IPID Amendment Bill: deliberations & approval; Critical Infrastructure Protection Bill: deliberations

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Police

03 July 2018
Chairperson: Mr F Beukman (ANC)
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Meeting Summary

The Portfolio Committee on Police received written and oral submissions on the Independent Police Investigative Directorate (IPID) Amendment Bill and the Critical Infrastructure Protection Bill from various organizations.

IPID pointed out that the IPID Amendment Bill in its current form was inconsistent with the order of the Constitutional Court, following the McBride judgment, and may invite further interventions of the Court in order to protect the independence of the IPID. In seeking to comply with the Constitutional Court orders in the McBride case the Bill must include the method of appointment of the Executive Director, the remuneration and conditions of service, and the process for the suspension and removal from office.

The Centre for Applied Legal Studies (CALS) proposed that the Committee amend the Amendment Bill to empower the Minister to suspend the Executive Director only after consultation with the Committee; and to include principles and/or guidelines to inform the Minister’s discretion in this regard. It asserted that to subject the Director of IPID, which the Constitution demanded should be independent, to the laws governing the public service – to the extent that they empowered the Minister to unilaterally interfere with the Director’s tenure – was subversive of IPID’s institutional and functional independence, as it turned the Director into a public servant, subject to the political control of the Minister.

The Helen Suzman Foundation said it endorsed the recommendations contained in the African Policing and Civilian Oversight Forum (APCOF’s) submission, especially those pertaining to the appointment criteria and removal procedures of the Executive Director, but they acknowledged that it may be inappropriate to make submissions on these aspects in response to the current Bill.

The Southern African Catholic Bishops’ Conference strongly supported the proposed amendments to the IPID Act. They would help to ensure that the Executive Director could carry out his or her duties knowing that only a two-thirds majority of the National Assembly could remove him or her from office.

The Legal Resources Centre, on behalf of the Council for the Advancement of the South African Constitution (CASAC), welcomed the proposed amendments, particularly the introduction of Parliamentary oversight for the removal or suspension of the Executive Director. While the proposed amendments were broadly aligned with CASAC's submissions in the McBride matter, the amendment process provided a key opportunity to ensure that the subsequent IPID Act not only catered for the McBride decision, but put IPID in the best position to deal with future challenges.

The Committee was also provided with a summary of the submissions on the Bill by organisations like APCOF, CALS, the Western Cape Department of Community Safety, IPID, etc.

The Civilian Secretariat for Police Service (CSPS) focused its submission on the issue of the unconstitutionality of the declaration process in Chapter 3 of the Critical Infrastructure Protection (CIP) Bill, and certain offences in clause 26 and the public interest defence. Adv Trengrove SC had made certain submissions on the declaration process in Chapter 3 of the Bill. Since the provisions had already been voted on, the drafting team, with guidance of the Committee, had made submissions on a redraft of clauses 16-20.

Members remarked that the proposals made in section 4.15 of the presented document were not so much about the proposed sequence of the appointment of the Executive Director, but about opening up and making more transparent the prerequisite grounds of the nomination of the candidate by the Minister. They wanted to know if the presentation document delivered to the Committee had been given to the Minister before being presented to the Committee. They also observed they have had had a number of inputs disregarded, and that it was important that what the LRC and other important bodies had said, be inserted into the Bill.

Meeting report

Independent Police Investigative Directorate (IPID)

Mr Paul Maoka, Director: Litigation and Advisory Services: Independent Police Investigative Directorate (IPID), submitted that for the purposes of complying with the court's orders, section 6 (3) (a) of the Act must be amended also to the extent that it also provides for the appointment of the Executive Director, subject to the laws governing the public service. In order to assist the Committee in concluding this process within its set timeframes and those of the Constitutional Court, the IPID had prepared a draft proposal of the Bill which in its view was consistent with the McBride judgment and would pass constitutional muster.

The basis of the submission followed the findings of the North Gauteng High Court, holding that inasmuch as the Directorate for Priority Crime Investigation (DPCI) was independent -- despite there being no express constitutional entrenchment of its independence -- by parity of reasoning, "the effect of the constitutional entrenchment of the independence of IPID was that operational and structural independence of IPID must be as strongly protected as that of the DPCI". The North Gauteng High Court had further found that in some respects, the protections that must be afforded to the IPID had to be greater than the protections for the DPCI, since there was an obligation that the IPID be established by separate legislation. The North Gauteng High Court pronounced that structural and operational autonomy was a clear legal basis for law enforcement bodies such as the IPID, because they must be protected from undue political interference.

The court also found that public servants were government employees. They were beholden to government. They operated under government instructions and control, so to subject the Executive Director of IPID to the same regime was to undermine or subvert his/her independence. It was not congruent with the constitution.

Mr Maoka said it was difficult to attempt to define what the independence of IPID meant. It required a careful examination of a wide range of facts. Amongst these were the methods of appointment, the methods of reporting, disciplinary proceedings, and methods of removal of the Executive Director from office and security of tenure. The North Gauteng High Court had been very clear when analysing the independence of the IPID and excluding the Minister in the appointment and removal of the Executive Director. It was important that Parliament looked carefully at the findings of the Court regarding the IPID’s independence. It was submitted that section 6 be substituted in order to align it with the McBride judgment by ensuring that the appointment of the Executive Director of the IPID was no longer subject to the laws governing the public service.

It was submitted that a new section 6A should be included in the Bill, which dealt with the remuneration and conditions of service of the Executive Director and provided a prohibition of remunerative work outside the official duties of the Executive Director, to ensure he/she concentrated on the constitutional mandate of SAPS. It was further proposed that section 6B be inserted in order to align it with the McBride judgment to ensure Parliamentary oversight of the suspension and removal of the Executive Director of IPID.

Mr Maoka concluded by saying the Committee Bill in its current form was inconsistent with the order of the Constitutional Court, and may invite further interventions of the Constitution Court in order to protect the independence of the IPID as pronounced by the Court. In terms of the findings of both Courts, the Bill, in seeking to comply with the Constitutional Court orders in the McBride case, must include the method of appointment of the Executive Director, the remuneration and conditions of service of the Executive Director, and the suspension and removal from office of the Executive Director.

Centre for Applied Legal Studies (CALS)

Mr Lubabalo Mabhenxa, Candidate Attorney: CALS, proposed that the Committee amend the Amendment Bill to empower the Minister to suspend the Executive Director only after consultation with the Committee; and to include principles and/or guidelines to inform the Minister’s discretion to suspend the Executive Director. To subject the Executive Director of IPID, which the Constitution demands to be independent, to the laws governing the public service – to the extent that they empowered the Minister to unilaterally interfere with the Executive Director’s tenure – was subversive of IPID’s institutional and functional independence, as it turned the Executive Director into a public servant subject to the political control of the Minister.

Without adequate independence, it would be easy for the Minister to usurp the power of the Executive Director under the guise of exercising political accountability or oversight over IPID in terms of section 206 (1) of the Constitution. In this case, acting unilaterally, the Minister had invoked the provisions of section 16A (1) of the Public Service Act, placed Mr McBride on suspension and instituted disciplinary proceedings against him. Undoubtedly, such conduct had the potential to expose IPID to constitutionally impermissible executive or political control. That action was not consonant with the notion of the operational autonomy of IPID as an institution. Put plainly, it was inconsistent with section 206 (6) of the Constitution.

The cumulative effect of the impugned sections had the potential to diminish the confidence the public should have in IPID. As the amicus curiae had emphasised in its submissions, both the independence and the appearance of an independent IPID were central to this matter. The manner in which the Minister dealt with Mr McBride demonstrated, without doubt, how invasive the Minister’s powers were. What exacerbated the situation was that he acted unilaterally. This destroyed the very confidence which the public should have that IPID would be able, without undue political interference, to investigate complaints against the police fearlessly and without favour or bias. IPID must therefore not only be independent, but must be seen to be so. Without enjoying the confidence of the public, IPID would not be able to function efficiently, as the public might be disinclined or reluctant to report their cases to it.

Using the judgment to interpret the proposed amendment bill, there were numerous possible interpretations of section 6A (3) (a), which stated that the Minister may suspend the Executive Director from office at any time after the start of proceedings of a Committee of the National Assembly for the removal of that person. The one interpretation was that it gave the Minister the authority to suspend the Executive Director at the start of any proceedings contemplated under sections 6A (1). If this was so, then the power given to the Minister to suspend the Executive Director was not subject to any Parliamentary oversight, and it therefore had the potential to expose IPID to constitutionally impermissible executive or political control, as held in the McBride judgment. As such, this was not the remedy and/or the amendment envisioned by the Constitutional Court.

CALS therefore proposed that the amendment should clearly state that the Minister could exercise his or her power to suspend only after consultation with the Committee, any time after the start of any proceedings contemplated in section 6A (1). This meant that the Minister’s power was subject to oversight by the Committee, and consequently, the amendment provision would comply with the McBride judgment.

CALS was concerned that section 6A(3)(a) provided the Minister with an unduly wide discretion. Where legislation made provision for discretionary use of power, as this amendment did, such discretion should be guided by determinable principles or guidelines. There were good reasons that may make a suspension necessary. Reasons, for example, may include evidence that the Executive Director was interfering with the investigation, and/or evidence that the continued holding of the position (of the Executive Director) would result in irreparable or significant harm. Principles or guidelines were important, because suspension ought not to be used as a punishment for disciplinary proceedings which were not yet concluded. Suspension was rather to facilitate the investigation and to prevent further harm.

CALS therefore proposed that the Minister’s discretion be coupled with principles or guidelines to inform the decision. The Constitutional Court in the McBride case emphasised that the Minister could not exercise the power to suspend the Executive Director unilaterally. CALS proposed that the Amendment Bill should clearly state that the Minister could exercise his or her power to suspend only after consultation with the Committee. CALS further proposed that the Amendment Bill should make it clear that the Minister’s discretion to suspend the Executive Director should be coupled with principles or guidelines to inform the decision.

Helen Suzman Foundation

Ms Kimera Chetty, Legal Researcher: Helen Suzman Foundation, said they endorsed the recommendations contained in the African Policing and Civilian Oversight Forum’s (APCOF’s) submission, especially those pertaining to the appointment criteria and removal procedures of the Executive Director. However, they acknowledged that it may be inappropriate to make submissions on these aspects in response to the current Bill.

The Foundation recommended the following approach be taken by the Portfolio Committee:

  • Given the time constraints and in order to avoid being in contempt of the Constitutional Court order, the Committee must ensure compliance by enacting the Bill before 6 September 2018.
  • While the Bill may meet strict compliance with the order, it was limited in scope in so far as it only addressed removal. The Foundation did not believe that enacting this Bill could constitute the final step of bringing the Act in line with the Constitution. The Foundation, therefore, urged that beyond this legislative step, the Committee urgently consider further amending the IPID Act to address the concerns identified by APCOF in their submission under the headings, ‘Appointment of the Executive Director’ and ‘Removal of the Executive Director’. Assurances in this regard from the Committee may avoid the need for a legal challenge in order to make the IPID Act constitutionally compliant.

The Foundation further urged a continued legislative review and engagement with stakeholders in order to strengthen both the IPID Act and the institution. It also proposed insertion of the words “relevant Parliamentary” before the word “Committee” in the proposed Section 6A 1(a), to bring the clause in line with the wording in Section 6(2) of the IPID Act; addition of the words, “and as contemplated in Sections 12, 13 and 14” in the definition of “Committee” in Section 1 of the IPID Act; and addition of the definition of “Parliamentary Committee”, in section 1 of the IPID Act, which describes the specific Committee referred to in Section 6(2) of the IPID Act and Section 6A of the proposed Amendment. This definition must make clear that the relevant Parliamentary Committee which was empowered to appoint the Executive Director in Section 6(2), was the same Parliamentary Committee referred to in the proposed Section 6A. This distinction was important in order to differentiate it from “the Committee” as contemplated in Sections 11, 12, 13 and 14 of the IPID Act, which concern the “Management Committee”.

The Helen Suzman Foundation concluded it was encouraged by the steps taken by the Portfolio Committee on Police to bring the IPID Act in line with the order handed down by the Constitutional Court. It saw this as an important step in imbuing IPID with the requisite degree of institutional independence.

Southern African Catholic Bishops’ Conference

Mr Irvin Kinnes, Committee Content Advisor, on behalf of the Catholic Bishops Conference, said that an independent police watchdog organisation was a vital factor in ensuring that a nation’s police service carried out its duties professionally, ethically and constitutionally. This not only helped to maintain public trust and confidence in the police, but it also protected individual police officers -- and the police service as a whole -- from unwarranted and malicious attacks. Such a body must be truly independent of the police service, and must be seen to be so. This consideration was at the heart of the Constitutional Court’s findings in McBride v Minister of Police and Another [2016] ZACC 30.

If the Executive Director of a body such as IPID could be suspended or dismissed from office solely by the Minister of Police, it could not be said that a sufficient degree of independence existed. Furthermore, such a provision effectively prevented Parliament from exercising the necessary oversight regarding an executive decision with far-reaching implications.

The organisation strongly supported the proposed amendments to the IPID Act. They would help to ensure that the Executive Director of IPID could carry out his or her duties knowing that only a two-thirds majority of the National Assembly could remove him or her from office.

They supported the role given to ‘a Committee of the National Assembly’ in the proposed new section 6A (1) (a) of the IPID Act. It was appropriate that a body consisting of public representatives should be tasked with making a finding as to the fitness for office of the IPID Director, just as it would do in the case of the Head of the DPCI.

Critical Infrastructure Protection (CIP) Bill

Civilian Secretariat for Police Service
(CSPS)

Brigadier Bert van der Walt, Head: Legal Support Service, South African Police Service (SAPS), took the Committee through the Critical Infrastructure Protection Bill. He touched on the introduction and background of the declaration process. He reported that Amabhungane had submitted a legal opinion by Dr Dario Milo and Adv Ben Winks regarding the constitutionality of inserting a public interest defence for purposes of clause 26 (1)(a) - (c) offences. The opinion concluded that clause 26, especially sub-clause (1) (a), (b) and (c), would not survive a constitutional challenge. Parliament had subsequently obtained a legal opinion from a constitutional law expert, Adv Wim Trengrove SC, on the issue.The focus of the submission was the issue of the unconstitutionality of the declaration process in Chapter 3 of the CIP Bill, and certain offences in clause 26 and the public interest defence. Adv Trengrove had made certain submissions on the declaration process in Chapter 3 of the Bill. Since the provisions had already been voted on, the drafting team, with guidance from the Committee, had made submissions on a redraft of clauses 16-20. These were:

Clause 16
The current clause dealt with the power of the Minister to declare any critical infrastructure and determine critical infrastructure complex. Some criteria for declaration were contained in clause 16 (2), while other factors were contained in clause 17. The proposed clause 16 dealt only with the requirements for declaration of infrastructure as critical infrastructure, as proposed by Adv Trengrove.

Clause 17
This clause contained factors to be taken into account in the declaration of critical infrastructure. The proposed clause 17 dealt with the application for declaration as critical infrastructure and critical infrastructure complex by persons in control, and contained procedural aspects of clause 18. Relevant factors from clause 17 were now required as part of the application process.

Clause 18
The proposed clause 18 contained the procedure for application for the declaration as critical infrastructure and a critical infrastructure complex by the National Commissioner. It therefore replaced the existing clause 19.

Clause 19
The proposed clause 19 contained consideration of an application for declaration as critical infrastructure by the Critical Infrastructure Council, and its recommendation. It therefore extracted the functions of the Council as it related to the application from the existing clause 20, and put it into a more logical process on its own.

Clause 20
The proposed clause 20 contained the powers of the Minister to declare infrastructure as critical infrastructure. It therefore extracted the powers of the Minister to declare critical infrastructure from the existing clauses 16 (1) and 20, and combined them to form a more logical process on its own in one clause. It addressed the concern that the Minister had unfettered powers which may have been an unforeseen consequence of the wording of the existing clauses 16 and 20.

Clause 26: offences and penalties
It was respectfully submitted that an official may lawfully perform an action referred to in clause 26 (1) (a) - (b). The word unlawfully was a drafting convention, and would anyway constitute an element of the offence to be proved by prosecution. Adv Trengrove had concluded that the offence in clause 26 (1) (c) was problematic in its interpretation. The drafting team agreed with the conclusion, and it was submitted that clause 26 (1) (c) be removed.

Essentially, clauses 26 (1) (a) and (b) prohibited the unlawful disclosure of information, or the unlawful taking of a picture of the security measures at critical infrastructure. Adv Trengrove submitted that the phrase security measures was too wide, and the effect was that the offences may indeed be in conflict with the right to freedom of expression as contained in section 16 of the Constitution. The conclusion was that the constitutional issue could be cured if the definition of “security measures,” as it related to these offences, was narrowed down only for purposes of clause 26 (1) (a) and (b). The following insertion of a new subclause (2) was proposed:

(2) For purposes of subsection (1) (a) and subsection (1) (b), "security measures" means those security measures at critical infrastructure that are not clearly visible to the public or in the public domain.

Regarding the public interest defence, Adv Trengrove submitted that the current formulation of the prohibitions was unconstitutional. The defect would not be cured by the introduction of a public interest defence. Furthermore, the public interest defence became unnecessary if the clause was limited to prohibit disclosure of information that was not in the public domain, and the taking of pictures of security measures at critical infrastructure which were not on public display.

Legal Resources Centre (LRC)

Adv Lawson Naidoo, Executive Secretary: Council for the Advancement of the South African Constitution (CASAC), said the LRC was acting on behalf of CASAC, which welcomed the proposed amendments to the IPID Act, particularly the introduction of Parliamentary oversight for the removal or suspension of the Executive Director. While the proposed amendments were broadly aligned with CASAC's submissions in the McBride matter, the amendment process provided a key opportunity to ensure that the subsequent IPID Act not only catered for the McBride decision, but put IPID in the best position to deal with future challenges. CASAC endorsed the submissions made by the APCOF to the Committee regarding the draft IPID Amendment Bill, which considered questions beyond the McBride decision.

IPID Amendment Bill: Summary of submissions

Mr Michael Prince, Parliamentary Legal Advisor, informed the Committee there had been no objections to the amendments proposed. The Committee, he said, had to note that any substantive amendments to the Act would need to be advertised for public comments and subjected to Parliament’s rules.

African Civilian Policing Oversight Forum (APCOF)

APCOF stated that the IPID Act required a broader amendment than the one proposed by the Constitutional Court. On the appointment of the Executive Director, it stated the committee established by the National Assembly should initiate the appointment of the Executive Director through an open, transparent, and competitive recruitment process. The recruitment process should be by way of applications, invitations or nominations. The Executive Director should be appointed for a non-renewable fixed term of not shorter than seven years and not exceeding ten years. Among other things, the Executive Director should not perform remunerative work outside of his/her official duties.

Regarding the removal of the Executive Director, APCOF had stated there should be a process for the removal of the Executive Director. Any complaints relating to allegations contemplated in the Act must be communicated in writing to the Speaker of the National Assembly and copied to the Minister within 14 days after the receipt of such a complaint. The Speaker of the National Assembly must then ensure that a committee was constituted within 30 days to deal with the complaint and matters related to it. Any decision taken by the committee on the matter must be communicated to the complainant, Executive Director, Speaker of the National Assembly, and the Minister. Where there was an intention to suspend or dismiss, the chairperson of the committee must invite the Executive Director to submit representations, if any, within 14 days of receipt of notice of intention to suspend, on why he or she should not be suspended.

Concerning institutional and operational matters, APCOF stated the Directorate must function independently from the SAPS. It must be impartial, exercise its powers and perform the functions of office without fear, favour or prejudice.

Mary de Haas: Independent Violence Monitor

Ms De Haas had supported the amendments because they placed the removal of the Executive Director in the hands of Parliament.CSPS It submitted that the Executive Director must not be subjected to the same regime that applied to public servants, which would undermine or subvert his/her independence. It also submitted that the remuneration and other terms and conditions of employment of the Executive Director would from time to time be determined by the Minister and should not be lower or reduced or adversely altered during his/her term of office, or be lower than that of the National Commissioner.

Western Cape Department of Community Safety

It proposed that the IPID should operate independently and at arm’s-length from the Ministry. It proposed that the executive authority, on the recommendations of the National Assembly, appoint the Executive Director. It also recommended that the Executive Director of IPID must not have been, or be, a police official. This would reinforce the independence of IPID by ensuring that the Executive Director would in no manner be or perceived to be unduly influenced by his or her former colleagues.

Southern African Catholics Bishops Conference

It strongly supported the proposed amendments to the IPID Act because they would help ensure the Executive Director of IPID could carry out his or her duties knowing that only a two-thirds majority of the National Assembly could remove him or her from office.

Legal Resource Centre (on behalf of CASAC)

CASAC welcomed the proposed amendments to the IPID Act, particularly the introduction of Parliamentary oversight for the removal or suspension of the Executive Director. CASAC endorsed the submissions made by the APCOF to the Committee regarding the draft IPID Amendment Bill, which considered questions beyond the McBride decision.

Helen Suzman Foundation

It endorsed the recommendations contained in the APCOF's submission, especially those pertaining to the appointment criteria and the removal procedures of the Executive Director. It stated the Committee must ensure compliance by enacting the Bill before 6 September 2018.

Centre for Applied Legal Studies

CALS proposed that the Committee empower the Minister to suspend the Executive Director only after consultation with the Committee.

IPID

It submitted that for the purpose of complying with the court's orders, section 6 (3) (a) of the Act must be amended also to the extent that it provided for the appointment of the Executive Director, subject to the laws governing the public service.

Discussion

IPID Presentation

Mr Z Mbhele (DA) said that the proposals made in section 4.15 of the presented document were not so much about the proposed sequence of the appointment of the Executive Director, but about opening up and making more transparent the prerequisite grounds of the nomination of the candidate by the Minister. He asked if there was anything he was missing from that section.

Mr Maoka said that the process to appoint the Executive Director must be transparent. It had been proposed that the technical committee chairperson must be a person with an extensive human rights background in order to understand what section 206 (6) provided. He said this would ensure there was a balance in the committee, because it needed to be made up of people with knowledge of criminal justice, the security environment, etc, so that the person to be appointed as an Executive Director understood what was expected of him/her in terms of section 206 (6).

Adv Simo Chamane, Minister’s Legal Advisor, said the Minister still had to discuss with the Cabinet issues related to the remuneration and conditions of service of the Executive Director. It was important that any submission from the Secretariat/IPID did not concern the Minister. The Minister had not been briefed about the presentation to the Committee.

The Chairperson asked if there had been consultation with the executive authority on the broader and narrow issues on the table.

Mr Maoka said that the executive director was on leave and he (Mr Maoka) was not in a position to say whether the executive director had consulted the executive authority. He had had a meeting with the Minister in June 2018 regarding the submission. It appeared the special legal advisor had not advised the Minister about the Concourt judgment. The North Gauteng High Court and the Concourt had spoken at length about the remuneration of the Executive Director and conditions of service, saying that they should be similar to those of the DPCI. When the Minister took office, the provisions of the Act had been brought to his attention.

The Chairperson wanted to understand if the presentation document delivered to the Committee had been given to the Minister before being presented to the Committee.

Mr Maoka said he was not aware of any consultation between the executive director and Minister.

Ms D Kohler Barnard (DA) asked if there was a reason why the submission from IPID should have been signed off by the Minister, because the head of IPID did not see eye to eye with SAPS. The Director of IPID was fighting for his independence.

The Chairperson said the Committee wanted to ensure that consultations were conducted with all role players to make sure everyone was on the same page, to avoid them raising different concerns.

LRC Presentation

Ms Kohler Barnard remarked that a number of inputs had been disregarded. It was important that what the LRC and other top bodies had said be inserted into the Bill. There was nothing that stopped the Committee from inserting these inputs, because it was an independent entity.

The Chairperson commented that all the submissions pointed to a total revamp of IPID. Time was proving to be a challenge, because everything had to be completed by September 2018, and also had to take into account the Parliamentary schedule. Issues of a substantive nature still had to go the sub-committees, but legal advisors of Parliament would be given space to consider the inputs. He asked for Adv Naidoo’s views on the unconstitutionality of the Bill.

Adv Naidoo said he saw nothing unconstitutional about the Bill. What was encouraging was that the Committee wanted to see IPID being overhauled. IPID’s level of independence should be at a much higher level than that of the DPCI, because it had to exercise oversight over DPCI.

Summary on submissions

Ms Kohler Barnard said the whole process had been overseen by various legal bodies in Parliament. The same people who advised the Minister were the same people who advised the Committee.

Mr Prince said he was not the right person to respond to the comment. The remark should be directed to the people who were advising the Minister and the Department. As Parliamentary legal advisors, they did not advise the executive authority.

Mr Mbhele remarked that the reason why the High Court had inserted section 17D (a) was because it had to make reference to and borrow from existing statutes in order to effect an interim remedy. The interim remedy was not complete. He also said some sections in the sub-sections were a bit disjointed and had some gaps. He wanted to know how they were going to be addressed. He asked if the sections currently proposed as the remedy for IPID Act made provisions for the National Assembly (NA) committee to make a finding against the Executive Director. This would be operationalised through a resolution and the Executive Director would be removed, but there was no clarity on how the Committee would arrive at that finding. There were sections that made provisions for the removal of the Executive Director, but there was no substantive clarity as to what that meant. If one started a process with an intention to remove, then there must be a prima facie basis for having reached that point. Seeing that there were various interests to weaken and undermine IPID, he asked how one arrived at triggering the proceedings to remove the Executive Director, and at the finding of a committee which became the resolution of the NA.

Mr Prince said there were various ways in which matters were brought to parliament. The Committee must be careful of setting parameters as to how things should be dealt with. The non-governmental organizations (NGOs) played a particular role in this regard. Matters came to Parliament through petitions, oversight and allegations. The Committee was empowered to make its own rules regarding the removal of the Executive Director.

Mr Mbhele, on the proposed textual amendment that a “Committee of the NA” be the generic wording, instead of saying “relevant parliament committee”, asked if there was any reasonable risk of ambiguity where the activation of that provision was handed over to the portfolio committee of the NA.

Mr Prince said it could mean an ad hoc committee, but ordinarily Parliament would refer such a matter to an appropriate portfolio committee that would see to it that the Department’s matters were resolved. It was not for the Committee to decide for Parliament which form it had to utilise to legislate.

Critical Infrastructure Protection Bill

Ms Barnard wanted to understand if there were any measures in place to ensure that journalists did go to jail for taking a picture of a canary, or if they would be able to do their work.

Brigadier van der Walt said there were three avenues available to journalists. They had to use the Promotion of Access to Information Act (PAIA). Photos of the canary itself would not prove corruption. The word “unlawful” would be retained in the text, and could be equated to “unjustified”. Something would be unlawful when it was contrary to the values of society.

Mr Mbhele asked how the reconfiguration of clauses16 to 20 correlated with the Bill.

Brigadier van der Walt said they had been extracted from the existing clauses. Most of the factors had been introduced in the application.

The meeting was adjourned.
 

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