Traditional Courts Bill, Child Justice Amendment Bill & Cybercrimes Bill: Department briefings, with Deputy Minister

Meeting report

Opening remarks by the Chairperson
The Chairperson welcomed the Members, the Members of Provincial Legislatures, the Department and all other officials and stakeholders present at the meeting. She then introduced the agenda of the meeting.

Traditional Courts Bill [B1B-2017]: Briefing by the Department
Ms Theresa Ross, Principal State Law Adviser, DoJCD, said that the object of the Bill was to create a uniform legislative framework regulating the roles and functions of traditional courts in the resolution of certain disputes, in accordance with constitutional imperatives and values. The Bill was intended to improve access to justice by enhancing the effectiveness, efficiency and integrity of traditional courts for resolving disputes, with the view to promoting social cohesion, co-existence and harmony. Traditional courts had to be aligned with the new constitutional dispensation. Every effort had been made to address the concerns raised in the two previous bills dealing with traditional courts which were introduced into Parliament in 2008 and 2012 – most significantly about the role of women and vulnerable groups. These had since been considered and addressed. This Bill recognised other levels of dispute resolution in the traditional justice system, such as headman or headwoman’s court, senior traditional leader’s court and king or queen’s court.

Ms Ross said that a Reference Group, established by the National Dialogue on the Bill in December 2015, met on numerous occasions during 2016. The group consisted of representatives of civil society, traditional leaders and government. Its mandate was to discuss outstanding matters relevant to the Bill, assist in the development of the Bill and pave the way for its introduction to Parliament. The deliberations of this group helped shape the Bill into its current form. Before it was introduced, it was subjected to a costing exercise by the Costing Unit within the Department. Due to economic constraints, it was accepted from the outset that existing resources would have to be used for its implementation. The main financial implications for the state would be in the form of personnel, training as well as goods and services. As this was a Section 76 Bill, it affected the provinces and would be subject to public hearings in the provincial legislatures.

Discussion       
Mr G Michalakis (DA; Free State) noted that the first six matters which the traditional courts were competent to deal with in terms of the Act were all of criminal nature. However, the courts could choose whether to refer its matters to the National Prosecuting Authority (NPA) for a possible institution of criminal proceedings. Are the referrals not always imperative or is the onus still with the courts?

Mr D Malema, ANC MPL, Gauteng Provincial Legislature, asked what the role of the South African Police Services (SAPS) is in enforcing the orders made by the traditional courts. If the intention of the Bill was to regulate the courts, does that mean that there was no regulation hitherto its inception?

Mr Blessed Gwala, IFP MPL, KwaZulu-Natal Provincial Legislature, thanked the Department and the Deputy Minister for the presentation. He appreciated that the Bill was controversial, sensitive and complex. He felt that the involvement of magistrates in these courts somewhat neutralised the proceedings; some of amaKhosi were ordained traditionally but some were put in power when the courts came into being. He reckoned that traditional courts were democratic because all observers were allowed to contribute in the proceedings before iNkosi and iziNduna would make the final verdict; passing the Bill into law should not affect these existing conditions. The personnel who were already in place should not be undermined but should be capacitated however necessary. He also mentioned that there was usually a budget allocated for magistrates and not for amaKhosi – they run the courts with their own funds.

Mr K Motsamai (EFF; Gauteng) asked if iziNduna were going to receive conditions of service such as medical aids, allowances, etc.

Mr A Gxoyiya (ANC; Northern Cape) pointed out that many traditional courts were perpetuating patriarchal culture; he then asked if they were going to be forced to change, even if the women were comfortable with the sexually discriminating norms that existed within the courts.

Mr Gxoyiya asked where the traditional courts were ranked within the criminal justice system. Do traditional courts impose criminal records on those who are found guilty? Can a conventional court overrule a verdict made by a traditional court?

Mr Gxoyiya highlighted the importance of traditional courts being inclusive in the language used during their proceedings. He said that even if the local communities mostly speak a common language, the courts should still cater for exceptions; there should be interpretation services availed for the plaintiff and the accused where necessary.

Mr Gxoyiya asked if the referral of an unresolved case to an appointed Justice of the Peace was the final arbitration point. If the Justice is unable to enforce the implementation of the verdict, where will the matter be referred to? Would there still be public hearings to ensure thorough consultation?

Mr Thabo Matiwane, ANC MPL, Eastern Cape Provincial Legislature, appreciated the submission made by the Department. He said it was comforting to know that the plethora of issues that were being raised against the Bill, during consultations, had been addressed.

Mr Matiwane pointed out that some traditional courts in the Eastern Cape dealt with matters – such as banishing individuals from the communities - which were considered to be at odds with the Constitution’s Section 21(3). He asked the Department to confirm that the Bill would address this.

Mr Matiwane noted that the Bill provides for the reviewability of a decision taken by a traditional court, in a conventional court. He reckoned that this provision would cause conflict between traditional courts and other courts and added that there needed to be a legal remedy that would address this conflict.

Ms Amanda De Lange, FF+ MPL, Gauteng Provincial Legislature, pointed out that the judicial system was already understaffed and may not have the capacity to review case decisions that were referred from traditional courts. She said that the referrals would undermine the authority of traditional courts and would degrade the proceedings into a circus, with financial implications.

Mr A Motswana, ANC MPL, North West Provincial Legislature, said that not enforcing the rulings made by traditional courts would make the courts toothless and the consultation processes more difficult. Instead of referring some of the cases for further review, why aren’t there more resources being allocated for traditional leaders to give them more recognition and authority in the decisions they make on the cases?

The Chairperson appreciated that the Bill had clearly made strides towards addressing gender equity. She asked if the full and equal participation in traditional court systems, provided by clause 7 of the Bill, spoke to achieving at least 50% participation of women.

Responses
Mr John Jeffery, Deputy Minister of Justice and Constitutional Development, reiterated that the purpose of the Bill was not to establish traditional courts but to regulate them; they were already existing and fully functional with all the resources at their disposal. He explained that while these courts could resolve disputes arising from criminal conduct, they were not officially recognised as criminal courts but rather generic courts; hence why they would not impose a criminal record on the culprit. This was also to avoid problems with the NPA - who had the power to institute criminal proceedings on behalf of the state. The unresolved cases would then be referred to Magistrates’ Courts.

Deputy Minister Jeffery indicated that amaKhosi and iziNduna were already being remunerated for their service and that Bill would not imply an immediate increase of their salaries. Sheriffs of the courts worked on a commission basis.

Deputy Minister Jeffery indicated that in the Reference Group there was a consensus between traditional leaders and civil society concerning gender equity; that it would not necessarily imply 50% participation of women in the courts. This provision referred to the gender equality clause contained by the Constitution. Some of the traditional courts involved the community in their proceedings; some had assigned officials who conduct the proceedings. The extent of participation by women was not controlled. He said that an effective way of addressing patriarchy was to promote and empower women participation rather than blanket enforcement.

Deputy Minister Jeffery indicated that the South African Judicial Education Institute Act was already providing for training of judicial officers and there were also some traditional leaders deployed to teach upcoming ones about traditional law.

Deputy Minister Jeffery said that there would be people appointed to enforce the orders made by the traditional courts and clause 9(b) of the Bill provided for the consequences of non-compliance and the actions to be taken by the Justices of the Peace. He added that any case verdict was challengeable for further review at a Magistrates Court.

Deputy Minister Jeffery acknowledged that this was a controversial and sensitive Bill. He indicated that there were some members of civil society organisations who were calling for the President to abolish the Bill but the President could not yet do anything because it was still tabled at the NCOP. Abolishing the Bill would hinder access to justice and dispute resolution for people living in deep rural areas. The traditional courts had been regulated, under the Black Administration Act, through customary law but not since the establishment of the Constitution.

Deputy Minister Jeffery said that the Committee was legally bound to issue the Bill for public commentary because it was a Section 76 Bill. The Members also had to have public hearings through their provincial legislatures and it was up to them to define how they would undergo that process; as long as there was as much consensus obtained as possible – from traditional leaders and rural community members living under traditional authority.

Ms Ross said that the Bill placed an emphasis on the restoration and resolution of disputes that were disturbed the harmony within communities. The involvement of the SAPS and the Justices of the Peace were limited to preserve the authoritative nature of the system – through traditional leaders.

Ms Ross said that there was still an existing legislative fragmentation within the country because certain districts still applied the legislation of the former Bophuthatswana. The Bill aimed to create uniformity throughout the country. There would have to be training of designated traditional leaders for the implementation of the Bill once it became law.

The Chairperson thanked the Deputy Minister and the Department for the briefing, and the Members for the questions and comments. She said that the Committee now had a better understanding of the Bill and indicated that there would still be further briefings on the Bill through consultative processes.

Child Justice Amendment Bill [B32B-2018]: Briefing by the Department
Deputy Minister explained that this was a section 75 Bill and therefore the Committee could not amend it but could only propose amendments to the NA; the NA had the authority to overrule the proposals.

Mr Sarel Robbertse, Senior State Law Adviser, DoJCD, explained that the primary objectives of the Bill was to amend the principal Act to increase the minimum age of criminal capacity of children from 10 to 12 years and to remove the requirement of having to prove criminal capacity for purposes of diversion and preliminary inquiries. The Act had provided for the review of the minimum age after five years of its enactment and for the Justice Minister to compile a report with recommendations. For this review, a national experts’ workshop was held in February 2015 with attendance by selected experts in the children’s sector, academia, psychologists, psychiatrists, the judiciary, the Department of Health, the NPA, Legal Aid SA and civil society organisations specialising in children issues, including the members of the Inter-Sectoral Committee on Child Justice.

The statistical data in the report indicated that very few children between 10 and 11 years were in conflict with the law. Also, recent research on the brain indicated the development of the prefrontal cortex was not achieved until early 20s or later. This played a role in the establishment of the minimum age for criminal capacity of a child. The report noted that the African Charter on Human and Peoples’ Rights principles and guidelines had urged African countries not to set the minimum age below 15 years. Some states had set it at 18 years such as Nigeria, Mali and Guinea and some at 16 years such as Angola, Cape Verde and Liberia.

Despite the position in other African countries, the Report on the Review of the Minimum Age of Criminal Capacity recommended that at this stage, the age be capped at 12 years and not higher. This was because it would be too big of a leap to raise it from 10 to 14 without tangible evidence of the effectiveness, availability and adequacy of the support programmes currently offered to children less than 10 years old, in conflict with the law. The report recommended the removal of the Act provisions which required the state to prove criminal capacity of a child 10 years or older but younger than 14 years, for purposes of diversion and preliminary inquiries; citing that it had unintended negative consequences for children. Cabinet approved the Ministry report in February 2016 which was submitted to Parliament. The Department briefed the NA and NCOP Justice Committees in September 2016. In June 2017 the Department submitted a report to the Portfolio Committee on its consultation with the National House of Traditional Leaders and civil society organisations specialising in children’s issues.

Discussion
There were no questions or comments from the Members on this Bill.

Cybercrimes Bill [B6B-2017]: Briefing by the Department
Mr Robbertse said that cybercrime was fast-growing and in 2017 it cost the banking industry more than R250 million. From January to August 2018, digital banking showed a 64% increase on the 2017 figures. There were other verifiable statistics of cybercrime outside the banking sector and they were estimated to be equal to that in the banking sector.

Mr Robbertse said that the existing laws did not address cybercrime effectively. For example, for substantive criminal law, specific conduct should be criminalised as cybercrime. Object-based criminal law was inadequate to investigate cybercrime where the evidence was of an incorporeal nature; they had not kept pace with the more intrusive and complex investigative measures which were needed to investigate cybercrime. In most instances, these crimes were found to have a transnational dimension and this necessitated formalised international cooperation; traditional forms of cooperation were slow and not conducive for cybercrime investigations due to the transient nature of evidence. The law of evidence needed to provide for the admissibility of electronic evidence and the circumstances under which it may be admitted as evidence.

It was crucial for service providers to cooperate by providing the essential information, which was available at their disposal, to assist with investigations; a legislative response would have to balance the respective human rights involved. The modus operandi of committing cybercrime was found to be rapidly evolving and there was thus a need for continual involvement of experts. Another remedy for this was to align policy with international trends, generally accepted standards and practices. A cybercrime legislative framework should not be restricted to criminal conduct considered as cybercrime but must also apply to traditional offences with a cyber-element.

Mr Robbertse then gave a brief overview of the provisions of the Bill and detailed its components – the clauses of the various chapters. He reiterated that the Bill was tagged according to Section 75 of the Constitution. This meant that the NCOP Committee could only propose amendments to it, which would be considered and then adopted or rejected by the Portfolio Committee on Justice and Correctional Services in the NA.

Discussion
Mr Michalakis indicated that there had been people who had claimed and proven to be spied on by the state and therefore the Bill would also incriminate the state. What are the implications of this as well as the recent findings made by the High Court on the RICA Act?

Mr Michalakis expressed his concern about the lack of capacity of the specialised unit within the SAPS and that National Treasury had not shown the willingness to provide the necessary funds for the Bill to be enforced. He asked if there were any discussions within Cabinet about this and how much more capacity the SAPS would require. He also suggested that the Department should consider having a public awareness campaign in order to actively reduce cybercrime rates.

Mr Michalakis also inquired about grey hat hackers – hackers who did not have authority but had good intentions of detecting flaws of a cybersecurity system; he foresaw them being affected by the provisions of the Bill. Has the DoJCD considered this? What is its view on these hackers?

Ms Z Ncitha (ANC; Eastern Cape) welcomed the Bill, expressed that it was long overdue but commended the Department for the progressive move towards combating cybercrime.

Ms Ncitha asked about the role of the Department in enforcing the repercussions of a judgement, made by a court of law, on matters such as the RICA Act. She asked how it would ensure adherence and cooperation of service providers to the judgement. She also asked about capacity for those required to implement and monitor the Bill. How will the Department ensure that the investigators and judicial criminal system would be capacitated in dealing with cybercriminals?

Ms Ncitha felt that the Bill would play a crucial role and would have to be synchronised with the Child Justice Amendment Bill because young people were the ones who were the most savvy about the use of technology. She said that there may have to be public awareness on the criminal capacity of cybercrime.

The Chairperson asked why the South African Reserve Bank (SARB) and the Financial Sector Conduct Authority (FSCA) were exempted from reporting cybercrimes once they become aware of them. She also asked about the impact of the High Court judgement.

Responses
Deputy Minister Jeffery said that the RICA Act provided for the regulation of interception of communications; the cybercrimes Bill did not. Sections of the Act were declared unconstitutional by the High Court; this judgement still had to be confirmed by the Constitutional Court and was thus not yet in effect. Despite this, there was an ongoing process of amending the Act and that the associated Bill had already been brought to Parliament. That Bill had since been withdrawn because the Concourt ordered for additional sections to it.

Deputy Minister Jeffery indicated that the Bill provided for certain specialised investigators being authorised, in terms of a search warrant, to assist the SAPS in conducting cybercrime investigations. This was not because of the speed at which information was moving due to technological advancements.

Deputy Minister Jeffery reckoned that the Bill had set out cybercrimes in a clearer way and the procedures to be followed in searching through the cyberspace, in accordance with the Criminal Procedure Act. He also said that although grey hat hackers may generally have good intentions, they still might also have ulterior motives such as seeking for freelance work from the people and businesses they hack.

Mr Robbertse affirmed that grey hacking must be criminalised otherwise they could still exploit the loopholes they find and seek for ‘bug bounties’, even if they present their actions as noble. He added that the DoJCD found that no foreign country had legalised this form of hacking.

Mr Robbertse indicated that there was currently a structure in place for public awareness campaigns; the Department of Telecommunications and Postal Services had created a cybersecurity website to provide the public with information about the Bill and cybercrime. This Department was also doing roadshows, visiting schools and teaching learners about cyber security and crime.

Mr Robbertse explained that the SARB was a de facto bank, an administrator. Therefore, it would not be in possession of valuable system digital data; hence why it was excluded in the Bill. On the contrary, the Bill would place a statutory obligation on certain businesses such as financial institutions and electronic communication service providers to provide reports to law enforcement agencies when requested to do so; particularly to assist with cybercrime investigations that they were subject to. They would also be obligated to preserve certain information relating to an offense in question.

Deputy Minister Jeffery indicated that the Protection of Personal Information Act (POPIA) was soon to be in effect once the Information Regulator had been established. This Act would protect the information citizens and many online databases who illegally sold information would fall foul of it.

Mr Robbertse indicated that the Judiciary had received a full programme on how to deal with cybercrime matters and how to evaluate virtual evidence. The Justice College was one of the facilities that provided training to prosecutors and the programme had been incorporated into its curriculum since 2018. The NPA also sponsored some prosecutors who enrolled at this institution for postgraduate studies in cybercrime. He reckoned that more of such initiatives would be initiated once the Bill had been passed into law.

The Chairperson thanked the Department for the three briefings, noting that they were quite comprehensive and that the Committee now had a better understanding of the bills. She thanked the Members for their attendance and the committee support staff for their contributions.

The meeting was adjourned.