party or parties with the same surplus in sequence of votes recorded, starting with the party which recorded the highest number of votes during the last election for the provincial legislature concerned.

[Item 3 added by s.2 of Act 3 of 1999.]

Appendix 7
SELECT COMMITTEE ON SECURITY AND CONSTITUTIONAL AFFAIRS (NATIONAL COUNCIL OF PROVINCES) AMENDMENT TO CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA SECOND AMENDMENT BILL
[B 17B—2002]

NEW CLAUSE

That the following be a New Clause:

Amendment of Schedule 3 to Act 108 of 1996, as amended by section 2 of Act 3 of 1999 and section 19 of Act 34 of 2001

3. Schedule 3 to the Constitution of the Republic of South Africa, 1996, is hereby amended by the substitution for item 3 of Part B of the following item:

"3. If the competing surpluses envisaged in item 2 are equal, the undistributed delegates in the delegation must be allocated to the party or parties, including any merged party as contemplated in section 61(2)(b), with the same surplus in sequence of votes recorded, starting with the party or merged party which recorded the highest number of votes, including combined votes in the case of a merged party, during the last election for the provincial legislature concerned, but if any of the parties with the same surplus—
(a) came into existence on account of changes of party membership or subdivision of parties within that legislature as contemplated in section 61(2)(b); and
(b) did not participate in the last election for the provincial legislature concerned,
the legislature must allocate the undistributed delegates in the delegation to the party or parties with the same surplus in a manner which is consistent with democracy.".

Appendix 8
SELECT COMMITTEE ON SECURITY AND CONSTITUTIONAL AFFAIRS (NATIONAL COUNCIL OF PROVINCES) AMENDMENTS TO LOSS OR RETENTION OF MEMBERSHIP OF NATIONAL AND PROVINCIAL LEGISLATURES BILL
[B 25B—2002]

NEW CLAUSE

That the following be a New Clause:

Amendment of section 2 of Act 69 of 1998

2. Section 2 of the Determination of Delegates (National Council of Provinces) Act, 1998, is hereby amended by the substitution for subsection (4) of the following subsection:

"(4) (a) If the total number of special delegates determined in terms of subsection (3) in respect of a particular provincial legislature is less than four, the delegates of the parties that are entitled to only one delegate in the delegation of that province must, despite subsection (1), become special delegates in the sequence from the lowest to the highest number of votes, including combined votes in the case of a merged party as contemplated in section 61(2)(b) of the Constitution, that have been recorded for those parties during the last election of that provincial legislature, until four special delegates have been allocated to parties in the provincial delegation: Provided that if any of the parties that are entitled to only one delegate in the delegation of that province—
(i) came into existence on account of changes of party membership or subdivision of parties within that legislature as contemplated in section 61(2)(b) of the Constitution; and
(ii) did not participate in the last election of that provincial legislature,
the legislature must, in a manner which is consistent with democracy, elect so many delegates from the delegates of those parties to become special delegates as may be necessary to allocate four special delegates to parties in the provincial delegation.
(b) If the total number of special delegates determined in terms of subsection (3) in respect of a particular provincial legislature is more than four, those special delegates must, despite subsections (2) and (3), become permanent delegates in the sequence from the highest to the lowest number of votes, including combined votes in the case of a merged party as contemplated in section 61(2)(b) of the Constitution, that have been recorded for the parties concerned during the last election of that provincial legislature, until four special delegates have been allocated to parties in the provincial delegation: Provided that if any of those parties—
(i) came into existence on account of changes of party membership or subdivision of parties within that legislature as contemplated in section 61(2)(b) of the Constitution; and
(ii) did not participate in the last election of that provincial legislature,
that legislature must, despite subsections (2) and (3) and in a manner which is consistent with democracy, elect so many special delegates of those parties to become permanent delegates as may be required to allocate four special delegates to parties in the provincial delegation.".

LONG TITLE

On page 2, in the sixth line, after "party;" to insert:

to amend the Determination of Delegates (National Council of Provinces) Act, 1998, in order to make provision for the determination of certain delegates of a provincial legislature which has been reconstituted on account of changes of party membership and mergers or subdivision of parties;