Cybercrimes Bill; Civil Union Amendment Bill; Firearms Amnesty; Magistrates Regulations; with Deputy Minister

Meeting report

The Chairperson noted that regulations under the Magistrates Act shall be enforced unless or until Parliament by a resolution disapproves of the regulation. These regulations deal with the leave dispensation as it applies to magistrates. The intention of the new leave dispensation is to move away from the public service prescripts that still apply to magistrates to further enhance the independence of the judiciary.

Regulations for Judicial Officers in Lower Courts: Amendment to section 16 of Magistrates Act
The Deputy Minister, Mr John Jeffery, said that the leave regulations for judicial officers in the lower courts form part of a number of steps taken by the Magistrate’s Commission and the DOJ to further enhance the independence of magistrates and to de-link them from the public service. He noted that up until 1993, magistrates were public servants and they have since then become independent. As background, he noted that a task team was set up 2016 between the Magistrates Commission and the DOJ for matters identified as requiring special attention. The procedure for newly appointed or aspirant magistrates, a code of conduct for magistrates, amendment to the leave regulations and transport and subsistence provisions applicable to magistrates were all compiled. Appointment procedures have been dealt with and the probation period has been done away with, a code of good conduct came into effect, bringing magistrates more in line with the code of conduct for judges that came into effect on 7 Sept 2018 and was tabled in Parliament. The leave regulations are currently before the Portfolio and Select Committees. The new financial manual for magistrates is currently with the Director General of National Treasury for consideration. It aims to create a separate dispensation for magistrates and to exclude them from the financial instructions currently applicable to public servants. This financial manual is of an administrative nature, and is therefore not required to be submitted to Parliament. There are other regulations but these will be dealt with as soon as the Magistrates Amendment Bill has been submitted to and approved by Parliament.

The regulations before the Committee came into effect on 1 January 2020 and do not have to be approved of by the Committee but the Committee has the power to reject them. The main change is that in the current dispensation, magistrates can accrue leave indefinitely. This change means that up until 1 January 2020, magistrates can keep all of the leave which they have accrued, but from that date, the new system involves leave over a three-year cycle. This will mean that magistrates have to take a certain number of leave days a year and the rest can be accumulated, however, at the end of the three-year cycle, if you do not use them, you lose them and you will not be paid out. He said this system is now in place.

The Deputy Minister introduced Magistrate Anton Prinsloo of the Magistrates’ Commission and Mr Dawood Mahomed, Commission Secretary. He said the presentation was long but asked Mr Prinsloo to keep it short.

Magistrate Anton Prinsloo said that Magistrates had traditionally been public servants. He summarised the kinds of leave which the amended regulations addressed as well as regulation 39(1). The rest of the presentation went into more detail, and he asked if he should go into more detail.

Discussion
The Chairperson replied that he had given sufficient detail. Committee members had already engaged with the regulations but they could comment or ask questions.

Mr T Dodovu (ANC, North West) said that the presentation was short and to the point and it made sense of what would be happening with the leave. He suggested they adopt the report accepting the amendments to the regulations.

The Chairperson said if the Committee was satisfied with the briefing, she would proceed to table the Committee Report for adoption. Members have received a copy of the report and she asked if the Committee was happy to adopt the Committee Report on the leave and other regulations.

The Committee indicated its approval and adopted the amended regulations.

The Chairperson thanked the Deputy Minister and the Commission for their presentation.

The Deputy Minister indicated that he intended to remain to witness the Cybercrimes Bill deliberations.

Cybercrimes Bill [B6B-2017]: proposed amendments
The Chairperson noted the procedure for a Bill made in terms of section 75 of the Constitution. As a Committee it must recommend to the NCOP to either pass the Bill; pass the Bill subject to amendments; or reject the Bill. This Bill was subject to proposed amendments hence the question before the Committee was to pass the Bill subject to the proposed amendments.

She said that if the Committee was in agreement, the proposed amendments would be presented clause by clause or section by section and she would call for agreement on the proposed clause before moving on to the next clause. Where there is a member or party who objects to a clause or all of the amendments on principle, that member must specify the clause and the objection. If no consensus is reached on a particular matter, the Committee may put the matter to a vote. In terms of rule 155(3), the majority of the permanent members of the Committee need to be present and the question is decided by the majority of the votes cast. Where there is an equal number of the votes on either side of a question, the Chairperson must cast the deciding vote in addition to her vote as an ordinary member. In terms of 211(d), the Committee must specify in which respect there was no consensus and in addition to the majority report, express the views of any minority concerned. After concluding the adoption process, the Committee must certify. She said this would be dealt with at a later stage. She asked the Committee if it would rather deal with the matter clause by clause or section by section and said she was happy to deal with the amendment’s clause by clause.

Mr Gxoyiya suggested that they proceed clause by clause for ease of comprehension and said that they could deal with the overall Bill after this.

The Chairperson asked the Committee Secretary to project the relevant clauses with proposed amendments.

Clause 1—definitions and interpretation
The Chairperson asked if members were in support of this amendment.

Mr G Michalakis (DA, Free State) said that for now the DA wishes to abstain and reserve the right to vote in NCOP plenary.

The Chairperson asked if this was for this clause alone or for the entire Bill.

Mr Michalakis said that this was for the entire Bill.

Mr Dodovu said that voting was not happening yet as they were only examining the clauses.

The Chairperson said that Mr Michalakis was saying that the DA reserves its right to vote on Clause 1. She explained she was asking if they would hold the same position for all the clauses.

Mr A Gxoyiya (ANC, Northern Cape) asked when the Committee members are members of the National Council of Provinces (NCOP) and representing a province and when they are members of political parties. He thought that the Committee was dealing with this matter as members of the Select Committee. Anyone who decides to abstain should abstain as a member of the Committee and not as a political party. He was not sure if the Constitution is along party or provincial lines. He did not want the Committee to find itself duplicating the National Assembly (NA) as they represent the provinces and he asked for clarity.

The Chairperson clarified that this is a section 75 Bill which does not require a provincial vote but does require a majority of members to support the necessary clause. Therefore, if Mr Michalakis indicates that the DA reserves its right to vote on this matter, he assumes that he is referring to himself, Mr I Sileku (DA, Western Cape) and Ms C Visser (DA, North West).

Mr Michalakis said that the position as interpreted by the Chairperson is correct and that the Committee whip would do well to study the Constitution and note that this is a section 75 Bill where members do not receive a mandate from the provinces and therefore they do represent a specific political party. He confirmed that this position applies to the three members of the DA on the Committee.

The Chairperson asked if any other member would like to reserve the right to vote.

Mr S Zandamela (EFF) asked if the Committee was voting on the Bill or if it was dealing with the proposed amendments clause by clause.

The Chairperson said that if there is an objection to a clause, this does not imply that there is not majority support. Therefore, for each clause, there needs to be an expression of support and lack of support and in the latter case, the reasons for not supporting the clause. In the case of the DA, it is reserving the right to vote, this is not necessarily expressing being against a particular clause. She said based on clause 1, there is majority support for the clause.

Clause 2—unlawful access
Mr K Motsamai (EFF, Gauteng) raised a point of order that as NCOP members they represent political parties.

The Chairperson said that there has already been clarification on this point.

Mr Dodovu supported the clause.

Mr Michalakis abstained.

The Chairperson noted a majority in support of the clause.

Clause 3—unlawful interception of data
Ms Z Ncitha (ANC, Eastern Cape) seconded Mr Dodovu support for the clause.
Mr Michalakis abstained on behalf of the DA.

Clause 4—unlawful acts in respect of software or hardware
The Chairperson asked for indications of support for the clause. After some silence, she said she assumed that when members were quiet, they supported the clause.

Mr Motsamai said that he was not supporting the clause, and that the Chairperson knew exactly why he was not supporting the clause.

The Chairperson asked him to state the reasons he was not supporting the clause.

Mr Motsamai insisted he is not supporting it.

Ms M Mmola (ANC) said she supported the clause and noted that Mr Motsamai does not know what to say.

The Chairperson said that for reporting purposes, the Committee needs to be able to report to the House about points where there was no consensus. She asked the reasons for his objection if any.

Mr Motsamai explained that when he says that he is not in support of the clause, he means that he will state the reasons clearly, but not now.

Ms Mmola said that he does not know what to say.

Mr Dodovu said that he must state the reason now.

The Chairperson said that this was correct. His party should have known that when he came to this meeting he should have prepared accordingly. She noted there was nevertheless enough support for the clause.

Clause 6—unlawful interference with a computer data storage medium or computer system
Majority of support was given for the clause.

Clause 7—unlawful acquisition, possession, provision receipt or use of password access code or similar data or device.
Majority of support was given for the clause.

Clause 8—cyber fraud
Majority of support was given for the clause.

Clause 10—cyber extortion
Majority of support was given for the clause.

Clause 11—aggravated offences
Mr Zandamela abstained on behalf of the EFF. He noted he had just managed to get back onto the platform due to network constraints.

Majority of support was given for the clause.

Clause 13—definitions
Mr S Mfayela (IFP, KwaZulu-Natal) and Mr E Mthethwa (ANC, KwaZulu-Natal) noted support.

Majority of support was given for the clause.

Clause 14—data message which incite damage to property or violence
Majority of support was given for the clause.

Clause 14—data messages which threaten persons with damage to property or violence
Majority of support was given for the clause.

Clause 16—disclosure of data messages of intimate images
Majority of support was given for the clause.

Clause 18—competent verdicts
Mr Motsamai abstained. Majority of support was given for the clause.

Clause 19—sentencing
Majority of support was given for the clause.

Clause 20—order to protect complainant pending finalisation of criminal proceedings
Majority of support was given for the clause.

Clause 21—electronic communication service providers or person in control of computer
system to furnish particulars to court
Majority of support was given for the clause.

Mr Zandamela noted that he was struggling with his network connection.

The Chairperson expressed her apologies for his complications.

Clause 22—finalisation of criminal proceedings
Majority of support was given for the clause.

Clause 23—penalties
Majority of support was given for the clause.

Clause 24—jurisdiction
Majority of support was given for the clause.

Clause 25—definitions
Majority of support was given for the clause.

Clause 26—standard operating procedures
Mr Dodovu said that the amendment deals with standard operating procedures which are to be adopted after a public consultation process. The clause is not clear if it is within six or 12 months.

The Chairperson replied that the amendment stated it was within 12 months. The previous version of the Bill stated six months.

Mr Dodovu understood and supported the clause.

Mr Motsamai abstained on behalf of the Economic Freedom Fighters (EFF).

Majority of support was given for the clause.

Clause 29—article to be searched for, accessed or seized under a search warrant
Majority of support was given for the clause.

Clause 30—oral application for search warrant or amendment of warrant
Majority of support was given for the clause.

Clause 32—search for access to or seizure of article involved in the commission of anoffence without search warrant
Mr Motsamai abstained.

Majority of support was given for the clause.

Clause 33—search for access to and seizure of article on arrest of person
Mr Motsamai abstained.

Majority of support was given for the clause.

Clause 35—obstructing or hindering police official or investigator authority to overcome resistance
Mr Motsamai abstained.

Majority of support was given for the clause.

Clause 37—wrongful search, access, seizure and restrictions on the use of instruments or device password or decryption key or information to gain access
Mr Motsamai abstained.

Majority of support was given for the clause.

Clause 39—prohibition on disclosure of information
Mr Motsamai abstained.

Majority of support was given for the clause.

Clause 40—interception off indirect communication, obtaining of real time information related to communication
Mr Motsamai abstained.

Majority of support was given for the clause.

Clause 41—expedited preservation of data direction
Mr Motsamai abstained.

Majority of support was given for the clause.

Clause 42
Mr Motsamai abstained.

Majority of support was given for the clause.

Clause 43
Mr Motsamai abstained.

Majority of support was given for the clause.

Clause 44—disclosure of data direction and search for access to and seizure of articles
Majority of support was given for the clause.

Clause 48— foreign requests for assistance and co-operation
Majority of support was given for the clause.

Clause 49—complying with order of designated judge
Mr Motsamai abstained.

Majority of support was given for the clause.

Clause 50—informing foreign state of a request for mutual assistance and expedited disclosure of traffic data
Mr Motsamai abstained.

Majority of support was given for the clause.

Clause 51—issuing of direction requesting assistance from a foreign state
Mr Motsamai abstained.

Majority of support was given for the clause.

Clause 52—establishment and functions of designated points of contact.
Mr Motsamai abstained.

Majority of support was given for the clause.

Clause 53—proof of certain facts by affidavits
Mr Motsamai abstained.

Majority of support was given for the clause.

Clause 54—obligations of electronic communications providers and financial institutions
Mr Motsamai abstained.

Majority of support was given for the clause.

Clause 55—capacity to prevent, detect and investigate cybercrimes
Mr Motsamai abstained.

Majority of support was given for the clause.

Clause 59—regulations
Mr Motsamai abstained.

Majority of support was given for the clause.

Clause 60—short title and commencement
Mr Motsamai abstained.

Majority of support was given for the clause.

Schedule amendments
Mr Motsamai abstained.

Majority of support was given for the schedule amendments.

Cybercrimes Bill [B6B-2017]: adoption with NCOP proposed amendments
The Chairperson said if there were no objections, the Committee Report recommending the NCOP approve the Bill may be presented for adoption. She asked the Committee Secretary to read the Committee Report.

After the reading, the Chairperson called for adoption of the report.

Mr Mthethwa moved for adoption and Mr Dodovu seconded the motion. The DA abstained from voting and reserved its right to vote in the NCOP plenary.

The Chairperson thanked the Committee and said that the Committee Report on the Cybercrimes Bill and the NCOP proposed amendments were duly adopted.

The Chairperson thanked the Committee for their participation and the Deputy Minister for his presence.

Civil Union Amendment Bill [B11B-2018]: concerns raised by two organisations
The Chairperson said that it was important to state upfront that the Committee has extensively deliberated on this Section 75 Bill. She noted that some Committee members would have received two emails from two organisations who wanted to hold public hearings on the Bill.

She highlighted some of the processes undertaken by the Committee in terms of the Committee’s public participation process. It put out a call for written submissions on the Bill and it provided sufficient time for comment on the Bill and it received 325 written responses from organisations and individuals. In addition, it received a legal opinion on public participation, particularly on the point of whether or not it was necessary to hold public hearings. Committee members had indicated that they were satisfied with and understood the content of the public submissions. The legal opinion said that public hearings were not required and were only to be held at the Committee’s discretion. The Committee had received advice from Home Affairs.

The organisation, Cause for Justice, was later supported by Freedom of Religion South Africa today in a communication to the Committee asking for public hearings. The communication reflected an attack on the parliamentary legal services unit and she had asked the parliamentary legal unit to outline their internal checks and balances and quality control to ensure that the legal advice which the Committee receives is of the highest quality. She did this to ensure that all correct procedure was followed. Its response was received quite late today and she would summarise it as the correspondence was forwarded to Members:

Parliament's Constitutional Legal Services Office (CLSO) replied that it has standard operating procedures. Procedures for developing legislation require that the legal advisor when receiving a brief to develop legislation must consider if the instruction involves any obvious constitutional concerns. The advisor then first develops an opinion on the constitutionality of the Act, before continuing with developing the Bill. This opinion has to be supported by law, which it was. It is then further considered by the senior legal advisor. If the senior legal advisor agrees with the findings, he refers it to the chief legal advisor. It is only at this point that the opinion was sent out. Once the draft Bill was developed, it is subjected to peer review and quality control. Amongst other things, both the peer reviewer and the quality controller must consider the constitutionality of the Bill. Both of these parties agreed that the provisions of the Civil Union Amendment Bill were constitutional. The parliamentary legal advisor then had to do a memorandum discussing the constitutionality of the Bill which is then quality checked by the senior legal advisor. Both the memorandum and the draft Bill were then submitted to the chief legal advisor for consideration and only once they agreed that the memorandum and draft Bill were legally sound could the pair be sent out. The Bill was thus considered for constitutionality on at least four different formal occasions by at least four different parties. These parties agreed that the draft Bill was ready for submission given the compliance of Bill. Compliance of Bills with constitutional principles is of extreme importance to Parliament's Constitutional Legal Services Office as it carries with it a risk of litigation and more importantly, of causing uncertainty within the law.

The Chairperson thought it was very important to bring this to the Committee because of the two correspondences received. She viewed them as an attack on the integrity of the parliamentary legal services unit which has all the checks and balances in place prior to advising a Committee of Parliament.

Discussion
Mr Gxoyiya said he felt that the Committee was being insulted by the manner in which the organisations were engaging with it. The Committee received 325 submissions, and the two organisations had not made a written submission yet insisted on a public hearing. This means that they expected the Committee should convene a special session just for them. This also undermined the Committee’s ability to read, interpret and understand the written submissions. Parliamentary legal services were also undermined by the behaviour of these organisations. These organisations chose that they were above other organisations who respected parliamentary processes and the fact that the Committee had chosen written responses. The Committee would not put itself in a corner to represent two organisations as the Committee represents and tries to balance all the views of the people. The two letters should not deter the Committee and it should focus on the job at hand, which is to process the Civil Union Amendment Bill. He said these messages were received by Committee members a long time ago but he did not respond as it would set a precedent the Committee could not live up to.

Mr I Sileku (DA, Western Cape) said that he was happy with what had been said and was content with the kind of public participation given.

Mr Mfayela agreed with Mr Gxoyiya. He did not think anything else had to be said about the two communications.

Civil Union Amendment Bill [B11B-2018]: adoption
The Chairperson asked the Committee Secretary to read the recommendations of the Committee Report, noting the Committee had not made any amendments to the Bill.

The Committee Secretary read the Committee Report recommending to the NCOP to adopt the Civil Union Amendment Bill [B11B-2018].

The Chairperson asked if anyone would like to move to adopt the report.

Mr Gxoyiya moved to adopt the report and Ms Mmola and Mr Dodovu seconded the motion.

Notice of declaration of Amnesty in terms of Firearms Control Act, No 60 of 2000
On 3 June 2020, the Committee received a SAPS briefing on the progress of December 2019 to 31 May 2020 Firearm Amnesty and the request for another amnesty for a period of six months. The Committee approved the Minister’s request for another amnesty period. The Committee Report sent to Members recommends the NCOP approve the amnesty period from 1 August 2020 until 31 January 2021.

The Chairperson asked if there were any comments or deliberations.

Mr Michalakis said he would like to deliberate. He had pointed out in the 3 June meeting with SAPS that he thought it would have been better for SAPS to wait for the judgment in the Supreme Court of Appeal on the to be handed down. He was concerned about the trust deficit between SAPS and the public and he felt that this may negatively affect the prospects of the firearms amnesty. He expressed serious concerns about the SAPS ability to ensure that ballistic testing is done properly and that the firearms amnesty can be fulfilled without any corruption or crime on the part of SAPS. Having said that, he supported the firearms amnesty, however, he would just like these specific concerns of the DA to be noted in terms of NCOP Rule 102(4) – A committee may not present a minority report but must reflect minority views in the committee in its reports.

The Chairperson noted the concerns and asked for a motion to support as Mr Michalakis had not done so explicitly.

Mr Dodovu said that in their deliberations, the ANC fully understood where SAPS was coming from in terms of proposing dates for another amnesty. In the view of the ANC, the crime that is ravaging the country must be arrested and government must do everything in its power to get the people of the country to hand over their firearms, especially the illegal ones. SAPS needs to start campaigning rigorously to contain the illegal arms which need to be confiscated. It cannot be said that because of the pending court case that nothing must happen. The ANC fully supports the process for reducing the levels of crime that are ravaging the country. SAPS should seriously consider the Committee’s comments and recommendations. The ANC is of the view that the process of handing over firearms must be accelerated as it will result in reducing the levels of crime in the country The ANC fully supports the amnesty.

The Chairperson clarified that Mr Dodovu was moving for the adoption of the amnesty and he also recommended that there be rigorous campaign to inform the public of the new dates so that the amnesty would be more successful. She asked for a seconder.

Ms Ncitha seconded based on Mr Dodovu’s observations.

The Chairperson noted the concerns of Mr Michalakis in terms of NCOP Rule 102(4) and asked for the DA to provide the exact wording of their comments so that the Committee does not get it wrong.

She asked if there were further objections and noting none, she said that these recommendations would be added to the report. The request for the extension of the amnesty is duly recommended by the Committee. She thanked the Committee for its support throughout the meeting as it was a lengthy process, particularly the Cybercrimes Bill as they do not usually deal with such lengthy NCOP amendments. She closed the meeting.