Committee Programme; Advertisement of Bill

Meeting report

The Chairperson opened the meeting and announced apologies.

The purpose of the meeting today was to consider and adopt the Committee programme. The Committee would also discuss the advertisement of the General Intelligence Laws Amendment Bill (GILAB) and consider and adopt the minutes of their first meeting.

Draft Committee Programme

The Committee staff took Members through the draft programme. The Bill will be advertised for public comment by next week and will be out for comment for two to three weeks.

On 29 November, the SA Security Agency (SSA) and Office of the Chief State Law Advisor would brief the Committee on the Bill.

On 30 November, the Committee will deliberate on the previous day’s briefings.

On 5 December, three entities will provide their input on the Bill.

On 7 December, further entities will provide further input on the Bill.

The Bill will be published for comments during the recess.

When Members return next year, public hearings will commence in the provinces – Gauteng, Western Cape and KZN. The Committee will spend two days in each of the urban provinces. The Committee will decide exactly which areas will host the hearings and the time for each session.

Thereafter, the Committee staff will brief Members on the summary of the above public participation processes.

On 21 February, the Committee will hear the SSA response to the public comments.

Parliament’s Legal Services will brief the Committee further on the public comments, Department response and issues of constitutionality.

The Committee will then begin formally deliberating and considering the Bill, clause-by-clause. A public participation report will also be considered.

It was expected the A-List would be complete by 26 February.

On 27 February, the B-List will be considered.

The deadline was for the Committee to publish its report on the Bill by 1 March 2024.

Discussion

Ms D Kohler-Barnard (DA) asked why the Committee did not have all-day meetings if it was pressed for time. She would take the programme to her party caucus.

Ms D Dlakude (ANC) asked why only three provinces were earmarked for the provincial hearings.

Mr B Hadebe (ANC) was also concerned about the provinces targeted. He noted that other legislation was challenged because public participation was only limited to certain provinces. He said there was much interest in the intricacies of the Bill. He suggested half of the provinces (four or five) be visited, if not all. He would understand if this meant working awkward days and hours but the process should not be rendered futile by opening itself to legal challenges.

Mr G Hendricks (Al Jam-ah) noted that there were plenary sittings in the afternoons that some Members must attend. He also cautioned the Committee given the criticism that public participation was flawed and needed to be reformed. He suggested the Committee consider getting professional surveyors/researchers to capture and summarise the comments expressed at the public hearings accurately. He felt the Committee should set an example for the Seventh Parliament to enhance the quality of the process and not merely tick boxes. He was concerned that very important rural provinces were being omitted from the process. Perhaps this gap can be filled by conducting professional research surveys to gauge the public opinion on clauses of the Bill in the provinces not visited. This would give the Committee an idea of where there was consensus and where not and would be very useful for the clause-by-clause deliberations.

The Chairperson noted the Committee was stretched for time and he did not foresee how all nine provinces can be visited. He asked if Members agreed to the content of the programme but would ask the staff to look at further juggling the dates. Perhaps one more province could be added. He was unsure about the professional surveyors and if there was precedent for that.

Mr D Stubbe (DA) understood the limitations of time but suggested the Committee consider having public hearings over weekends if more provinces needed to be visited and to prevent being legally challenged. Getting things right was important so that the Seventh Parliament did not have to deal with it.

The Chairperson agreed. He said the staff would look at the dates.

Ms Dlakude agreed on public hearings on the weekends. She said the revised programme should be finalised as soon as possible so that it was populated at the Chief Whips Forum for further buy-in. she agreed with the other content of the programme and the only issue to look into in terms of the programme was covering more provinces.

Ms Kohler-Barnard noted that there were regulations for how many provinces should be visited when processing a Section 75 Bill (Bill not affecting the provinces). The Committee cannot visit all nine provinces. The Committee has asked for the Bill for a long time and that it was only submitted now cannot be helped. The Committee must be sure it cannot be legally challenged on this and then take it from there.

Mr Nathi Mjenxane, Parliamentary Legal Advisor, Constitutional and Legal Services Office, said the courts have remarked on public participation in many decisions. Guidance was found in the Lamosa judgement, where Parliament was challenged for not facilitating public involvement effectively, or as it should, or not meeting the constitutional threshold. He said in most cases, where the court found Parliament wanting on public participation, Parliament would have visited all provinces, so visiting all provinces on its own does not meet the constitutional threshold. So visiting all the provinces on its own does not sufficiently meet the constitutional threshold. It is the various actions that Parliament takes to facilitate public involvement in its process that matters, not just the visiting. By way of example, he related to the amendment of the Restitution Act, where the Constitutional Court found Parliament wanting for not going to some of the regions within a province which was the Northern Cape, because of the far-flung areas within the province where people were interested in restitution, but were not consulted because Parliament then went to the urban areas in the Northern Cape. So there are various mechanisms within Parliament’s public participation strategy, which is the guiding document for public participation, to deal with the issue of areas where Parliament cannot practically visit. So where the Committee decides on visiting provinces, the public participation programme would still need to be augmented to reach other areas even within the province visited where the Committee could not go physically.

He advised developing a public participation plan to talk about the various steps that the Committee can take in facilitating public involvement, over and above just visiting the provinces to conduct hearings.

The Chairperson thought this was very clear.

Ms Kohler-Barnard pointed out that she did not hear a clear answer to her question if three provinces are legally sufficient.

Mr Mjenxane responded that the direct answer to that is that the decision of how many provinces to visit is a decision of the Committee. So there is no threshold in law that says a Committee must visit x number of provinces but the Committee must have facilitated involvement to reach everyone in the country. There are various ways of doing that other than public hearings. The decision on which provinces will be visited is up to the Committee but this would be augmented by the public participation plan which will cover the areas where the Committee cannot physically go. The public participation plan will state other mechanisms for the Committee to use to reach as far as possible.

Mr Hadebe asked which people are most likely to be affected and will the three provinces selected most likely cover those affected. He said it would be ideal to visit all the metros, to be on the safe side. 

Mr Mjenxane said the public participation plan would present a proposal for Members to consider, incorporating all ideas raised today such as the suggestion to visit metros. He highlighted the Bill is essentially a security services bill so the key stakeholders that will be affected by this Bill might not necessarily be people living in the villages, but it does not mean that they do not have an interest in the matter. So this is why the public participation plan must be balanced, which looks at all of those considerations.

There are various ways of engaging in public participation, other than just public hearings.

The Chairperson asked if what Mr Mjenxane was putting forward, if somebody takes Parliament to court, might hold water; that a man ploughing in a village might not even be interested [in the Bill]. He said the team should put together a public participation plan.

Mr Mjenxane said the plan will speak to number one the issue of public hearings and other means of consultation that could also be engaged in trying to reach as far as possible in this regard.

The Chairperson asked that the team also look into whether professionals can be brought in to conduct surveys.

Mr Mjenxane answered that it had been done in the past during the process of amendment to section 25 of the Constitution; Parliament did hire private service providers to assist in the process. However, that must be done through the public participation business unit within Parliament, which is the primary unit that does public participation.

On the issue of the provinces, he asked if the Committee would guide the team and make a decision or if this would be done after the plan was presented. This guidance would be important as the plan was developed.

The Committee decided on five provinces but if not, no less than four if there was a problem of time.

The Committee staff added that they would develop a public participation plan in addition to the programme but the decision on the provinces remains a decision of the Committee. The programme can be juggled, weekends can be looked into, two provinces could be covered in a week, etc. He emphasised that the public participation plan must be developed after the Committee decides which provinces to visit, and then the plan would address how this would be executed.

Mr Hendricks accepted the proposal to visit more provinces but disagreed that the Bill was of no interest to villages as if they were not human beings. People who brought about the revolution and participated in the armed struggle came from the villages. The villages cannot be ignored so the Committee must prioritise some of the important villages in the provinces and not just focus on the metros. However, he acknowledged travelling to the villages was difficult and onerous, but the Committee must reach out to them. He took strong exception to Parliament ignoring villages as if they were not human beings.

Mr T Mmutle (ANC) agreed, noting he was uncomfortable with a proposal to go to metros only and ignore other sectors of society. This would be saying the Bill was meant only for those in urban areas, which is untrue. He agreed with the public participation covering other mechanisms for integrating other means of public participation with the hearings to reach other stakeholders in the far corners of the country in all provinces. It would be safe and ensure the Committee touched all corners of the country, insofar as the objective of this exercise is concerned, rather than focus it on metros or reduce it to certain provinces without means of covering others. With the province selected, the Committee should cover urban and rural areas.

The Chairperson asked if the programme could still be adopted today.

Mr Mjenxane said the draft programme before the Committee may be adopted with amendments. The amendments are the updates to be made to the programme with the directives of the Committee.

He clarified that his advice was not that villages must not be consulted. If Members understood him to suggest this, he apologised and withdrew. His advice is that it is practically impossible, given the time constraints or truncated time period within which the Bill must be finalised, to reach all of the villages, towns, and cities of the country through public hearings. However, other available mechanisms and public participation could be engaged to ensure that the Committee reaches as far and wide as possible.

Mr Hadebe proposed visiting five provinces – three metros and two rural provinces and the rest will be attended to using other means of public participation. He suggested Limpopo and the Eastern Cape. This covered three urban provinces and two rural provinces. He highlighted KZN also has rural areas but was considered an urban province.

Ms Kohler-Barnard said the esteemed legal advisor never suggested that rural people are not human. She found that deeply offensive and she was responding on his behalf as he could not respond on his own. The legal advisor said very clearly the major stakeholders who will be involved in the Bill are based in urban areas, which is what has been targeted.

Ms Kohler-Barnard said she had seen many public hearings held in deep rural areas where nobody arrived. The Committee must do its work practically. It should look at the population per province as a logical determinant. She said Members should not be offensive towards colleagues and staff in this matter. She was horrified.

The Chairperson took the point. He asked if Members were fine with the five provinces. He asked if Members could adopt the Committee programme with amendments.

Mr Stubbe agreed to adopt the draft with the amendments.

He highlighted that the Bill would be publicised and that people in all areas could comment on it. Rural areas were not being neglected but he also had experience with public participation in outlying areas, specifically the Northern Cape, where one or two people participated. He advised adhering to the norms and standards and that those not reached in the hearings would be reached in other ways.

The Chairperson said it was clear and the Committee has made its decision.

Ms Dlakude seconded the motion to adopt the draft Committee programme with amendments.

Committee meeting format

The Chairperson asked that Members discuss physical vs virtual meetings when looking at the programme. The Committee would hear inputs from a number of entities which might request closed meetings regarding some issues. If the meeting was closed, a virtual platform would not work. He asked if these closed meetings would be accepted.

Mr Mjenxane said these entities have a right to apply for closed meetings if they will be presenting classified information. It is up to the Committee to decide whether to grant such an application or not. But there are instances he anticipated practically where the entities would have to respond to some of the questions and present classified information before the Committee. They may ask that those meetings be closed for confidentiality and necessary secrecy. But the decision to close or not to close remains that of the Committee.

The Chairperson asked if it could be the case that those entities would not share some information if the meeting is open.

Mr Mjenxane replied that in terms of the law, those entities would be entitled to withhold classified information in an open meeting.

Ms Dlakude said the Committee took an oath not to divulge any information to anyone, which is necessarily deemed to be classified information. So in that case, indeed, as a Committee, it will have to agree to the closing of the meeting because that information cannot be shared for public consumption. But if there is nothing secret or classified about the meeting, the rules of virtual and hybrid platforms, as adopted in the House, as Rules of Parliament, will mean the meeting is open and can be held on a virtual platform. She said the Committee should not close the door for the hybrid and virtual meetings. But if and when there is a request for a closed meeting, indeed, the rules allow for committees to do so.

Mr Stubbe was a bit worried because this is an ad hoc committee. Two Members of this Ad Hoc Committee are not classified as top secret, so they cannot be excluded from the process. His understanding was that if an entity, like SSA, wanted to disclose something to the Committee, they could do it in the Joint Standing Committee on Intelligence (JSCI). The entities will be expected to participate in cleaning up the Bill and getting the best version of it for South Africans through an open process.

The Chairperson said Members must sign confidentiality agreements so they would not be excluded.

Mr Hadebe asked who was eligible to access classified information. Is it by virtue of signing that configuration, that then it grants one access to classified information? He asked if this meant the classified information could not be used anywhere [outside the closed meeting]. What then becomes the value of that information in the quest of dealing with this Bill? How is the information used in a public meeting? The Bill and the Act will ultimately become a public document so everything else that has to do with the construction of this Bill ought to be available for public consumption.

The Chairperson disagreed. If information from SSA, for example, was used to explain why a certain clause was unworkable, that could not be shared with the public. This was his understanding.

Mr Mjenxane said the law-making process must be as open as possible but the Committee will have to deal with applications by entities to share classified information.

Ms Kohler-Barnard said the Members of the JSCI have top-secret security clearance and jumped through “1000 hoops” to get there. The JSCI has a very strict rule that the only people who come into Africa House have top secret security clearance. But now, to say that other Members can access classified information because they had signed a certificate, why didn’t the JSCI Members just sign a certificate instead of having to get clearance? Is there not a level of confidentiality that one has to go through to hear classified information? She did not want a problem in this regard.

The Chairperson said this would be checked but he did not want to discuss who formed part of the Ad Hoc Committee and who did not. His understanding was that it was good enough for Members of the Ad Hoc Committee to sign a certificate to have access to any information.

The Committee staff confirmed that the Ad Hoc Committee was an open committee to deal with legislation but the intelligence itself, which is governed by the legislation, is classified. Information before the Ad Hoc Committee would be open to the public as long as the meeting was open. There are rules and procedures in the Oversight Act as to how classified information is handled. Section Five dealt with secrecy and it was clear what could and could not be done with classified information as Members performed their duties. The work Members of the JSCI did was in terms of the Act so Members could not use the information as part of their JSCI duties elsewhere. On top of that. Members took an oath which was clear. There are mechanisms for dealing with classified information and the necessary arrangements will be made.

He said the process should not be complicated and open to the public. The entities also know they need to provide information that the public could consume. Anything else would be dealt with as and when it arises. None of the rules and laws governing classified information would be suspended.

The Chairperson agreed that it would be handled according to the laws and regulations that cannot be changed.

The Chairperson asked if the Committee agreed to look at both virtual and physical meetings.

Ms Kohler-Barnard said virtual meetings are extremely problematic when dealing with legislation. Working in tandem on various documents was cumbersome online. She suggested the work be done in person unless it was a simple meeting to adopt something.

The Chairperson agreed.

Mr Hendricks said the discretion of the Chairperson to call hybrid meetings should not be discarded noting the time constraints of the holiday period and the campaigning Members would be involved. He urged that this be left to the discretion of the Chairperson based on the circumstances. He noted he dealt with four pieces of legislation through virtual meetings, which worked very well. Depending on the occasion, the Chairperson should have the discretion to stipulate the format/venue of the meeting.

The Chairperson said doing clause-by-clause deliberations might be tricky on the virtual platform but not impossible. He said some items, like the public participation report, could be dealt with in a virtual meeting.

Ms Dlakude said the Committee should not close the door completely on virtual or hybrid meetings.

The Chairperson said the door was definitely not closed.

Ms Kohler-Barnard repeated her earlier question on why the Committee only had half-day meetings.

The Chairperson said the staff would juggle the dates and times. They could come back to suggest evenings or afternoons to the Committee and then Members can decide.

Ms Dlakude asked for the revised programme to be sent back as soon as possible so applications can be made for the Committee to even sit during plenary sittings if there was no voting taking place. The Committee should get the buy-in from the Chief Whips.

Committee minutes dated 2 November 2023

The Chairperson took Members through the minutes.

Mr Hendricks moved for the adoption of the minutes. Mr Stubbe seconded this.

Advertisement of the Bill

The Committee staff said they hoped to have the Bill advertised by next weekend. This would allow an adequate period for comments. It was hoped to end the comment period in mid-January 2024, considering the holiday period.

The Committee needs to provide the staff with guidance in terms of the platforms for advertisements. There were the national and local newspapers, radio, social media and the parliamentary website. There were also cost implications, but the Committee would guide the staff in getting quotations.

The Chairperson said the team should consider the reach of social media. The expense of advertising in the weekend papers and the expense of radio advertisements considering the different languages.

Ms Dlakude supported using social media and the parliamentary website. Radio can be used to get the attention of many in rural areas, using the language that people understand. A mistake Parliament makes is sticking to one official language while there are 11.

She noted that there are teams from Parliament to mobilise communities ahead of a public hearing. She encouraged that this be done to give people a better understanding. 

The Chairperson said some community radio stations allow advertisements for free. He said the staff were familiar with what to do. 

Ms Kohler-Barnard said public service announcements can be used on the radio where the cost is negligible. The national station should have a footprint in every single area and there are stations in every single language. So if it is under the umbrella of public service announcements, the Committee should be able to afford it. She did not think there was free advertising on community stations – they will charge you through the neck because that's their job, but the public service should do and should provide it as a public service. That's what they're there for.

The Chairperson clarified that was why he said “some”.

He said the Committee should not reinvent the wheel as this has been done before.

The meeting was adjourned.