Finalising Critical Infrastructure Protection Act draft regulations & Briefing on Protection of Constitutional Democracy against Terrorist and Related Activities Amendment Bill; with Deputy Minister

Meeting report

Chairperson's Opening Remarks

The Chairperson welcomed the Members to the meeting.. She welcomed the Deputy Minister of Police, Mr Cassel Mathale, and the Civilian Secretariat for the Police Service (CSPS) to the Committee.

The Chairperson took the Committee through the agenda for the meeting, and asked if there were any apologies.

Ms Babalwa Mbengo, Committee Secretary, said they had received an apology from the Minister, Mr Bheki Cele. He had asked to be excused from the meeting because he was attending a Cabinet meeting. Dr P Groenewald (FF+) asked to be excused from the meeting at 11:00 am, as he had to attend to another matter, and there were no further apologies.

Committee matters

The Committee's minutes of 24 August were briefly viewed by the Committee.

Minor corrections were made and the minutes were adopted.

Before the Committee moved over to the next item on the agenda, Mr O Terblanche (DA) asked if they could quickly discuss the planned oversight visit.

The Chairperson said they were consulting on the matter, and she was currently working closely with the House Chairperson, Mr C Frolick (ANC), and she was still awaiting feedback from him. She would bring the proposed agenda to the Committee. They wanted the strategic plan urgently, and the management committee -- the Whip, the Chairperson, and staff -- would be meeting this week. The plans were well underway and waiting for approval for them to be submitted. The exact dates would be communicated to the Committee as soon as possible.

Mr Terblanche pointed out that they had discussed their main priorities last week, and he recalled that there had been mention of a visit to Limpopo. In terms of time and money, he asked whether or not there were not more urgent places to visit.

The Chairperson said that she would raise this matter at the end of all the inputs, before Dr Groenewald left the meeting. The requests to do the joint oversight visits to Gauteng, the Northern Cape and Limpopo had come from the Department of Mineral Resources and Energy (DMRE). She asked if they could discuss this matter after they had finished discussing all the items on the agenda, as she wanted to address more urgent matters while all the Members were present. Then they could deal with the administrative matters afterwards.

The Chairperson invited the Deputy Minister to address the Committee.

Critical Infrastructure Protection Act regulations

Deputy Minister Mathale said that the amendments to the draft Regulations of the Critical Infrastructure Protection Act, 2019 (Act No.8 of 2019) had been accepted by the Committee last week, and the Department agreed with the comments that had been made.

The Chairperson said that she agreed with the Deputy Minister, but added that the Committee had to pass the amendments formally. Therefore, the Regulations with the amendments had to be viewed. She said that the Committee had made recommendations on the amendments last week, and the Committee now had to view the amendments and approve them. It was part of the process, and by law, they had to follow this procedure.

Deputy Minister Mathale asked the Chairperson if Mr Takalani Ramaru, Acting Secretary, CSPS, could take the Committee through the draft Regulations document.

There was a misunderstanding on the whole matter, but eventually, Mr Ramaru flighted through the draft Regulations for the Committee to view and approve for them to be published in the Gazette, and for the Critical Infrastructure Council to start doing its work.

The Chairperson said that the Committee had expressed their concerns and suggested that they request to have an interview with the Critical Infrastructure Council. However, they were unable to start their work without the Regulations, as the vetting of the Members took a long time. The Regulations had been long overdue. She had received several concerns from the Committee, and members of the Critical Infrastructure Council had expressed their frustration at the slow progress.

Report of the Portfolio Committee on Police on Draft Regulations of the Critical Infrastructure Protection Act, 2019

She asked Ms Mbengo to flight the Committee's report on the draft Regulations of the Critical Infrastructure Protection Act, 2019 (Act No.8 of 2019).

The report on the Committee's amendments and recommendations were presented to the Committee for their final approval.

After the report was viewed, the Chairperson asked if the Committee had any final questions or corrections. There were no further comments from the Committee.

Mr Terblanche said that the DA reserved their rights.

Rev K Meshoe (ACDP) reserved his rights, along with Mr H Shembeni (EFF).

The report was adopted.

The Chairperson said they had finally passed the Critical Infrastructure Protection Act Regulations, 2019 (Act No.8 of 2019). She thanked the CSPS for their hard work and overseeing the whole process. She thanked the Deputy Minister for driving the legislative frameworks and amendments, and said they appreciated all the hard work from the Ministry's side. Lastly, she thanked the Members of the Committee for all their hard work.

She said that once the Regulations had been published in the Gazette and approved in the National Assembly, the Regulations would then be passed to the Critical Infrastructure Council.

The Chairperson handed it over to the Deputy Minister to discuss the next Bill.

The Deputy Minister thanked the Chairperson for her leadership in passing the Critical Infrastructure Protection Act. He said he was joined by Mr Ramaru, and the rest of the team, including Brigadier Bert van der Walt.

Mr Ramaru said that Advocate Ulinda Kritzinger would be doing the presentation on his behalf.

The Chairperson noticed that Ms Z Majozi (IFP) had entered the meeting and asked her if she reserved her rights [on the report].

Ms Majozi said she does not reserve her rights but would go through all the documents and get back to the Committee.

The Chairperson also congratulated her on the arrival of her newborn baby and wished her and her family well.

Protection of Constitutional Democracy against Terrorist and Related Activities Amendment Bill [B15-2022]

Adv Kritzinger took the Committee through the introduction of the Protection of Constitutional Democracy against Terrorist and Related Activities Amendment Bill [B15-2022]

(See attached document for all details).

She provided the Committee with some background on the Bill. She said the draft Bill had been submitted to Parliament by the Minister of Police in terms of Joint Rule 159, on 19 July 2022. The Bill had to be dealt with under section 75 of the Constitution. The purpose of the presentation was to introduce the Bill to the Portfolio Committee on Police by providing information on the necessity and importance of the Bill, as well as the contents thereof.

The necessity for promoting the Bill was to promote development in international law. The number of international conventions and protocols aimed at combating terrorism had increased from 12, when the principal Act was adopted, to 19. Each convention or protocol provided for additional offences which had to be enacted in domestic legislation to combat terrorism. She pointed out that the United Nations Security Council adopts, regularly, new resolutions under Chapter VII of the United Nations Charter. These resolutions were binding on the member states and call for measures, including the adoption of legislation to be taken by countries to combat terrorism.

She discussed the importance of the Bill on compliance resulting from oversight. She pointed out that the UN Special Rapporteur on Counter-Terrorism and Human Rights had visited South Africa from 16 to 27 April 2007, upon invitation of government, and that the UN Counter-Terrorism Executive Directorate had paid two compliance visits to South Africa, in 2008 and 2018.

South Africa was a member of the Eastern and Southern African Anti-Money-Laundering Group and the Financial Action Task Force, and they published a report on a mutual assessment of South Africa in October 2021.

The Bill addressed the recommendations and guidance from these oversight structures, especially from the 2018 report of the UN Counter-Terrorism Executive Directorate and the 2021 mutual assessment report of the Eastern and Southern African Anti-Terrorism Group and the Financial Action Task Force.

She highlighted that there had been four convictions in terms of the Act in respect of terrorism-related activities, namely:

The Thulsie twins, who had pleaded guilty to trying to leave South Africa to join the Islamic State in Syria;

Two members of the National Christian Resistance Movement ("Crusaders"), who were plotting the murder of black people as well as overthrowing the government -- Eric Donald Abrahams (55) and Erroll Abrahams (50), and Harry Johannes Knoesen (64), who had led and formed part of the Crusaders organisation;

Henry Emomotimi Okah, a Nigeria citizen, was charged with 13 counts relating to terrorism under the Protection of Constitutional Democracy against Terrorist and Related Activities Act. The charges related to two car bombings detonated successively in Warri, Nigeria, and a further double car bombing in Abuja, Nigeria, killing nine persons in total.

The trial had led to an unsuccessful constitutional challenge to the jurisdictional provisions in the Act. Amendments to the definition of "specified offence" had been proposed in line with the guidance given by the Constitutional Court.

Main proposals to amend Act

The Committee was guided through the main proposals to amend the Act:

• Clause 1 proposes the substitution, deletion, and insertion of certain definitions in section 1 of the Act, repealing the motive requirement in the definition of "terrorist activity" and deleting the exclusion of liberation struggles from the definition of "terrorist activity".
• Clause 2 proposes to amend section 3 of the Act by providing for an offence in respect of entering, departing from, transiting through, or remaining in any country, for purposes of joining or supporting terrorist groups, and an offence to support an entity engaged in terrorist activities.
• Clause 3 proposes the insertion of section 3A in the principal Act, which prohibits any publications with terrorist-related content, as well as a defence.
• Clause 4 proposes the amendment of section 4 of the Act by providing for an offence to facilitate the retention or control of the property on behalf of, or for the benefit of, a specific entity identified by a Resolution of the United Nations Security Council and announced by the Minister of Finance in terms of section 26A(1) of the Financial Intelligence Centre Act, or a notice given by the Director of the Financial Intelligence Centre in terms of section 26A(3) of the Financial Intelligence Centre Act.
• Clause 5 seeks to insert section 4A in the principal Act to provide for an offence in respect of an attempt to leave the Republic for the benefit of, at the direction of, or in association with, a terrorist group.
• Clause 6 seeks to amend section 5 of the Act by extending the offence related to terrorist bombings to private places.
• Clause 7 proposes to amend section 6 of the Act, by inserting additional offences in accordance with international law, in respect of fixed platforms.
• Clause 9 proposes the amendment of section 9 of the Act to provide that it would be an offence to, by any other means, seize or exercise control of an aircraft for the purposes listed in section 9.
• Clause 10 proposes to amend section 10 of the Act by providing for additional offences in accordance with Article 3bis of the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1988, as amended by the Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 2005.
• Clause 12 proposes to amend section 12 of the Act by providing that no duty of secrecy or confidentiality, or any other restriction on the disclosure of information, whether imposed by legislation or arising from the common law or agreement, affects compliance by an accountable institution, supervisory body, or reporting institution as defined in the Financial Intelligence Centre Act, 1998.
• Clause 13 seeks to amend section 13 of the Act by providing for an offence related to using false threats to intimidate the public or divert police resources.
• Clause 14 seeks to simplify the language of section 15 of the principal Act following the Constitutional Court judgment.
• Clause 14 amplifies the jurisdictional issues of the Act, and provides where a warrant in respect of offences in terms of the Act may be obtained under the Criminal Procedure Act, 1977. The clause further provides that persons who were not citizens of the Republic, not ordinarily resident in the Republic, or stateless must be advised of their rights to consular assistance from their State of ordinary residence or citizenship. The clause also provides that the relevant government must be informed of the arrest of such a person for a Convention Offence.
• Clause 15 seeks to amend section 16 of the Act and provides that the prosecution for an offence under section 13 may be authorised by the relevant Director of Public Prosecutions.
• Clause 17 seeks to align the sentencing, as laid down in section 18 of the principal Act, with the severity of the offence, for example, the financing of terrorism. It also provides for sentences in respect of the offences listed in sections 3A(3) and (4), 4A, and 24B(13).
• Clause 18 expands on the ambit of, and what may be contained in, a freezing order, the making of ancillary orders, the publication of orders, the appointment of a curator ad litem, and interim orders.
• Clause 19 proposes to amend section 24 of the Act by providing for the inclusion of premises that may be cordoned off and searched by a warrant which a judge may issue.
• Clause 20 proposes the insertion of section 24B in the Act, providing that a member of the Directorate may apply to a competent court for an order to disable access to the internet or social media site with unlawful terrorism-related content. The clause also proposes the insertion of section 24A in the Act, providing for the application for a decryption direction by an officer of the Directorate in terms of section 21 of the Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002.
• Clause 21 proposes the repeal of sections 25 and 26 of the Act. It proposed in the Schedule that the publication of Resolutions of the United Nations Security Council relating to entities linked to terrorism by notice in the Gazette should be performed by the Minister of Finance in terms of the Financial Intelligence Centre Act.

Adv Kritzinger pointed out that the Bill proposes to amend the Schedule to the Act, by amending several related Acts:

• Extradition Act, 1962: Aligning the wording of the Act with the amended wording about the respective terrorist offences to which the Extradition Act would apply.
• Criminal Procedure Act, 1977: To provide that obtaining a warrant for search and seizure or arrest was not limited only to the jurisdiction where the offence had been committed and inserting the relevant offences in terms of the Act concerning bail applications.
• Intimidation Act, 1982: To delete section 1(1)(b) of the Act in compliance with the Moyo Constitutional Court judgment and to propose the deletion of section 1A of the following recommendation of the South African Law Reform Commission.
• Refugee Act, 1998: To provide that a person convicted of terrorist-related offences may not enter the Republic as a refugee.
• Nuclear Energy Act, 1999: Updating one section in the Act as a result of an amendment to an existing Convention.
• Financial Intelligence Centre Act, 1998: To delete the exclusion of listings by the United Nations Security Council from other Security Council Resolutions which may be published by the Minister of Finance for notification and amendment through notices by the Director of the Financial Intelligence Centre. The effect of the amendment was also reflected in the Bill, where reference is made to such listings.

She said the draft Bill was published in the Gazette for public comments. Only a few public comments had been received, and they contained mostly constructive proposals, e.g. an exemption relating to possessing publications with terrorism-related contents, in the case of a journalist or for study purposes.

She emphasised that The Protection of Constitutional Democracy against Terrorist and Related Activities Amendment Bill, 2022, was aimed at:

• Aligning the Act with the latest international law requirements;
• Establishing the crimes as defined in subsequent international instruments; and
• Responding to the issues raised in respect of the Act following the respective compliance visits by international oversight structures.

The Bill was there to ensure that South Africa complied with international standards and requirements regarding combating terrorist activities. She said such compliance was necessary regarding South Africa's standing and financial ratings globally. The Act and the Bill would ensure that South Africa was in a position to act decisively against terrorist attacks or support terrorist activities.

(The Chairperson was not available on the Zoom platform after the presentation. Mr Seabi asked the Committee to continue onto the next presentation on the summary of submissions from the public.)

Public submissions on Protection of Constitutional Democracy against Terrorist and Related Activities Amendment Bill

Ms Nicolette van Zyl-Gous, Committee Researcher, took the Committee through the public submissions on the Protection of Constitutional Democracy against Terrorist and Related Activities Amendment Bill [B15-2022].

(See attached document for details).

She said the call for public submissions opened on 12 August and closed on 19 August. The call for submissions had been published in national and regional newspapers in all official languages. The Portfolio Committee on Police had received five public submissions on the Bill. These were from:

1. Afriforum (Hurter Spies Attorneys submitted on behalf of Afriforum);
2. The Banking Association South Africa (BASA)
3. The International Committee of the Red Cross (ICRC)
4. The Sussex Terrorism and Extremism Research Network (STERN)
5. Mr C Nel

She took the Committee through the comments in the public submissions. She briefly mentioned the Banking Association of South Africa's comments, which included:

• The definition of 'property,' in that the definition prior to its proposed amendment was already all-encompassing and would include any digital representation of perceived value, including cryptocurrency.
• The definition of 'electronic communications service provider' should clarify who was deemed to be licensed.
• The definition of 'entity' should be clarified, and its use throughout the Bill
• In clause 3, the insertion of prohibition of any publications with terrorist-related content, it was proposed that certain sections be amended.
• In terms of Clause 12, it created a hierarchy in legislation.

She highlighted STERN's comments, which were:

• The definition of 'terrorist activity' should exclude 'motive,' as it was difficult to prove and international instruments generally did not require a special terrorist motive.

• In terms of Clause 2, terrorist training should be an offence, not only receiving such training.
• In clause 3, the insertion of prohibition of any publications with terrorist-related content, it was proposed to adjust the language of legitimate defence to broaden it to "exercising a profession in the public interest."

She said that the International Committee of the Red Cross's submission included:

• The retention of Section 1(4) of the principal Act, in terms of armed conflict that should not be considered terrorism.
• The proposed inclusion of an international humanitarian law saving clause to separate the law applicable to the conduct that occurs in peacetime from the conduct that occurs during armed conflict.
• In terms of Clause 3, the insertion of prohibition of any publications with terrorist-related content that might unintentionally criminalise humanitarian action.

Finally, she guided the Committee through AfriForum's remarks, highlighting that they were the only submission against the Bill in its current form. According to Afriforum:

• The expansion of the definition of "property" compounded the problem.
• In terms of Clause 3, the insertion of prohibition of any publications with terrorist-related content violated rights to freedom of expression, association and conscience.
• Clause 18 overextended the power of police officials, and was likely to lead to complex litigation.
• Clause 20 had potential to abuse the Regulation of Interception of Communication Act (RICA) and created an unjustifiable violation of the right to privacy.
• Clause 21, in the repeal of sections 25 and 26 of the principal Act, was an unjustifiable violation of the separation of powers doctrine.

Discussion

Mr Seabi asked whether or not Mr Ramaru or the Deputy Minister had any additions to their presentation.

 They said that the presentation covered everything.

The Committee commenced with their questions.

Mr A Whitfield (DA) said that the Bill presented to the Committee seemed to appear out of nowhere. It was never part of the Committee's priority bills on their agenda during this year. He welcomed the fact that the Committee had been dedicating much of its time and efforts to legislation, especially during this time in Parliament. He pointed out that it was unusual for a Bill to be introduced and for a Committee to have completed all the work around it within just two months, especially given that the Bill was complex and technical in nature. The Bill had been introduced only on 19 July, and the intention was to conclude it by 30 September. He said that the timeline was unrealistic, given some of the obvious risks ahead, considering the complex nature of the Bill. He pointed out that they were doing it over a virtual platform also complicated matters, as they would not be able to focus their full attention on the Bill, due to its technical nature.

He asked whether it was normal to allow the public only seven days to comment on a Bill, especially a Bill of this nature. In his opinion, he thought the Bill was being rushed. The inputs from the different stakeholders needed to be considered carefully before the Bill is passed.

(The Chairperson re-entered the Zoom platform.)

The Chairperson said the Committee had been placing a lot of pressure on the Civilian Secretariat and the Ministry to bring the SAPS Amendment Bill and the Independent Police Investigative Directorate (IPID) Amendment Bill to the Committee. Because of the delays in these Bills, they thought it would be good to complete this Amendment Bill in the meantime. They had asked the House Chairperson and the Speaker to continue with the Bill, and they had granted the Committee permission to do so. She acknowledged that the Bill was not presented as a priority Bill. She could delay this Bill and wait for the SAPS Amendment Bill and the IPID Amendment Bill. However, she did not know how long that was going to take. They have used their authority as an oversight body responsible for legislation to pressure the Civilian Secretariat and the Ministry to ensure that the Bills get passed, and that they follow the correct procedures.

She said that the legislation on counter-terrorism had been raised to them by the Cabinet, not only by the Minister but also by the Peace and Stability Cluster. She did not wish to rush the implementation of the Bill, but urged the Committee to consider it.

She said there had been a Cabinet statement on 22 June on the Bill and that when it was brought to her attention that there was a sense of urgency around passing the Bill, she thought it correct to put it on the agenda. Cabinet had gone through an extensive presentation and discussions, and approved the submission. The Bill had gone through extensive public consultations after Cabinet approved it in May 2021. She pointed out that the amendments sought to align South Africa's domestic instruments of fighting terrorism with the global measures that had been put in place. They had addressed the clauses thought to be unconstitutional by the Constitutional Court. She pointed out several constitutional judgments against the Department and deemed it important to address these issues.

She highlighted that as a signatory to the UN Security Council, South Africa was duty-bound to domesticate international law and the instruments put in place to combat global terrorism.

Cabinet had made certain decisions during the recess period, and they had taken up all the matters they had been unable to deal with, including the strategic plan. She would bring all the outstanding matters to the Committee when they discussed the strategic plan.

She asked the Committee for feedback on the process they wished to follow on this Bill, as Mr Whitfield had raised his concern.

Mr Terblanche said it was an important piece of legislation and would definitely impact South Africa's role as an international player. It would have an impact on how people viewed South Africa, as well as their economy. He was surprised and more concerned about the speed at which the Bill was being processed. He did not want to be affiliated with a piece of legislation that had not had the Committee's full attention, and that they had not engaged with their full attention. He pointed out that the period for public comments had been too short for any meaningful feedback to be made, which would not do the legislation justice.

Dr Groenewald said that he hoped they would have an opportunity to engage with the different stakeholders, the Bank Association and AfriForum, to allow them to present their views on the Bill to the Committee. This would allow the Committee time to engage with the proposals and to consider all the inputs.

Mr Seabi said there were no ill intentions in bringing the Bill to the Committee for them to process. It was their job as a Committee to pass legislation. He suggested that the Chairperson consider the Committee's comments when they process the Bill.

Rev Meshoe raised the concern that the public had only seven days to engage with the Bill. It was an important Bill with serious repercussions, and they suggested adding another week to allow for public comments.

Ms Majozi asked if they could open the Bill up to the public again and could consider a new timeframe for all the steps, and for them to be able to come back and discuss the next steps.

The Chairperson thanked the Committee for their input and said that the Committee had a history of working together and not disagreeing on matters of process. She would like a matter of consensus, and it was always better to take a step back and reconsider certain matters. She agreed with the Committee, and would indicate to the House Chairperson and the Whips' Offices that the Members had requested more time for public comments.

On the timeframe, she said that the programme had been submitted to the Members and that they would add the additional information to the Committee programme. They would highlight the new programme and timeframe at the next Committee meeting to ensure that they all agreed with one another.

She emphasised that there was no malicious intent or political agenda behind the whole process of the Bill, and that it was a technical and important Bill. She would not like to make any mistakes, and would rather consider everybody's input. When they go to the National Assembly, she would like some agreement among all the Members. She would ask the technical team to look at the dates and timeframes again, which would be presented to the Whip at the Management Meeting.

She received and accepted an apology from Ms Majozi, who had to attend the Chief Whips Forum.

She observed that many political parties were present in the meeting and that everyone agreed they needed more time to allow for public deliberation. She asked the Members if they agreed with the proposed process, and they all agreed.

Mr Groenewald said that he was not asking for more time for public deliberations, but rather that when the comments from the public were presented before the Committee, they had enough time to thoroughly engage with the inputs and an opportunity to engage with the questions.

Mr Terblanche emphasised the importance of the Bill but he had no further questions.

Mr Whitfield had no further questions, and appreciated the Chairperson's kind consideration. He asked if the legislation had been brought forward due to the imminent threat of grey-listing, and if that had been part of the motivation to speed up the process. If that was the case, they would attend to the matter urgently.

The Chairperson said that she had consulted with all the political parties in the Committee and asked if she could call them all to come together to discuss the matter in more detail, as there were various concerns they had to consider. All the information would be communicated to them. She asked for the Committee's approval, and all of the Members approved of the new additions to the process.

The Chairperson allowed Mr Ramaru and the Deputy Minister an opportunity to address the Committee for final comments.

Mr Ramaru and the Deputy Minister said they had taken note of the considerations and would be available when the Committee required their involvement.

The Chairperson took the opportunity to congratulate Ms Van Zyl-Gous on her promotion to the position of Committee content advisor.

All the Members congratulated her and expressed their appreciation for all her hard work and dedication to the Committee.

The Chairperson thanked the Deputy Minister, Mr Ramaru, the staff, and the Committee for their inputs.

The meeting was adjourned.