Protection of Personal Information Bill NCOP amendments; Committee process on Public Protector allegations, Legal Practice Bill & SA Human Rights Commission appointments

Meeting report

Chairperson’s opening remarks: Appointment of new Deputy Minister of Justice
The Chairperson noted that former Member of the Committee, Mr John Jeffrey (ANC) had been appointed as the Deputy Minister of Justice and Constitutional Development.

Ms M Smuts (DA) noted that she had conveyed congratulations to Mr Jeffery in a personal capacity, but wanted, on behalf of the Committee, to commend his notable legislative skills, which she presumed he would bring to his new post. Members of the Executive did not generally frequent this Committee’s meetings unless invited, but she hoped that the Minister and Deputy Minister could perhaps be invited in future, if the Committee programme allowed.

Mr S Swart (ACDP) noted that he had served with Mr Jeffrey since 1999 on this Committee, and wished him well. The Committee would miss his legal insight, expertise and sharp wit. His promotion was a substantial loss to the Committee. He noted that Mr Jeffery was not shy to hold departments accountable, a stance usually adopted particularly by opposition MPs. He had no doubt that he would “stir the pot” in the Executive, in an appropriate manner.

Ms D Schäfer (DA) noted that the meetings were likely to be less interesting without Mr Jeffery’s presence, although she also quipped that they would be shorter, and she said that she had conveyed congratulations to him as well.

Mr J Sibanyoni (ANC) also felt that Mr Jeffrey’s appointment would be a loss to the Committee, but conveyed his sincere congratulations. Mr Jeffery had been a tireless worker on the Committee and in other functions, displayed great knowledge, and he wished him well in his new post. He was interesting to note that he would be representing the Minister in a meeting on the coming Friday.

Ms S Shope-Sithole (ANC) noted that she would miss Mr Jeffrey, from whom she had learnt a lot, but looked forward to interacting with him still in study groups.

Adv L Adams (COPE) joked that she would be interested to see whether bills would be passed more quickly without Mr Jeffery’s input, but on a serious note, said that she wished him well and hoped that the new appointee would show similar vigour.

Ms C Pilane-Majake (ANC) agreed that Mr Jeffrey had been a pillar of strength, and the Committee was hoping for a good replacement. She particularly noted that his personality had been a unifying force in the Committee.

The Chairperson said that Mr Jeffery’s appointment brought honour to this Committee, and he believed that this appointment was well deserved, and overdue. The Committee’s loss would be the Executive’s gain. Without any disrespect to any serving member, or his replacement, his appointment would leave a gap in the Committee. From the day that he had joined, Mr Jeffery had made a substantial contribution and he would be missed. He hoped that the good spirit would remain. He was thrilled for him.

Protection of Personal Information Bill B9B-2009: Select Committee on Security and Constitutional Development report and suggested amendments
Mr Henk du Preez, State Law Adviser, Department of Justice and Constitutional Development, was asked by the Chairperson to give a report on the Select Committee’s decisions on the Protection of Personal Information Bill (the Bill). The Select Committee had approved the Bill, with amendments. He indicated that when the Department had prepared for the Select Committee process, it had picked up a few small items needing correction, and so most of the amendments proposed were of a technical nature. There were several amendments replacing references to the Bill’s date. There was not consensus in the Department of Justice and Constitutional Development (the Department) whether this had to be amended formally, or whether it could be amended administratively, but the Department decided in this case to include the amendments, which were numerous, as formal amendments.

He noted that the Committee had been provided with a copy of the Bill, with highlighted sections, but he would work from the extract of the Select Committee’s report, as printed in the ATC.

The changes to the Contents clauses were consequential, and the phrase “or biometric information” was inserted after “behaviour”. Many of the changes were consequential on the amendment of clause 33.

In relation to clause 4, the Department had made a recommendation to the Select Committee for purposes of clarity. Mr du Preez reminded Members that clause 4 was the “roadmap” clause, and a new subclause (5) was now being recommended, dealing with processing of special personal information of a child. Renumbering of the remaining subclauses was needed.

Clause 6 contained a technical amendment as the “and” was omitted. Similarly, technical amendments were included in clause 18.

The changes to clause 24 were based on comments received via Mr Jeffery. This clause dealt with protection of personal information, and changes that had to be made to correct information. There had not been any indication of time frames, and the proposal was that a time limit be inserted. However, it was finally accepted that it would be more appropriate to use “as soon as reasonable practicable”.

Clause 31 also contained technical amendments for ease of reading. Clause 32 was also quite technical. The Council for Medical Schemes advised that the correct wording was “medical schemes” and this was now corrected to align with other legislation.

The proposed amendments to clause 33 were more substantial. Mr du Preez noted that clause 26 made reference to different kinds of special information, but biometric information was not dealt with separately. Biometric information was not, strictly speaking, health information, so a separate reference to “biometric information” was needed as well.

Clause 38 contained technical amendments to correct the reference to clauses 11(3) and (4).

In clause 40, there was correction of a spelling mistake. Clause 44 also contained changes of a technical nature, because it had referred to the “information protection principles” which were in force at the time, but was later changed to “conditions for the lawful processing of personal information”.

The clause 72 amendments were introduced after a submission by the Financial Services Board (FSB) to the Select Committee, about continuing concerns. The Department was asked to meet with the FSB, but there were two different concerns raised, some relating to clause 38 and the others to clause 72. The reference to a Memorandum of Understanding was originally inserted into clause 72 to try to address the FSB concerns, but after the meetings between the Department and FSB, it was eventually agreed that it was not necessary to have these provisions in clauses 72 and 99, so it was then proposed that they be omitted, and the Select Committee had agreed to that. This now brought the clause more in line with the original clause as introduced, before the proposals and amendments by the technical committee. It had not been possible to reach consensus with the FSB on clause 38.

Clause 99 then contained some technical consequential amendments, because clause 99(2)(f) was now removed following the further discussions with the FSB. There was also a textual amendment to improve language.

Clause 106 was a correction of a language mistake, and clause 115 contained a technical change of date.

The remainder of the amendments were reflected in the Schedule. Numbers 1 to 9 were technical in nature, amending the dates. Number 10 was substantive, because the Promotion of Access to Information Act (PAIA) had been amended. However, it was noted later that there had been no provision inserted in respect of private bodies. The private and public body provisions mirrored each other. This was intended to bring the Bill in line with sister provisions relating to public bodies.

Numbers 11 to 25 were again technical amendments, replacing dates. In some cases, the punctuation also needed to be corrected.

Discussion
Ms Schäfer was intrigued as to how the Department had managed to convince the FSB on clause 72.

Mr du Preez said that the Department and FSB had met on various occasions and had gone through the practical implications of each of the provisions, looking at their functions, how they exchanged information, and what instruments they used. The Department was able to convince the FSB that clause 72 did already cater for the FSB concerns. However, the parties were unable to reach agreement on clause 38, but the Select Committee had made its decision to accept the clause as passed by the NA, with the exception of the corrected reference to clause 11(3) and (4).

Mr Swart noted the insertion of the phrase “biometric information” and asked if that was in line with the Criminal Procedure Amendment Bill (DNA Bill) currently being processed before he Portfolio Committee on Police.

Mr du Preez said that the DNA legislation was covered by clause 6 of this Bill. Clause 6 of this Bill said that it would not have application to the processing of personal information by or on behalf of a public body, the purpose of which was the prevention or detection of crime. However, there was an important caveat that adequate safeguards must be established by other legislation. A decision whether there were adequate safeguards could be disputed in future, and that was one aspect to bear in mind. The drafters had specifically considered the DNA Bill as a “backup provision”, but he emphasised that clause 6 noted that this Bill was restricted to private bodies who applied, or where information was processed once it had been obtained in accordance with the law.

Mr du Preez asked for permission to bring two other issues to the attention of the Committee. The heading to clause 19 did not really provide an accurate description of the content, and he asked that more correct wording be inserted, as an administrative correction, when the D-version of the Bill was prepared.

Mr du Preez also pointed out, and apologised for, some technical errors in the Memorandum on the Objects, which he would like to have corrected in the same way. These included incorrect numbering, reference to an incorrect clause number, and a reference still to “information principles”. They needed to be corrected to do full justice to the Bill.

Ms Smuts thought there was no objection to this.

Ms Smuts noted that the Committee had started working on the Bill in 2009, and that a technical task team had been appointed, comprising of the Chairperson, Mr Jeffrey, herself and with sporadic attendance by Dr M Oriani-Ambrosini. She wanted to express her appreciation of the substantial input, throughout the process, particularly of Mr du Preez and Ms Ananda Louw, but also of Mr Sisa Makabeni. There were nine different working versions of this Bill created before it even came to the full Committee. Her thanks and congratulations were due to Mr du Preez and Ms Louw for their indefatigable work and great input throughout the process. Ms Louw was certainly an expert on data protection, and she hoped that this expertise would continue to be of benefit to the country. She appreciated all the hard work they had put in.

The Chairperson agreed that a lot of hard work had gone into this Bill, and echoed Ms Smuts’ appreciation for the Department’s assistance.

Ms Smuts also noted the assistance, given voluntarily, of Mr Mark Heyink, an IT expert and attorney who remained part of the process until today, and she wanted to thank him also for his great contribution.

The Chairperson said that at some point he would be curious to hear views how the recent revelations on security of electronic systems might impact on this Bill. The Committee may need to revisit at some point what it had done here. He was not sure to what extent this Bill regulated what the service providers were required to do. He asked Committee Members to think about the point; he was not calling for responses immediately.

The Chairperson also said that the remainder of the Committee fully concurred with Ms Smuts’ appreciation of the work done by the Department.

Mr du Preez, with concurrence from Ms Ananda Louw, said that he had regarded it as an honour and privilege to work not only with the full Committee, but also with Mr Jeffrey, and his technical committee. He had huge admiration for the tireless manner in which the Committee had approached its task.

The Chairperson noted the agreement of Members that they would vote formally on the changes to the Bill on the following day.

Mr du Preez asked that the Committee Secretary advise the Department whether all amendments were approved, so that the drafters could then work, as soon as possible, on the C-and D-versions.

Ms Smuts stressed that this Bill must go to the House as soon as possible. This law had been very long in the making. The private sector knew that it would have to make changes; there were cost and other implications as to how they would look after their information, but the sector had nonetheless dragged its feet, and the sooner this was promulgated, the better, to promote security of electronic systems and protect the personal information of South Africans.

South African Human Rights Commission: shortlisting of candidates
The Chairperson suggested that it was not necessary to deal with this topic today, but asked Members to agree on a date when all parties would submit their suggested shortlist of candidates to be interviewed for the vacancy on the South African Human Rights Commission (SAHRC).

Ms Smuts said she had thought that the Committee would be attending to drawing a shortlist today, and asked that if Members had prepared lists, they be presented, to check how far they concurred.

Ms Schäfer thought that the Committee was waiting for a response as to how many positions needed to be filled, and the budget.

The Chairperson said that he had spoken to the Deputy Minister on that point. There was no budget for an additional Commissioner, but the Department still had to persuade National Treasury, and was in ongoing discussions with Treasury, of the need for more than one appointment. However, pending the budget approval, this Committee could make only one appointment, to replace the deceased commissioner.

Ms Smuts proposed that only one should then be appointed, but said that there was some urgency as the SAHRC was struggling without that replacement.

Ms Pilane-Majake supported the suggestion to appoint only one commissioner for the moment, and said that a date, and the number of suggestions for shortlisting, should be set.

Mr Sibanyoni felt that the suggested names should be presented later.

Ms Smuts indicated that the opposition parties had prepared their shortlist many weeks ago and asked when the names could be presented.

The Chairperson indicated that the names would be presented on the following day.

Ms Schäfer suggested that the proposed shortlists of names be exchanged by the parties on the following day, so that only those relevant CVs would then be brought to the next meeting for discussion.

The Chairperson agreed, and said that Members would need to agree how many candidates to shortlist, agree on the shortlist and then invite all candidates for interview.

Public Protector: Allegations of maladministration
The Chairperson said that the matters raised by the allegations against the Public Protector had been on the table for some time. Many of those staff making the allegations had wanted to remain anonymous, which created problems. Recently, the Committee had also received some other documents, with signatures, which would be distributed to all Members .

Mr Vhonani Ramaano, Committee Secretary, said that the new e-mails were not related to the previous allegations.

The Chairperson said that there were then two issues; the new allegations and what was already before the Committee.

Mr Swart said that in respect of the new allegations, the Public Protector had to be given the opportunity to comment.

Ms Schäfer agreed, noting that the former Deputy Public Protector had been given the opportunity to address the Committee, and it was right that the Public Protector, Ms Thuli Madonsela, be given the same opportunity, but she noted that she should be told what issues needed comment, since the specific issues that the Committee felt were important would have to be addressed, but excluding issues of management style.

Ms Pilane-Majake supported the idea that the Public Protector should be asked to address the Committee, in line with the opportunity given to the former Deputy Public Protector. However, she noted that at some point it had been noted that this Committee did not have the capacity to look into all the issues, and so she felt that this Committee must not interrogate the Public Protector, but consider, and decide, how it must deal with the matter from there.

Ms Schäfer suggested that all Members submit a list of issues which they felt it was necessary to address.

Ms Smuts asked why the whole process was taking so long, and asked specifically who on the Committee was not ready to deal with the matter. She knew that she, and some other Members, already knew what issues should be raised.

Adv Adams cautioned that the Committee should consider carefully what precedent it was setting, especially in relation to grievances raised by staff. She believed that within the Office of the Public Protector, there should be a staff grievance procedure. She was worried that this might be setting the wrong precedent for possible future issues.

Mr Sibanyoni emphasised that this whole enquiry was done at the request of Ms Madonsela herself, who had requested the Speaker to look at the allegations, after which they had been referred to this Committee. He agreed fully that Ms Madonsela should be given the opportunity to respond on the issues raised by the former Deputy Public Protector and others. 

Ms Schäfer agreed that the specific issues relating to staff grievances should not be interrogated by this Committee, but it was necessary to consider whether there was in fact some other process in place to deal with these issues. Not all the staff of the Office of the Public Protector fell under the Public Service, and there may not be other alternatives. That point had been raised before. In addition, however, the Committee had decided that the Public Protector should be asked for comment about appointments, tenders and financial irregularities. She thought that it might well be appropriate to refer the financial questions to the Auditor-General (AG) but the Committee would have to make a final decision on that point.

Ms Smuts suggested that the Office on Institutions Supporting Democracy (OISD) should be playing a more proactive role for future problems. This was not the first round of complaints that the Committee had received. Some Public Protector staff members were members of the public service, although they worked for a constitutional institution that was accountable to this Committee.

Ms Pilane-Majake felt it was unwise for this Committee to start going into the allegations and interrogate them in depth. There had been many delays and a mechanism had to be found to finalise the matter. She agreed that it was possible that the Committee, after consideration, may decide that the AG or even the Speaker’s Office be asked to take matters forward. She reiterated her agreement that the Public Protector must nonetheless be asked to respond on the allegations.

Ms Schäfer said that direct answers were needed to some allegations, and the Public Protector should be given advance notice of those, which would include complaints by the former Deputy Public Protector. It was possible that Ms Madonsela may have dealt with some of the matters already, within the organisation, and some matters may need to be referred to other bodies.

Ms Pilane-Majake thought it preferable not to pick some matters for comment, but exclude others, particularly given the Committee’s concerns that it did not have the capacity to deal with issues itself. Some of the matters raised by the former Deputy Public Protector, such as the allegations concerning the involvement of the Chief Executive Officer (CEO) were considered more important than others, but she remained convinced that these matters must still be investigated elsewhere, not within the Committee.

Ms Shope-Sithole noted that the parliamentary committees had responsibilities for law-making, oversight and public participation. This Committee had a responsibility, as part of its oversight, to hold those people using state money fully accountable. The Committee could decide, having considered the issues, to ask another institution to investigate further, but it could not dodge its responsibilities on oversight.

Mr Swart reminded Members that some issues had already been referred for further investigation to the South African Police Service, and said the Committee should obtain feedback on those. He agreed that the Committee must exercise oversight, and that the Public Protector must be given the opportunity to respond to the allegations. The next step was crucial. He agreed that this Committee could not investigate and make factual findings. It would be likely to make general recommendations – for instance, as to how the OSID should deal with matters – but it was important to bear in mind that it was not a tribunal that could cross-examine, or make findings. The Committee was giving the Public Protector the opportunity to address the Committee since she had brought the whole matter to the attention of Parliament, and it needed to be taken forward. It could well be opportune for the AG to make recommendations on accounting issues, but other bodies might need, for example, to investigate factual issues or criminality. He fully agreed that the Committee did not have the capacity, but it was necessary to address the matter because of the possible lacunae.

Mr Sibanyoni asked what would be done about staff members who had submitted their grievances anonymously. Perhaps they needed to approach he Chairperson in confidence, or with an assurance of some kind of protection.

The Chairperson agreed that this Committee was not a tribunal and could not pretend to have the capacity. He raised the point that although these complaints had emanated from staff, it might be possible that other complaints might be raised by the public, and asked how then the Committee would deal with those. The anonymous complaints posed a problem. The Public Protector would be perfectly entitled to call for details if she was asked to comment on those allegations, and without divulging those, they could be taken no further. In fairness to the OISD, it had already attempted to crystallize the matter, which were, essentially, non-compliance with policy with regard to overseas travel and transfer of staff, a lack of clear demarcation of roles between the Deputy Public Protector and CEO, inadequate delegation of resources to the Deputy Public Protector, questionable internal controls (because the governance integrity committee and executive committee were not taken seriously), and fruitless expenditure (the Ayeni Report). There were also allegations against the CEO which were presently being dealt with by the National Prosecuting Authority (NPA) so there was nothing that the Committee could say or do about those at present, other than enquiring about the progress or time frames.

Ms Schäfer added that, in addition to the matters summarised by OISD, she had been concerned about allegations around appointment of senior staff, who had been previously suspended from previous employment and who did not disclose crucial information. She was also concerned with allegations of inflated tenders. She wanted to know what mechanism was in place for staff complaints. There were also allegations that the office of the Public Protector in Kimberley was receiving bribes from the DA, and a full response was needed on that.

Mr Swart said that it seemed that many of the issues were related to labour law and he asked that the researchers could possibly look into how some staff, at least, may be covered by the grievance procedures set out elsewhere.

The Chairperson said that if this was so, then it was important that the relevant staff be made aware of the processes to be followed. That would isolate whether there was a lacuna in relation to staff grievances.

Ms Shope-Sithole agreed that more information was needed about the irregular tenders and the financial issues.

The Chairperson cautioned that if questions of tenders were raised, there was a need for this Committee to be specific and say which tenders were alleged to have been awarded irregularly.

Ms Christine Silkstone, Committee Content Adviser, said that appointment of consultants was another point that had been raised, specifically that one of the consultants appointed was related to the Chief Executive Officer.

Adv Nonkusi Cetywayo, Head, OISD, said that at the last meeting these issues were raised, which formed the basis of the OISD summary. The Committee had also made the point at an earlier meeting that it was not an investigative body, but was to gather information, and submit a report to the National Assembly, who would have to take a resolution on whether, for instance, to commission the AG or any other structure to do a thorough investigation. The report of that other body would then come back to Parliament, who would then exercise its oversight responsibility At this point, the Committee was dealing with a letter referred by the Speaker to the Committee, to gather information and compile a report for consideration by the House. She agreed that the Committee’s function was not to interrogate evidence, but merely to gather information.

She added that the Committee had also mentioned earlier that it may wish to ascertain whether there were internal complaint mechanisms, so that the issue of anonymous letters could be properly addressed.

The Chairperson summarised that, in addition to what the OISD had set out, the issues of appointment of Molefe and Mthethwa would have to be clarified, that the question of how internal complaints were dealt with was to be explained, including what process would be followed if there were complaints against the CEO and Public Protector herself. The allegations on the Kimberley office would need comment, for if there had been acceptance of bribes, this would be a criminal offence, and the appointment of a consultant allegedly related to the CEO would be included in the matters on which Ms Madonsela would need to address the Committee.

Ms Schäfer added that in relation to Molefe and Mthethwa, security vetting of these individuals and other staff was raised, and this too must be clarified.

The Chairperson said to Mr Sibanyoni that he did not know how the Committee could deal with the anonymous complaints. This Committee was not a law-enforcement body, and did not have capacity to investigate. Another process might be able to go into this in more depth. He asked if OISD agreed that there was a gap.

Ms Cetywayo said that this Committee was a political structure and its members were mandated with certain functions. The OISD was geared more to Parliamentary services and acted as support to MPs. The decisions would have to be taken by the Committee, perhaps with advice from the OISD (which did not have to be accepted by the Committee) from a technical viewpoint, on how to move forward. She stressed that the Committee was gathering information from the Public Protector rather than investigating.

The Chairperson noted that Ms Madonsela had indicated that she would be available on 2 August. That date was agreed upon for her to address the Committee.

Legal Practice Bill: process
The Members discussed briefly the way in which the Legal Practice Bill would be handled over the next few days. The Bar Council and Law Society of South Africa (LSSA) had written again to the Committee. Adv Adams requested copies of the letters. Ms Smuts noted that the LSSA appeared to be under the impression that it was entitled to make more submissions and was concerned about “decisions” on some points. The Chairperson noted that the Committee was quite entitled to make decisions now without consulting further, although in fact no formal decisions had been taken. The Committee would, on the following day, receive feedback on the issues that the Department had been asked to research further, and go through the remainder of the responses then decide how to tackle the issues.

Private Members’ Bills
Ms Smuts wanted to give formal notice to this Committee of two private members’ bills that members of her party would be bringing. One concerned the appointment mechanism for the National Director of Public Prosecutions and the independence of the NPA (a point that she had raised continuously as a concern) and the other related to the composition of the Judicial Service Commission and the criteria that it applied, which would draw on the National Development Plan and ideas that it postulated.

Both would be constitutional amendment bills. Each had gone to the provincial legislatures for thirty days, for comment. The NPA bill deadline for comment had already passed, and it would be brought as the Constitutional 18^th Amendment Bill. It would be referred to this Committee, so she was giving advance warning as a matter of courtesy to Members.

The JSC amendment was to be the Constitution 19^th Amendment Bill, but it was still with the provincial legislatures at this stage. The NCOP would have to deal with this one slightly differently, but she anticipated that the bills were likely to come to this Committee before the end of this quarter. The more expeditiously this Committee could deal with them, the better. She suggested that Members could wait until they were formally introduced, or, if they preferred, she would arrange for advance electronic copies to be circulated, via the Committee Secretary.

The Chairperson suggested that it would be useful to get electronic copies.

The meeting was adjourned.