Critical Infrastructure Protection Bill: deliberations

Meeting report

The Chairperson indicated that the purpose of the meeting was firstly to get a legal opinion from the Parliamentary Legal Advisor in regard to the classification of the Critical Infrastructure Protection Bill [B22-2017], as this was still a contentious issue. The Committee would also allow the legal drafting team to respond to the submission made by South African National Editors’ Forum (SANEF).

Briefing by Parliamentary Legal Adviser

Mr Nathi Mjenxane, Parliamentary Legal Advisor, said that the Critical Infrastructure Protection Bill had been introduced as a proposed section 75 Bill. In terms of the Joint Role 160(1), when a Bill was introduced it had to be referred to the Joint Tagging Mechanism (JTM) for classification. A Bill must be classified as section 74, section 75, section 76 or section 77.  The test for the classification of a bill was set out in the Constitutional Court judgment of Tongoane and Other versus National Minister for Agriculture and Land Affairs and Others. The Bill was technical in nature and it did not amount to a constitutional amendment, nor did it contain any provision to which procedures of section 76 of the Constitution applied, as its provisions did not in a substantial measure affect matters that affected provinces. Even though the Bill made use of words such as “provincial disaster management centre” and “municipal disaster management centre,” it did not substantially affect the provinces.

He was in agreement with the State Law Advisor (SLA) that the Bill should be classified and processed as a section 75 Bill. There was also an agreement with the SLA that the Bill did not contain any provisions pertaining to customary law or customs of traditional communities. Therefore, the Bill did not have to be referred to the National House of Traditional Leaders in terms of section 18(1) (a) of the Traditional Leadership and Governance Framework Act 41 of 2003.

Discussion

Ms D Kohler Barnard (DA) asked if there was any province that had requested that the Bill should be classified as section 76, as the Bill clearly had an impact on provinces. It would also be important to ascertain whether there was an appeal process in place if a particular province was against the decision to classify the Bill under section 75.

Mr Z Mbhele (DA) commented that the contention on the classification seemed to be on the statement that concluded that the tagging process, insofar as determining whether section 76 applied, was based on qualitative and quantitative materiality of the intrusion. The qualitative dimension was the one that had the potential to create ambiguity. There was indeed a consideration that words such as “provincial disaster management centre” and “municipal disaster management centre” were not necessary grounds for section 76 tagging, but there should be a substantial impact on provinces. However, there was a need to be cautious, as there was a very deliberate thinking and intention behind having different spheres of government, all of them enjoying a great degree of autonomy. This was partly so that one could reflect on the local level desires of the electorate, but also to create different test platforms for different policies and approaches and see which one that had the potential to yield the best outcomes. The Western Cape Disaster Management had been the trail-blazer and benchmark setter in many practices, and therefore there was a potential risk constraint that could be imposed by legislation of this nature. It was clear that this tagging issue would still be a cause of great debate when the Bill moved to the National Council of Provinces (NCOP), as the Western Cape delegation would certainly have a lot to say.

The Chairperson wanted to know whether it was indeed correct that political parties had three days to object or to raise issues with regard to classification when a bill was published under ATC. It was unclear if there were any political parties that had objected or raised issues in relation to the tagging of the Bill.

Mr Mjenxane responded that the decision of the JTM on the classification of the Bill was final and binding on both the Houses of Parliament. The objection of the political parties to the classification of the Bill would also be bound by the final decision that would be taken by the JTM. There was an appeal process in place, and the matter could be brought before the Committee. The Committee could also approach the Speaker and state that the decision needed to be reconsidered. There should be strong legal base for why the Committee believed that the classification of the Bill should be reconsidered and why the JTM had misdirected the decision. A person could also take the matter to court for the review of the decision by the JTM. The JTM was the one taking the decision on the classification of the Bill, and this was where there was a consideration of the substantive measure in which provinces were affected by the Bill. Members of the public did not make submissions to the JTM, as it was only Members of Parliament who could make a submission to the JTC within the three days. There was no record of any Member of Parliament or any political party that had filed a consideration or appeal on the matter to be considered by the JTM.

The Chairperson believed that the Bill should be classified under the section 75 route, and this was based on the input that had been made today by the Parliamentary Legal Advisor. The Committee would look into the opposing views in regard to the classification of the Bill.

Mr Mbhele requested that the Committee should consider the minority view of the DA and that the party was opposed to the decision to classify the Bill under section 75, as section 76 was the appropriate route to be taken. 

Mr P Mhlongo (EFF) said that the EFF was a party that strongly believed in a very powerful central government and was therefore completely opposed to the federal system. The federal outlook of the Constitution seemed to be hampering the object of government. The Bill should be classified under section 75, as this was the appropriate route. The tragedy of Life Esidimeni was one example where the Minister of Health could not interfere in the matter because of the provincial powers. There should still be clarity on the funding for provinces.

Ms M Molebatsi (ANC) agreed that the Bill should be classified under section 75, as this was a comfortable and appropriate route. It was unclear as to why the Parliamentary Legal Advisor had  specific reference to the Joint Rules when the Committee was in the National Assembly.                  

Mr Mjenxane replied that the reference to the Joint Rules was on the classification of the Bill, and this was a Joint Tagging Mechanism committee decision which had been formed from Members of the National Assembly and the NCOP. 

The Chairperson indicated that the Committee was still to look into the issue of the classification of the Bill, as this was a contentious issue.

Legal Drafting Team: Response to Submission by SANEF

Brigadier Bert van der Walt, Section Head: Legal Support, South African Police Service (SAPS), said that the main bone of contention from the South African National Editors’ Forum (SANEF) was that the Bill limited the freedom of expression, especially in relation to the work that was conducted by journalists. It was the obligation of South Africa to protect the rights in regard to the freedom of expression. The Bill did not limit freedom of expression but prohibited the disclosure of security measures at the critical infrastructure. It could hardly be argued that the protection of security of critical infrastructure from disclosure was not a legitimate government interest. The Promotion of Access to Information Act (PAIA) provided a mechanism through which journalists may access information regarding critical infrastructure. The Right2Know Campaign versus the Minister of Police judgment was a perfect example of how PAIA operated in favour of the interested party.

There was a concern by SANEF that the private sector was business-oriented and excluded civil society members from serving on the Council. The intention of the Bill was certainly not to exclude persons from outside parties, including civil society members, from serving on the Council. The submission by SANEF was sound, as the drafting team would take into consideration the proposal to include outside parties to serve on the Council.

Brig Van der Walt indicated that SANEF was also concerned that the Bill placed a limitation on the freedom of expression. The drafting team had not really responded to the issue, as there was already a decision to completely overhaul clause 26, especially in regard to the penalties to be imposed. It must be mentioned that there was currently no control in place on who was a journalist and who was not. Some other countries required journalists to be registered. The whole issue of journalism was very dynamic and this needed to be taken into consideration.

Discussion

Mr Mbhele asked if the Committee had managed to receive the SANEF and South Africa Broadcasting Corporation (SABC) submissions, as the submissions were not clearly distinguished.

The Chairperson clarified that there was no separate SABC submission, but the SANEF submission included that of the SABC. The main change based on the proposal made by SANEF was the appointment of outside members. This was important, as it included members other than the Executive.

Ms Kohler Barnard said that journalists might not be registered as journalists in legal terms, but they were employed by various media companies and were considered as journalists by those companies. It was the decision of the courts to decide on the legality of journalists to be considered as journalists.

The Chairperson mentioned that Members were still allowed to make proposals on the issues flagged by SANEF during the clause-by-clause deliberations. The Committee would now deliberate on the Bill clause-by-clause. 

Clause-by-Clause deliberation

Chapter 1: Definitions, Purpose and Application of Act

Clause 1

Mr Mhlongo asked if the definition of the Private Security Industry Regulatory Authority (PSIRA) was in terms of section 2(1) or section 21(1) of the Private Security Industry Regulation Act, 2001 (Act No.56 of 2001).

Brigadier Van Der Walt responded that this was making reference to section 2(1), and not to section 21(1).                                                       

Chapter 2: Critical Infrastructure Council and Structures

Clause 4 

Mr Mhlongo wanted to know if there would be a specific committee formed by the National Assembly (NA) for the Council.

Ms Kohler Barnard asked about the procedure to be followed if someone happened to resign from the five members in the Council under the “A List” appointed by the Minister, while there was no one from the “B List” because of unexpected retirement or resignation.

The Chairperson said this was an important question as there needed to be a seamless process if there was a potential vacancy or departure.

Brig Van der Walt said that the Minister may request the National Assembly to submit the list of names whenever there was a vacancy in place, so there could be an updated list from time to time. There were five people required in the “A List” and five people in the “B List”.

Mr Mbhele said that the Independent Police Investigative Directorate (IPID) Act was clear that it was the Committee that nominated members to be appointed by the Minister. This was in contrast to the South African Police Service (SAPS) Act as amended, where it was not specified which committee was to be responsible for the nomination of members. The contention was whether it was the Portfolio Committee on Police or an ad hoc committee. The general procedure was that it should be this Committee that was able to facilitate this process, and therefore there should be some explanation to keep this open-ended.

Ms Kohler Barnard commented that she was always uncomfortable with cases where members of the Executive sometimes got to determine who should be the chairperson of these committees.

Brig Van der Walt responded that some of the questions that had been asked by Members would be answered in the process that was being undertaken of dealing with the Bill on a clause-by-clause basis.

The Chairperson noted that the general consensus was that the name of the Committee should be clearly expressed in the Bill.

Brig Van der Walt said that it was entirely up to Members to make a decision on how the Bill should be worded, but it was a standard practice not to name the specific committee in the Bill.

Mr Mbhele indicated that the IPID Act only made reference to the relevant Parliamentary committees as the ones responsible for the nomination of members.

Brig Van der Walt explained that the standard procedure was for the nomination process to go through the relevant Parliamentary committee.

Mr Mjenxane responded that the decision of the Committee got finalised at the House level and therefore that nomination and recommendation of members by the Committee would then be the official position of National Assembly.

Mr Mhlongo said that it was better to say the “relevant parliamentary committee,” as there was a potential abuse of power when a clause remained open-ended.

Brig Van der Walt said that the proposal by Mr Mhlongo would be taken into consideration.

Clause 4 (4)

Mr Mhlongo expressed concern that the Department of Defence had been excluded completely from the Bill, as they handled their own infrastructure protection arrangement and therefore there were no merits and grounds for them to be included in the Council. The inclusion of the Department of Home Affairs (DHA) also seemed to be a bit odd.

Brig Van der Walt replied that the DHA was in the Council precisely because it was part of the security cluster. The opinion of the drafting team was that the DHA could easily be deleted from the list. The Department of Defence played a key role in the protection of critical infrastructure and therefore they formed part of the joint operation with SAPS.

Mr Mbhele said that the intention was for the Council to be a “lean machine,” and therefore there was no clear reason why the Department of Defence and the DHA needed to be in the list of members to serve on the Council.

Mr Mhlongo said that it made a lot of sense for the Department of Defence and the DHA to be present in the Council, as the defence force was the last line of security and defence for any country.

Ms M Molebatsi (ANC) also concurred that the Department of Defence and the DHA needed to be present in the Council.

The Chairperson commented that there was a need for all core government departments to be present in the Council so that there was widespread representation.

Clause 4 (7)

Ms Kohler Barnard expressed concern about the amount of time it usually took for the issuing of security clearances. There should be a legislated timeframe for the finalisation of the security clearance so that this process was being fast-tracked.

Mr Mbhele said that the general agreement was that there were 20 members to be short-listed to serve in the Council, while clause 4 (7) (b) was making a specific reference that the National Assembly must compile a shortlist of not more than 20 persons. The concern was that there was a maximum number of people to be short-listed, while there was an exclusion of the minimum number required. There should be an inclusion of the minimum candidates to be short-listed.

Brig Van der Walt responded that the proposal by Mr Mbhele had been taken into consideration and the Committee could provide guidance on how this should be worded and drafted in the Bill.

The Chairperson reminded the Committee that SANEF had made a proposal that there should be a consideration of members from a broad background, including civil society. The members of the civil society would also need to be subjected to all the requirements to serve on the Council, as they were not just there to rubber stamp the decisions of the Council.

Ms Kohler Barnard also agreed with the suggestion by the Chairperson, as there was a need to include members from different backgrounds, including civil society and technocrats.

Brig Van der Walt reiterated that the Committee would provide guidance in this regard.

Mr Mbhele said that he was still ambivalent as to whether there was a concrete and valid reason for the permanent inclusion of civil society in the Council, considering that it needed to be as lean as possible and efficient. The actual Council itself should be kept technical with technocrats, and the broad range of voices could be considered through consultation and established ad hoc committees.

Mr Mhlongo said that it would be unfair to require only people who were technocrats to serve on the Council, as there was a need to consider people from widely different backgrounds. There was a need to look at a whole range of issues besides just the identification of the critical infrastructure, including the rights of people.

The Chairperson said that there was a need to have people with a technical component on the Council, but civil society should also be taken into consideration in terms of promoting good governance. The issue of expertise was critically important, and therefore one needed to appoint people who were experts in different subjects.

Brig Van der Walt noted the proposal that had been made by Members and said this would be taken into consideration in the amendments to be made.

Clause 6

Funding and Remuneration

Ms Kohler Barnard believed that the Civilian Secretariat for Police (CSP) did not have enough funds to fund the Bill, and this needed to be made clear.

The Chairperson explained that Ms Kohler Barnard might not have been present at the meeting last week where the Secretariat had briefed on the funding for the Bill, and this was where it had been made clear on how the Council would be funded.

Brig Van der Walt said that the CSP would not be allowed to use the funds budgeted for the remuneration of the members in the Council for purposes other than remuneration.

Adv Dawn Bell, Chief Director: Legislation; CSP, added that the Secretariat had indeed explained in-depth to the Committee last week how the Council would be funded, including the remuneration to be paid to members of the Council. There was even a breakdown on how this money would be dispersed. The amount of money budgeted for was even less than the amount of money that was anticipated.

Clause 7

Functions of the Council

Mr Mbhele asked if there was any reason why one of the information categories to be included in the report was not the names of the declared critical infrastructure, as there was a provision for the number of declarations and this was also included in the SAPS annual report.

Brig Van der Walt responded that there was a provision in the Bill that any declared critical infrastructure must be published in the Government Gazette. The National Commissioner also had a duty to keep the register of all critical infrastructure, and this information would be made available on the website.

Clause 8

Meetings of the Council

Ms Molebatsi asked what would happen if there were fewer than three Council members who requested a special meeting.

Brig Van der Walt replied that if there was request by fewer than three members to have a meeting, then the chairperson may hold the meeting, but if there were three members, then the chairperson had to convene the meeting.

Clause 13

Exemption of Certain Persons

Mr Mbhele asked whether clause 12(2) made a specific reference to the government department or the organ of state. This was to avoid any potential loophole.

Brig Van der Walt responded that the phrase “organ of state” would also include government departments. The reason to use the phrase “organ of state” was to include entities like PSIRA or the National Nuclear Regulator.

Mr Mbhele noted the clarification made.

Chapter 3: Declaration of Critical Infrastructure and Determination of Critical Infrastructure Complex

Clause 18

Applications by Person in Control

Mr Mbhele commented that clause 18(3)(a) was constraining the importance of transparency interest in relation to the critical infrastructure arena. The factors that would condition the eligibility of that exemption from the Government Gazette were also problematic. There was a potential for political abuse to hide “dodgy conduct” from scrutiny.

Brig Van der Walt explained that clause 18 had been redrafted to give effect to the Eskom submission, where they had made a point that there were instances where it would not be in the public interest to publish the particulars of a person when they made an application for the declaration of critical infrastructure. There was indeed a concern that this could lead to potential abuse, and this must be taken into consideration.

Mr Mbhele added that the reason for the need for the publication of the name and address of the critical infrastructure was to ensure that the residents within the area were aware of the critical infrastructure and regulations to be adhered to. There could be no valid reason why one could not publish particulars of a person when making an application for the declaration of critical infrastructure.

Mr Mhlongo said that the publication of the details of the critical infrastructure had the potential to compromise the security part. However, there was also a consideration of the danger of secrecy and how this could promote corruption and dodgy practices, as pointed out by Members. There should be an oversight committee of vetted individuals to hold the Council accountable.  There was a need to promote good governance and avoid the situation where people used secrecy in order to advance their own “dirty agenda”.

Adv Bell replied that the matter had been discussed a length at the National Economic Development and Labour Council (NEDLAC), and they had also wanted certain critical infrastructure to remain secret and not to be published in the Government Gazette. 

Brig Van der Walt said that currently the National Commissioner was the one to make a decision on the publication of the particulars of critical infrastructure. The Council should be in a better position to make a decision on the publication of the particulars of critical infrastructure.

Mr Mhlongo reiterated his concern about the potential danger of people who were involved in espionage if the country was to declare the particulars of all critical infrastructure in the Government Gazette.

Mr Mbhele asked about the underlying reason for clause 18 (16), as this sounded like it was trying to prevent people from making separate individual applications for different parts of infrastructure.

Brig Van der Walt responded that this was trying to clarify the practical issue that had been discovered in the National Key Points Act. There would be a separate physical security assessment for each part of the critical infrastructure, but also as a whole.

The Chairperson thanked the legal team for their hard work. Members would be given an opportunity to flag other issues that were still contentious. The Committee would now go through the B Bill to see if there were any contentious issues that still needed to be addressed.

Mr Mhlongo said it was confusing as to how it was possible to go through the “B Bill” while the proposed amendments that were made this morning had not been included.

Mr Mjenxane explained that all the amendments that had been adopted by the Committee would go to the “A list,” and the Committee should adopt these formally in order for them to be incorporated in the “B version” of the Bill.

The Chairperson said that the Committee did not have a logistical quorum to formally adopt the amendments.

Mr Mjenxane suggested that the amendments should be formally adopted so as to fast-track the process.

The Chairperson indicated that the option would be for the Committee to get updated amendments and then formally adopt the amendments tomorrow morning. In essence, the drafting team would take on board all the issues raised this morning, and then incorporate those amendments to be formally adopted.

The meeting was adjourned.