Interception & Monitoring Bill; Constitution of the Republic of South Africa Amendment Bill 2001, Constitution of the Republic o

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
22 August 2001
CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA AMENDMENT BILL 2001, CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA SECOND AMENDMENT BILL 2001; INTERNATIONAL CRIMINAL COURT BILL; INTERCEPTION AND MONITORING BILL: BRIEFING

Chairperson: Adv J de Lange (ANC)

Documents handed out:
Constitution of the Republic of South Africa Amendment Bill, 2001
Constitution of the Republic of South Africa Second Amendment Bill, 2001
Memorandum for Amendment Bill
Memorandum for Second Amendment Bill
International Criminal Court Bill [B42-2001]
Interception and Monitoring Bill [B50-2001]
Interception and Monitoring Bill - 16 August 2001 (certified)

SUMMARY
The drafters and representatives of the National Treasury briefed the Committee on the Constitution of the Republic Of South Africa Amendment Bill, 2001, Constitution of the Republic of South Africa Second Amendment Bill, 2001; International Criminal Court Bill; Interception and Monitoring Bill.

The International Criminal Court Bill creates extra-territorial jurisdiction and also allows the International Criminal Court to sit within the Republic should the need arise. The Interception and Monitoring Bill incorporates the same principles of the 1993 Interception and Monitoring Prohibion Act but widens its scope of application by including cellular phones. The Bill provides for monitoring without a direction from a judge in situations where there is consent, where the monitor is a party to the conversation and for the purposes of keeping a business record. Service providers are obliged to obtain ID information and maintain records of persons, bodies or organisation entering into contracts but no obligation exists to obtain such information from purchasers of pre-paid phone cards. The inclusion of "compelling national interest" as a grounds for obtaining a direction would appear to be controversial.

MINUTES
Adv de Lange noted that the cut-off date for submissions on the amendment bills to the Constitution was the end of August 2001. Thus the present meeting would constitute no more than a briefing. Adv de Lange summarised the issues saying that the two Bills dealt with three main areas. These were the Justice, Finance and Local Government and as a result once formal discussions of these Bills begin, the appropriate Committees of Parliament would be invited to attend the meetings.

Constitution of the Republic of South Africa Amendment Bill, 2001
Mr de Lange, a drafter from the Department of Justice, noted that under the old dispensation the Chief Justice was the head of the Supreme Court of Appeal which was the highest court in the land. However under the new dispensation the Constitutional Court is the court of the highest instance in constitutional matters. The Chief Justice is not a member of this court, but is still head of the court of the highest instance in all non-constitutional matters. As a result of this new structure, much confusion has been created as to which court represents the court of the highest instance. In terms of this amendment the President of the Constitutional Court will become the Chief Justice of South Africa. A number of consequential amendments will also have to be made: - the Deputy President of the Constitutional Court will become the Deputy Chief Justice,
- the Chief Justice (of the Supreme Court of Appeal) will become the President of the Supreme Court of Appeal
- the Deputy Chief Justice will become the Deputy President of the Supreme Court of Appeal.

The second issue the Bill addresses is the term of office of Constitutional Court judges as the term of service had started to create a problem. The example given was that of the learned Judge Chaskalson who would have to retire this coming November. Mr de Lange said that the retirement of this Constitutional Court judge would be a pity since he has contributed so much to South African constitutional jurisprudence. This was aggravated by the fact that the Constitutional Court was only now beginning to develop a body of constitutional jurisprudence. Section 176 was to be amended to enable Parliament to regulate the term of office and retirement age of Constitutional Court Judges by means on an Act of Parliament. At present Section 176 provides that Constitutional Court judges hold office for a non-renewable term of twelve years, and must retire at the age of 70, whereas other judges hold office until they are discharged from active service in terms of an Act of Parliament.

Mr de Lange said that another of the amendments affected the President’s executive powers. The first Constitutional Amendment Bill amended Section 93 to make it look more like Section 91. In terms of Section 91(3) of the Constitution, the President may select any number of Ministers from among the members of the National Assembly and may select no more than two Ministers from outside the Assembly. However, in terms of Section 93, Deputy Ministers may only be appointed from among the members of the National Assembly. The effect of the requirement in Section 93 relating to the appointment of Deputy Ministers is that if the President appoints a Deputy Minister from a party that has very few members of Parliament, then that party’s effective participation in the ordinary business of Parliament might be severely compromised. Clause 5 of the Bill is consequently aimed at bringing Section 93 into line with Section 91(3) by making provision for the appointment of two Deputy Ministers from outside National Assembly.

Section 93 is amended to mirror Section 91 and thus reads that ‘the President may select any number of Ministers from the National Assembly’. Preempting comment by the Committee, Mr de Lange assured them that the words ‘may appoint any number’ made no real change to the application of the section and these words were included only to make Section 93 mirror Section 91. In terms of the amendment, the President will be able to appoint any number of Deputy Ministers from among the members of the National Assembly, and no more than two from outside the Assembly.

Mr de Lange said that the amendments dealing with local government were of primarily financial importance. At this point Mr de Lange handed the floor over to a Mr I Momoniat from National Treasury.

Mr Momoniat said what the local government amendments sought to accomplish was to improve financial governance through the promotion of transparency. What they were attempting to do is empower provinces by enabling them to borrow money at a cheaper rate and at a lesser cost.

Mr Momoniat said that they had identified a number of problems with Chapter 13 of the Constitution. These problems related to municipal borrowing of money. Mr Momoniat said that Clause 10 of the Bill would enable a municipality to borrow money at a cheaper rate. Clause 10 of the Bill seeks to amend Section 156 of the Constitution, to allow a municipality to bind future municipalities. This situation would be needed when borrowing money for capital as when one borrows to provide capital, a long-term loan makes sense.

Clause 9 would amend Section 155 of the Constitution by adding a subclause (8). Although the Constitution had saving mechanisms such as Section 139, which provided for intervention, some municipalities still defaulted on obligations. If defaults like this were tolerated then future money lending by the Government would be greatly jeopardised. This position was further aggravated by the fact that only a few institutions had the capacity and resources to lend money to the Government. The amendment tries to give money lenders a last resort to try and recover their money by approaching a High Court and asking for the declaration of a state of emergency.

Mr Momoniat noted that these problems were brought to light during the deliberations on the Public Finance Management Act and on the Municipal Finance Management Act.

Discussion: local government amendments
Ms S Camerer (NNP) asked if Mr Momoniat believed that the Municipal Finance Management Bill would be found to be unconstitutional if the amendments were not brought about.

Mr Momoniat answered that only certain sections of that Bill would be found to be unconstitutional if the amendments did not happen. He added that the amendments were necessary as there was no way to get around the potentially unconstitutional clauses.

Mr P F Smith (IFP) said he did not understand the need to specifically bind future municipalities. Surely the normal principles of contract would apply and the municipality would be held to any agreement entered into by the previous municipality.

Mr Momoniat replied that there has been legal opinion to suggest that one municipality could not bind successive municipalities. The problem arises when money lenders increase the amount of interest payable on the loan to compensate for the added risk. By adding this mechanism for money lenders to retrieve their money, money lenders no longer associate a higher risk with municipal loans and the interest rates go down.

Mr Khala (National Treasury) explained that there was a blurring with ordinary contract law. He said that in other countries, future revenue streams are committed as security for large loans. Money lenders then calculate that if a municipality maintains its rates at a certain level, then it will be able to finance the loan. A problem arises in that the determination of rates is part of the budgetary process. Often new municipalities come into power on the strength that they have promised lower rates. Then when they come into power they find that rates have to be maintained at a high level to finance a loan taken out by a previous municipality. Looked at from this angle one can see that the taking out of a large loan can easily constitute a fettering of a constitutional discretion. In terms of established constitutional law and administrative law principles it is a given that discretion such as this cannot be limited or fettered in any way. Then in this light it is easy to see that it is not a given that one municipality binds a future one to any agreement.

Mr Smith said he could appreciate the inclusion of Clause 8(a) but failed to see the need for subclause (b) as Section 139 already covered this situation.

Mr Momoniat answered that in the past, Section 139 has not worked and thus offered no comfort to money lending institutions. The unworkable nature of this section was one reason why Section 139 was being amended. The two sections also operate very differently. Section 155(8) is more readily available to the private institution as it is judicially triggered, while Sections 100 and 139 are politically triggered. Also Sections 100 and 139 address governance issues while a Section 155 intervention is intended for financial issues. Mr Momoniat said that Section 155(8)(b) was dealt with in the Municipal Funds Management Act, in that it was implemented through Chapter 11 of that Act. Section 155(8)(a) would have to be dealt with by another piece of legislation.

Adv de Lange interjected here and asked where this legislation was. He said that a constitutional amendment would not be possible without a detailed description of what the amendment envisages. This ‘other’ piece of legislation would thus be necessary before any real consideration of this amendment could take place. Adv de Lange commented that an incredible amount of work still needed to be done.

Adv de Lange noted that the rationale for the amendments is to help defaulters. However in terms of Clause 8(b) a creditor can effectively declare a state of emergency and bring a municipality to a standstill. This disturbed him and he had yet to see how the section actually helped defaulters.

Mr Momoniat conceded saying that he too was worried. He said that they were presently considering this fact and would advise the Committee on possible solutions. The present solution was to impose fairly high requirements that would have to be met before a state of emergency could be called.

Adv de Lange said that he would like to see examples of other countries where creditors had such power over the government, if in fact there were any.

Discussion: judiciary amendments
Clause 15 of the amended Section 176 of the Constitution, deleting the subclause stating that Constitutional Court judges were appointed for a non-renewable term of twelve years and requiring judges to retire once they reached the age of 70. Mr Mzizi (IFP) asked what type of message the Government was sending by including this provision.

Mr de Lange said that they were unhappy with the procedure and sought to take out the twelve year term of service clause. The present intention was to change it to at least fifteen years with a proviso. The proviso would provide that if after reaching the age of 70, if a judge has not yet served a term of fifteen years, he or she may stay in active service until they have completed a fifteen year term of service. The rationale behind this proviso is that the requirement for a full pension is a fifteen year period of service. He pointed that some judges are appointed at a very young age and in light of this, they felt that judges should be allowed to serve longer if they so wished.

Mr J Smith said that the jump from seven years of service in the Interim Constitution to the proposed fifteen year term was a huge leap. He reminded the Committee that the twelve year non-renewable term of service was there for a number of very important reasons.

Mr de Lange said that the amendment would also provide that the term of service of Constitutional Court judges is dealt with in the same way as that of other judges - in terms of the Judicial Remuneration and Basic Conditions of Employment Act.

Adv de Lange said that the subject should be dealt with as a matter of principle and that no reference should be made to individual judges. Adv de Lange was referring to a specific judge who had said the matter had become too personalized. He also asked why the maximum term of office was not merely extended instead of taking action as drastic as what had been opted for.

Mr de Lange said that the matter was a complicated one. That matters such as whether a specific judge was of sound mind and health would have to be determined. These matters would be elaborated on by Parliament. The matter boiled down to the fact that they would have to decide what principles relating to Constitutional Court judges they wanted to entrench in the Constitution.

Constitution of the Republic of South Africa Second Amendment Bill, 2001
This Bill was dealt with exclusively by National Treasury as it had only financial implications. Mr Momoniat said that this Bill included fifteen amendments which related to practical matters that have arisen under existing constitutional provisions. These amendments are not urgent but are needed for sensible management of legislation.

Changes were identified under three main headings. These amendments would change the position relating to intervention, would bring about certain policy driven changes and would also result in a number of technical changes.

Intergovernmental Relations: Intervention
Mr Momoniat told the Committee that there were three types of changes to Sections 100 and 139. Presently Section 100 empowers the national executive to intervene in a province if the province fails to fulfil an executive obligation imposed on the province in terms of legislation or the Constitution. A similar provision is found in Section 139 which provides for a province to intervene in a municipality if the municipality fails to fulfil an executive obligation imposed in terms of legislation or the Constitution. The Constitution as it stands does not provide for direct intervention in a municipality by the national executive but instead reserves this power to the province.

Mr Momoniat said that the regime created by Sections 100 and 139 where national government may intervene in a defaulting province, and only a province may intervene in a defaulting municipality, is out of line with the other provisions of the Constitution which depicts government as three distinctive, inter-dependent and inter-related spheres. This principle applies to the extent that the constitutional relationships between the three spheres are generally direct and not hierarchical. In this light Sections 100 and 139 are anomalies that should be corrected by extending the power to intervene in municipalities to the national government as well.

Mr Momoniat explained another reason these sections should be corrected is that provinces have very little capacity in some functional areas, such as the supply of water and electricity. If a municipality defaults on its obligations in this area, there is very little a province can do as an intervention apart from facilitating national institutions to assume the responsibility.

Through the amendments, Sections 100(2) and 139(2) are improved in that greater discretion is given to the National Council of Provinces (NCOP) as it is given a veto rather than an approval power. The amendment would also remove the power of national Ministers to stop provincial intervention

The amendment extends intervention over a municipality to instances where a municipality fails to fulfil national obligations rather than merely executive obligations. National Government will also be given executive power concurrent to that of provinces to intervene in local government. Mr Momoniat said that the above changes would necessitate consequential changes such as that to Section 159(3).

Mr Momoniat said that the NCOP would have a more discretionary role in relation to the review of an intervention. This is in contrast to the present position where the NCOP has 30 days to approve the intervention.

Mr Momoniat explained that the amendments were needed as the Constitution could not accommodate this procedure in any other way. He was referring Section 155(8) of the Constitution which also provided for intervention. He said that there were differences between the two forms of interventions that made it necessary to amend the relevant sections rather than make do with Section 155(8).

He explained that while Sections 100 and 139 were largely self-implementing, Section 155(8) required legislation. Chapter 11 of the Municipal Funds Management Bill implements Section 155(8). Chapter 11 is mandatory while Sections 100 and 139 were discretionary. Sections 100 and 139 were triggered politically while Chapter 11 would have to be triggered judicially.

Technical Changes
The rest of the Second Constitutional Bill contained technical and consequential amendments. However these amendments were not completely devoid of policy considerations as policy always crept into the matter. In terms of what is intended, the Financial and Fiscal Commission (FFC) would be requested to reduce its size. The new position would provide for two representatives for the nine provinces. The problem lies in how the nine provinces will choose these two representatives.

Another motive for these technical changes is the clarification of the technical process for dealing with Budget legislation. Section 73(2) establishes the principle that only the Minister of Finance may introduce draft legislation relating to national financial matters, or money Bills, in the Assembly. The Bill proposes that this principle be extended to all legislation emanating from the provisions of Chapter 13 of the Constitution, except when that legislation:
- relates to the financial administration of Parliament or the provincial legislatures;
- deals with the remuneration of persons holding public office mentioned in Section 219, or
regulates rates on property in terms if Section 229(2)(b).

Mr Momoniat said that Clause 2 of this Bill sought to prevent the splitting of Chapter 13 legislation. In terms of the present position, draft financial legislation has to be split up into Section 75 and 76 Bills. The amendment seeks to prevent this splitting where some provisions of the legislation affect the provinces and others do not. The amendment proposes that in the future a Bill envisaged in Chapter 13 of the Constitution be dealt with in the parliamentary proceedings in terms of Section 76(1) if it contains a provision affecting the financial interests of the provincial sphere of government.

Mr Momoniat said that what they tried to provide for here is a situation where only specific clauses which affected provincial financial interests would go the Section 76(1) route. The rest of the provisions which had no impact on that area would just undergo the usual processes.

Adv de Lange interjected saying that he felt the Bills had been badly drafted. He was referring to the way in which a large number of amendments had been lumped into one Bill. These different amendments dealt with a wide range of differing concepts. He said that if a problem was encountered with one of the clauses or amendments then the passing of the whole Bill would be hampered. Instead each distinct area or concept should be self-contained in its own Bill.

Adv de Lange commented that there needed to be more public relations work done in relation to these Bills. Adv de Lange noted that few submissions had been received on these Constitutional Amendments Bills. He made reference to bodies which had specifically asked for these amendments but failed to make submissions. He complained that the meetings were poorly attended by parties who claimed to be interested in the issues.

Adv de Lange asked if legislation existed for the implementation of these new intervention provisions. He asked specifically whether a province would have a right to first intervention.

Mr Momoniat said that the intervention sections had been included at the Bill very late and as a result he had had little time to research the matter. However he was of the opinion that no such legislation existed. Mr Momoniat continued that the provision here was very problematic. In the past Section 100 has been imposed in four provinces. It had been found that unless there is cooperation, intervention is hard if not impossible.

Mr Momoniat made an example of Johannesburg, saying that when it was in trouble the National Government went in first as the Provincial Administration refused to acknowledge that there was a problem. Here it can be seen that if the declaration of a state of emergency in the High Court is to be averted, then national intervention must be easier, especially since these situations invariably involve enormous sums of money.

Ms Camerer asked if representation of each province in the FFC had been taken into account and through which mechanism the two people would be chosen.

Mr Momoniat said that the FFC was an advisory body composed of representatives, who once chosen, did not act for any particular sphere of government. In addition to this, in the recent past the FFC system has become unruly with most provinces not even having representatives. Mr Momoniat said reduction was only logical and that the problem was now how these representatives would be chosen.

Adv de Lange said that the President was the ‘mechanism’ through which these people would be chosen.

In reply to Mr Smith asking if the lack of interest in the FFC could be attributed to the fact that its recommendations did not go very far, Mr Momoniat said that the FFC was indeed only an advisory body, but their recommendations were taken seriously and in the past had in fact greatly influenced the formation of policy.

Mr Momoniat summarised saying that the Amendments in the Second Constitutional Amendment Bill improved governance, ensured a comprehensive budget process, strengthens the NCOP with respect to Chapter 13 legislation, rationalised intervention mechanisms, took away the power of a Minister of Provincial & Local Government to stop provincial intervention, strengthened municipal borrowing powers and closed loopholes in relation to money Bills.

International Criminal Court Bill
Prof Rwelamira, consultant for the Department, stated that the Bill was a landmark of its kind because it allowed for extra-territorial jurisdiction.

Mr Mzizi (ANC) enquired whether in terms of Clause 5 of the Bill, the seat of the Court would be within the jurisdiction or elsewhere and whether Clause 10, regarding the proceedings before a competent court, were also in compliance with the South African system.

Prof Rwelamira replied that regarding the seat, the Rome Statute provided that the seat of the court would be situated at the Hague in the Netherlands but that there might be instances because of the complexity of a situation when the court would have to be moved. As the South African Constitution does not provide for this it was felt that the Bill should make provision for it.

He said that Clause 10 caters for the situation where a prosecutor would request the arrest of a perpetrator without which he may escape. The problem encountered is that this may take a long time if the Court has to be involved and Clause 10 provides a solution.

The Chair was concerned by the meagreness of the Preamble. He asked, in terms of Clause 2, how could the Minister be given the power to amend the schedule when that should be Parliament’s duty. In terms of Clause 4(1) it was felt that the individual crimes should be listed rather than merely referred to.

Regarding Clause 2, it was felt that it was a drafting question that may require further consideration. The Rome Statute provided for a review mechanism after seven years during which further crimes could be added. The definition of "aggression" had not yet been determined and in addition, a number of minor amendments could be made. It was thought that Clause 2(2) would alleviate the problem of having to pass each of these amendments through Parliament by giving the Minister the power to amend the Schedule.

The Chair stated that the power to amend could not be delegated to the Minister and therefore Clause 2(2) was not necessary.

Prof Rwelamira continued that that since the Rome Statute was being attached to the Bill there would be no need to incorporate the offences other than by reference.

Adv M Masutha (ANC) asked if amendments where made to the Rome Statute, did Parliament also have to make an amendment before it became law in South Africa.

Prof Rwelamira replied that there were two levels from which to look at amendment. Firstly, amendment in terms of Article 121 which was a general amendment clause relating to how South Africa as a state would be bound. Article 121 also includes a reservation that allows for a State to withdraw if it does not agree to the reservation. The second consideration is that in terms of s231 of the South African Constitution, an international convention cannot become part of domestic law until it is passed by Parliament.

Ms F Chohan-Kota (ANC) wanted to know how Clause 5, regarding the seat of the Parliament, was being applied in other countries.

Prof Rwelamira replied that other approaches had been looked at as well as the Constitution and it was found that since the Constitution did not make provision for a foreign court to sit within the Republic, Clause 5 was necessary to provide for this situation.

Interception and Monitoring Bill
Mr Labuscagne, Mr Jacobs and Mr Van Wyk (Department of Justice) spoke on the Interception and Monitoring Bill. The new Bill incorporates all the same principles of the 1993 Interception and Monitoring Prohibition Act but the scope has been extended to include new forms of communication and there was therefore a need to look at the definitions and also consider the effect of cellphones.

Mr Labuschagne explained that since the Law Commission had recommended various amendments to the 1993 Act, it was felt necessary to repeal the old Act and enact a new one. The Bill does not grant any new power as far as monitoring and interception is concerned. Clause 2 places a general prohibition on communication, however there were exceptions. Clause 2(2) allows for monitoring and interception if there is consent, if the monitor is a party to the conversation, for the purposes of keeping a business record or where a judge has issued a direction. The definition of "judge" had been amended so that only those who are not serving may be approached. Clause 1 has been altered to widen its application by adding other offences.

The Chair enquired about the meaning of "central monitoring centres".

Mr Labuschagne answered that if a service provider recorded any communication, there was no obligation on him to report this. A central monitoring centre was a place where the signals could be sent in order to be recorded.

The Chair stated that as far as the equipment to monitor was concerned, the cost of the call being relayed from the service provider was being borne by the State.

Mr Labuschagne said that the purpose of Clause 9 and 10, regarding historic call-related information, was to enable law enforcement agencies to gather sufficient information in order to apply for a direction. A judge may also direct that the service provider provide on-going information via a supplementary direction in terms of Clause 10(2). Clause 11 obliges a service provider, before it enters into a contract, to obtain certain information about the person, body or organisation and to ensure that proper records are kept. However, this does not apply to prepaid packages.

The Chair enquired whether the definition of "communication" includes the internet, for example, the monitoring of visits made to porn sites or bomb-making sites.

Mr Jacobs responded that the definition was not closed and that there was a need for monitoring the internet. The intention was that it would include the internet.

The Chair was not sure if monitoring of the internet should be included within the definition.

The question was raised whether there were any new principles incorporated in the Bill.

Mr Labuschagne answered that Clause 15(2) provides for the liability of service providers. In terms of Clause 15(4) a person acting bona fide would not be held liable, and Clause 16 provides for the licence of a service provider to be revoked.

Adv M Masutha (ANC) asked to what extent copyright law had been taken into account.

The Chair asked why Clause 2 did not apply to the police to enable them to get around Clause 3.

Mr Jacobs replied that in terms of a recent judgment, private persons may monitor their conversations but police, intelligence or state agencies required a direction from a judge to do so. There is an obligation to follow that decision within the jurisdiction of that province but there was uncertainty regarding the other jurisdictions.

The Chair enquired why the Clause did not specifically exclude law enforcement officers.

Mr Van Wyk responded that it originally had but that had been changed.

The Chair stated that there was a need to discuss the issue.

Mr Jacobs responded to the question on copyright by stating that there was a privacy clause incorporated into the Bill that allows for information to be relayed to only courts and those who need to know.

Mrs S Camerer (NNP) felt that the Bill goes far beyond the previous Act as far as grounds were concerned. The inclusion of "compelling national interest" pointed back to the old era as more or less anything could fit in.

Mr Labuschagne responded that the new provision does not go far beyond the previous Act. Only "compelling national interest" had been included as the test for judges to apply before they issue a warrant.

The Chair stated that as far as the question of equipment was concerned, the State would pay for the central monitoring centres and the costs of service but the service provider would provide the original equipment.

Mrs S Camerer (NNP) enquired if it was possible to get a comprehensive picture of what was happening in the rest of the world.

The Chair answered that the best the legal advisers could do was explain what was going on in other parts of the world, and in most circumstances the service provider bears the costs. It would seem that this has been the reason for a number of small service providers going out of business.

The next item, that of whether an ID document should be made available when buying a pre-paid package, was raised.

Mr L T Landers (ANC) asked why pre-paid phones had been excluded. The wording of s11(3)(b) was such that it placed no obligation on service providers to obtain information.

Mr Labuschagne responded that the Law Commission had recommended that it be included but that at a meeting with the service providers it was felt that it would not be practical to obtain the information.

Discussion ended.