National Council of Provinces - 25 June 2002
TUESDAY, 25 JUNE 2002 __
PROCEEDINGS OF THE NATIONAL COUNCIL OF PROVINCES
____
The Council met at 14:06.
The Chairperson took the Chair and requested members to observe a moment of silence for prayers or meditation.
ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS - see col 000.
NOTICES OF MOTION
Mr B J MKHALIPHI: Chairperson, I give notice that I shall move at the next sitting of the House:
That the Council -
(1) notes with appreciation -
(a) the commendable work performed by the management, staff and
inmates of Carolina Prison;
(b) that the said prison prides itself on the remarkable record of
zero escapes, zero incidents of corruption and a decrease of
inmates' misdemeanours for the past 3 years; and
(c) that the conducive atmosphere around the prison enhances
effective rehabilitation and correction of inmates since
community involvement is always at its prime; and
(2) commends the management and staff for going the extra mile to ensure that the prison serves its purpose to the fullest.
ECONOMIC ADVANCEMENT OF WOMEN
(Draft Resolution)
Ms M P THEMBA: Chairperson, I move without notice:
That the Council - (1) recognises the positive steps that have already been taken by our government to create an environment conducive to the economic advancement of women;
(2) believes that, in order to further enhance the role of women in the process of development, increased participation by women in the economy is of cardinal importance;
(3) welcomes the latest initiative by the Department of Trade and Industry when it launched the South African Women Entrepreneurs Network (Sawen); and
(4) supports the call by the Deputy Minister of Trade and Industry for all stakeholders to join it and participate in the process of building women’s enterprises.
Motion agreed to in accordance with section 65 of the Constitution.
RELIEF TO STRUGGLING PALESTINIANS
(Draft Resolution) The CHIEF WHIP OF THE COUNCIL: Chairperson, I move without notice:
That the Council -
(1) notes -
(a) that a further consignment of food and medical equipment will be
dispatched today on a hired cargo plane for the relief of
struggling Palestinians;
(b) the role played by the Ministry of Foreign Affairs in ensuring
that the aid packages are safely delivered to the hospitals and
various refugee camps in the Palestinian territories; and
(c) that relief will also be provided for Christian Palestinians,
who are also affected by the Israeli occupation, and which will
be distributed by the Church of the Holy Nativity; and
(2) expresses its gratitude and thanks to organisations of South African civil society for the continued support of the Palestinian cause, notably -
(a) "Gift of the Givers";
(b) Islamic Medical Association of South Africa;
(c) Al-Aqsa Foundation - (South African Chapter);
(d) Crescent of Hope;
(e) representatives of the Muslim Clergy in Gauteng, KwaZulu-Natal
and the Western Cape; and
(f) The Call of Islam.
Motion agreed to in accordance with section 65 of the Constitution.
WOMEN DENIED ACCESS TO TERMINATION OF PREGNANCY
(Draft Resolution)
Ms L JACOBUS: Chairperson, I move without notice:
That the Council -
(1) notes with dismay that the young women admitted for terminations of pregnancy at the Philadelphia Hospital in Mpumalanga, as outlined in the Carte Blanche programme on Sunday, 23 June 2002, were denied the treatment this government fought hard for them to have access to;
(2) takes heart from statements to the media by both the MEC and the national Minister of Health condemning this kind of treatment of patients at state hospitals;
(3) encourages the Nursing Council to investigate this matter fully and apply the appropriate sanction to those nurses responsible for the gross neglect of these patients left in their professional care;
(4) condemns in the strongest possible terms the level of neglect reported, to the extent that patients were required to dispose of their own foetuses and clean and fix their own beds while still recuperating from treatment;
(5) notes that the provincial department, in its attempt to stop the broadcast, did so in an effort to protect the privacy and confidentiality of patients at Philadelphia Hospital, and not to condone in any way the gross violation of patients’ rights that occurred at this institution; and
(6) encourages the national Minister of Health and all her MECs to broaden the investigation currently intended for Philadelphia to other state hospitals dealing with terminations of pregnancy to ensure that all patients are treated with dignity and that their rights are upheld and protected.
Motion agreed to in accordance with section 65 of the Constitution.
MURDER OF FIVE PETROL ATTENDENTS
(Draft Resolution)
Mr P A MATTHEE: Chairperson, I move without notice:
That the Council -
(1) notes with great shock the murder in cold blood of five petrol attendants on Monday, 24 June 2002, at a service station in Grassy Park in the Western Cape;
(2) calls upon the South African Police Service to do everything within its power to apprehend those responsible for this act of barbarism;
(3) further calls upon service station owners to provide a secure environment for their employees; and
(4) conveys its deepest sympathy and condolences to the families of the deceased.
Motion agreed to in accordance with section 65 of the Constitution.
ABSENCE OF MEMBERS DUE TO ILLNESS
(Draft Resolution) The CHIEF WHIP OF THE COUNCIL: Chairperson, I move without notice: -
That the Council -
(1) notes the absence of the hon members Boyce Willem from the Eastern Cape and Rev M Chabaku from the Free State on account of illness;
(2) further notes that they are in the process of recuperation; and
(3) wishes them a swift and speedy recovery.
Motion agreed to in accordance with section 65 of the Constitution.
COMPLETION OF TASK BY THE AD HOC COMMITTEE ON POWERS AND PRIVILEGES OF PARLIAMENT
(Draft Resolution)
The CHIEF WHIP OF THE COUNCIL: Madam Chairperson, I move without notice: That, with reference to the resolution adopted by the Council on 6 November 2001, the Ad Hoc Committee on Powers and Privileges of Parliament is to complete its task by no later than 15 October 2002.
Motion agreed to in accordance with section 65 of the Constitution.
IMPLEMENTATION OF THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT BILL
(Consideration of Bill and of Report of Select Committee on Security and Constitutional Affairs thereon)
The MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Madam Chairperson, it gives me great pleasure to be able to talk about our country’s involvement and active participation in creating an international body in which persons accused of having committed acts which constitute gross human rights violations, which the community of peace-loving people and nations are no longer prepared to tolerate, will be tried.
On an international level, South Africa was one of the many nations which helped shape the Rome Statute of the International Criminal Court, a process that was preceded by lengthy and technical legal debates and sometimes tedious preparations for weeks on end.
This statute constitutes, I think, a good mix of ideas and legal concepts from all over the globe. On one level the statute prescribes how the International Criminal Court is to function. On another it also provides a framework on how the many countries throughout the world which are party to the statute, ought to interact with this court. States which have become signatories to this international instrument have committed themselves to eradicating and also punishing the worst forms of cruel human conduct imaginable, namely, the crime of genocide, crimes against humanity which, by the way, include the crime of apartheid, and war crimes.
I must add at this point that, although the statute also mentions the crime of aggression, this crime does not yet fall within the jurisdiction of the court. Article 5 of the statute provides that the court will only exercise jurisdiction over the crime of aggression once an acceptable definition in respect of this crime has been finalised. Once this has been done, I imagine, the legislation under discussion will have to be amended to include the crime of aggression.
From a domestic point of view, the Bill is also noteworthy. It constitutes the culmination of a lengthy and wholesome process. After the Rome Statute was adopted in 1998 at the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, a multisectoral committee was established to facilitate South Africa’s ratification of the statute and to prepare and promote South African legislation, enabling us to comply with our obligations set out in the statute.
Hon members will remember that this Parliament agreed to the ratification of the statute towards the end of the year 2000. I am pleased that we are now at the point of enacting our domestic legislation almost at the same time as the statute comes into operation. Article 126 of the statute provides that the statute will come into effect on the first day of the month after the 60th day following the date of the deposit of the 60th instrument of ratification with the Secretary-General of the United Nations. The date in question is Monday, 1 July 2002, that is a few days from today.
I have noted that the portfolio committee, in its report to the National Assembly, has requested the department to try to promulgate our legislation at the same time as the statute comes into effect. We shall do everything in our power to try to meet this deadline.
I would like to express a word of appreciation to this multisectoral committee for its work in facilitating the ratification of the statute and for preparing the International Criminal Court Bill which was introduced to Parliament. This Bill was originally shaped by the inputs of representatives of the Constitutional Court, namely Judge Richard Goldstone, the Supreme Court of Appeal through Judge Pierre Olivier, the Magistracy, the office of the National Director of Public Prosecutions, the Presidency, the South African Police Service, the South African Defence Force and the Intelligence Services, as well as the Departments of Home Affairs, Correctional Services, Foreign Affairs and my department. I must also thank the Select Committee on Security and Constitutional Affairs and the Portfolio Committee on Justice and Constitutional Development for their inputs which, as always, have added tremendous value.
I have very little time to say what I would like to say about this Bill. Allow me to highlight the aspects thereof which strike me as requiring particular attention. The Bill firstly emphasises South Africa’s obligation in the statute to prosecute in our own courts persons who have committed the three said crimes, and only when we as country, for some reason, decide not to prosecute, to surrender the perpetrators to the International Criminal Court if the court so requests. This is in line with the principle of complementarity which comes out strongly in the provisions of the statute, particularly the introductory provisions. By committing ourselves to prosecute perpetrators of these heinous and terrible crimes, we have had to create the crimes for purposes of our own domestic law. We have done this in the Bill by defining the crimes in the words of the statute. The conduct which constitutes the three crimes can be found to be neatly defined in Schedule 1 to the Bill.
Another noteworthy aspect of the proposed legislation is the fact that in certain circumstances a person can be prosecuted by our authorities in our own courts even if the crimes have been committed outside the borders of our country. Usually our courts, it will be remembered, only have jurisdiction to try cases where crimes are alleged to have been committed within our own borders.
This extraterritorial jurisdiction which has been conferred on our courts allows our authorities to act against persons who have committed any of the three crimes anywhere in the world in the following circumstances: One, if the crime has been committed against a South African citizen; two, if the crime has been committed against a person who is ordinarily resident in South Africa, but is not necessarily a South African citizen; three, if the perpetrator of the crime happens to be in South Africa after the commission of the crime; or four, if the perpetrator of the crime is a South African citizen or is a South African resident, but not necessarily a citizen.
This, I must add, is in line with what some other countries have done in their legislation. Canada is a good example. However, we have not gone as far as Belgium, which, I understand, has given the Belgian courts universal jurisdiction. Again I note that the portfolio committee has requested the department to explore this interesting option and revert to Parliament with its findings.
In conclusion, allow me to express the wish that this legislation is hardly ever applied in practice. This is one instance where we are legislating in the hope that the ensuing legislation will hardly ever be used. It is my hope that it will deter would-be perpetrators of these horrendous crimes from continuing with any devious plans they might have. If it does, however, have to be applied, I hope that it will be applied in such a way that society never has to contend with these perpetrators again. This legislation is a warning to them that they will be treated with the full force of the law and be dispatched to prison where they can languish for lengthy periods, if not for the rest of their lives. South Africa is making a statement: We are no haven for fugitives of this nature in particular. We have had our fair share of atrocities already. [Applause.]
Kgoshi M L MOKOENA: Chairperson, many countries believe strongly that there is no rule of law in Africa. They are saying that there is no respect for human dignity. When they think of Africa, they think of people always carrying guns, ready to shoot. They unfortunately cannot associate democracy with us. When they think of Africa, they only think of wars and coups d’état. The unfortunate part is that all countries in Africa are painted with the same brush. It is so because of the attitude of some leaders on our continent. Something must be done to prove these people wrong. Obviously, no press conference will make them change their attitude towards us. We can shout as loud as we want, but it is not going to change their attitude. The question is, why this perception?
Let us look at what happened in Burundi. Look again at what happened in Rwanda, and what about Somalia? Let us note again what happened in Angola, and note again what happened in the then Zaïre, which is now called the DRC. But let us be honest, genocide and war crimes did not take place only in Africa; they happened even on other continents. Some leaders used their positions to suppress opposing views. Those who challenged their leaders were wiped out. Some were killed simply because they belonged to different tribes. Some were maimed for committing minor crimes.
To make sure no leaders become power drunk, the implementation of the Rome Statute of the International Criminal Court Bill is the answer. It prohibits any head of state, a member of government or parliament, an elected representative or government official, a member of a security service or armed force to commit these crimes.
It sets out rules on how certain things are to be done, be they prosecution, sentencing or where trials are to be conducted. It also outlines how appeals can be lodged and defines how fines can be imposed and so forth. It creates a framework to ensure that the statute is effectively implemented in the Republic. It ensures that anything done in terms of the statute conforms with the obligation of the Republic.
If we implement this Bill, crimes of genocide, crimes against humanity and war crimes will be prevented. It gives our courts powers to try any person who is found guilty of committing the same crimes. Our courts can also adjudicate over cases brought against any person accused of committing a crime in the Republic, and beyond the borders of the Republic in certain circumstances. But whatever happens to South African citizens, will happen with the consent of the National Director of Public Prosecutions. By passing this Bill we are also agreeing to receive sentenced prisoners, as stated in clause 31 of the Bill. Questions were asked by members as to whether South Africa will be ready to receive sentenced prisoners, knowing very well that our prisons are overcrowded. I think here common sense will prevail. We are not obliged to simply receive them if there is no space for them. Those modalities and logistics will be well handled administratively.
We would like to call on all leaders on this continent, and even those beyond the shores of our continent, who are not yet ready to implement this statute, to do so before it is too late. By implementing this statute, they will be proving once and for all that they are practising what they preach. They should just prove their critics wrong. I know they will do it. Let us, with one voice, say that the Implementation of the Rome Statute of the International Criminal Court Bill is relevant to our country. It is the solution and the answer. South Africa says yes to this Bill. [Applause.]
Mr L G LEVER: Chairperson, the hon Kgoshi Mokoena conferred upon me the honour of tabling an amendment which the committee felt was desirable to move in respect of this Bill.
The amendment relates to clause 10 of the Bill, and in essence it really provides for certain procedures after a person has been arrested and comes before a magistrate, and the magistrate has to determine certain factual questions. In the original draft of the Bill it only allowed for the accused person, if I could used that description, to appeal. The amendment in essence allows for the prosecuting authority to also appeal. The committee feels that that would be appropriate and just in the circumstances. There is also a small technical amendment to Schedule 2.
Both the hon the Minister and the hon chairperson of the committee gave comprehensive speeches, and I am going to cut large sections from my speech. If my speech is disjointed as a result thereof, please accept my apologies, but in the interest of saving time I would rather curtail my speech.
The Implementation of the Rome Statute of the International Criminal Court Bill provides the legislative framework to implement the Rome Statute of the International Criminal Court within the Republic of South Africa. In the past illegitimate regimes sought to distinguish between two important concepts in order to retain their grasp on power. They sought to distinguish between law on the one hand and justice on the other. In point of fact, they never referred to justice as this was regarded as an inconvenient concept. They justified their actions, however unjust, on the basis that their actions were lawful.
For the countries that are signatories to the Rome Statute and that have ratified it, this type of defence or justification is no longer legitimate, if it ever was, for the crimes of apartheid, genocide, crimes against humanity and war crimes as defined in the statute.
South Africa, in conferring jurisdiction on our courts, has decided to go a little further than the Rome Statute requires, and since the hon the Minister set that out in detail I shall not go into it any more, but I should just note that we have gone further than the Act requires, and I believe that this is justified under the circumstances.
The next important concept that we need to note is that the Bill does not act retroactively, and only crimes that are committed subsequent to its enactment may be prosecuted. There is no statute of limitation on crimes as defined in the Rome Statute and for the purposes of this Bill, any crimes committed after its promulgation.
The Bill sets out the manner in which the South African judicial services will co-operate with the International Criminal Court. In enacting this Bill, we as a country take on a number of important obligations, but also commit ourselves to a standard of justice which we aspire to for all humanity. The DP supports this Bill. [Applause.]
Mnr P A MATTHEE: Voorsitter, soos die naam van hierdie wetsontwerp aandui, maak dit voorsiening vir die implementering van die Rome-statuut ten opsigte van ‘n internasionale straf- of kriminele hof, wat reeds op 17 Julie 1998 op ‘n VN-konferensie in Rome aanvaar is. Suid-Afrika is ook daar verteenwoordig.
Hierdie wetsontwerp is ‘n baie belangrike mylpaal in die wetgewende program van ná 1994 in hierdie Parlement, aangesien dit die internasionale rol van Suid-Afrika in die daarstelling van ‘n permanente, internasionale strafregstelsel herbevestig. Die Rome-statuut komplementeer die nasionale wetgewing van lande wat partye is tot die statuut in die vervolging van individue vir misdade van internasionale belang, naamlik volksmoord, misdade teen die mensdom en oorlogsmisdade. Pogings word steeds aangewend om ‘n aanvaarbare definisie te kry vir die misdaad van aggressie wat dan ingesluit sal word in die statuut.
Suid-Afrika het al reeds die Rome-statuut onderteken en, soos die Huis sal onthou, op 10 November 2000 bekragtig. Kragtens artikel 126 van die statuut tree dit egter eers in werking nadat die 60ste instrument van bekragtiging by die Sekretaris van die VN ingedien is. Sestig sodanige instrumente is dan nou reeds ingedien en die statuut tree in werking, soos aangedui, op 1 Julie 2002.
Die statuut kan egter nie in ons land in werking gestel word voordat dit deel is van ons nasionale reg nie, en is dan ook die doel van hierdie wetsontwerp. Die wetsontwerp maak voorsiening daarvoor dat enige persoon wat een van die gemelde misdade in Suid-Afrika gepleeg het, by skuldigbevinding gevonnis word tot ‘n boete of gevangenisstraf of beide, of selfs tot lewenslange gevangenisstraf. Soos wat die Minister reeds aangedui het, kan ons Hoër Hof se jurisdiksie ook uitgebrei word om misdade buite ons grense in te sluit indien dit gepleeg is deur ‘n Suid-Afrikaner of ‘n persoon wat normaalweg in Suid-Afrika woonagtig is, indien hy of sy in Suid- Afrika is of indien die misdaad teen ‘n Suid-Afrikaanse burger of inwoner gepleeg is.
Die Nuwe NP steun hierdie wetsontwerp, sowel as die wysiging daartoe, ten volle. Ons wil die vertroue uitspreek dat die Rome- statuut, en ook hierdie wetsontwerp wat ons vandag hier bespreek, ‘n voldoende internasionale afskrikmiddel sal wees …
Die VOORSITTER VAN DIE NRP: Orde! Agb lid, kan u asseblief in die mikrofoon praat?
Mnr P A MATTHEE: Ek vra om verskoning. Die Nuwe NP steun hierdie wetsontwerp en die wysiging, en spreek die vertroue uit dat die Rome- statuut en hierdie wetsontwerp ‘n voldoende internasionale afskrikmiddel sal wees vir enige persoon of groep persone, hoe magtig of hoe invloedryk hulle ook al in hul onderskeie lande mag wees, om nie enige van hierdie misdade wat reeds genoem is te pleeg nie. Ons wil ook die hoop uitspreek dat daardie lande wat nog nie hul weg oop gesien het om deel te wees van hierdie statuut en die daarstelling van ‘n internasionale strafhof nie, dit ook nou ernstig sal oorweeg om wel partye daartoe te word. [Applous.] (Translation of Afrikaans speech follows.)
[Mr P A MATTHEE: Chairperson, as the name of this Bill indicates, it provides for the implementation of the Rome Statute on an international judicial or criminal court which has already been adopted on 17 July 1998 at a UN conference in Rome. South Africa was also represented there.
This Bill is a very important milestone in the legislative programme in the era after 1994 in this Parliament since it reaffirms the international role of South Africa in the establishment of a permanent, international criminal justice system. The Rome Statute complements the national legislation of countries that are party to the statute as regards the prosecution of individuals accused of crimes of international concern, ie genocide, crimes against humanity and war crimes. Efforts are still being made to find an acceptable definition for the crime of aggression, which would then be incorporated in the statute.
South Africa has already signed the Rome Statute and, as the House will remember, ratified it on 10 November 2000. In terms of section 126 of the statute it will, however, only come into effect after the 60th instrument of ratification has been lodged with the Secretary of the UN. Sixty such instruments have now been lodged and the statute will come into effect, as indicated, on 1 July 2002.
However, the statute cannot be implemented in our country before it is part of our national law, and this then is the objective of this Bill. The Bill provides that any person who has committed any of the listed crimes in South Africa can on conviction be sentenced to a fine or imprisonment or both, or even to life-long imprisonment. As the Minister has already indicated, the jurisdiction of our Higher Court is also being extended to include crimes outside our borders if they were committed by a South African or a person normally domiciled in South Africa, should he or she be in South Africa, or if the crime was committed against a South African citizen or resident.
The New NP supports this Bill as well as its amendments wholeheartedly. We want to express the confidence that the Rome Statute, as well as this Bill that we are discussing here today, will be an adequate international deterrent …
The CHAIRPERSON OF THE NCOP: Order! Hon member, would you please speak into the microphone?
Mr P A MATTHEE: I apologise. The New NP supports this Bill and the amendment, and expresses the confidence that the Rome Statute and this Bill will be an adequate international deterrent any person or group of persons, regardless of how powerful or influential they may be in their respective countries, to commit any of these crimes to which reference has been made. We also want to express the hope that those countries that have not yet seen their way clear to become part of this statute and an international criminal court, will now also give serious consideration, in fact, to becoming a party to that. [Applause.]]
Mrs E N LUBIDLA: Madam Chair, hon Ministers and hon members, the purpose of this Bill is to implement in South Africa the Rome Statute of the International Criminal Court. The Rome Statute was adopted by 120 countries at an international diplomatic conference held in Rome in 1998 to establish a permanent international criminal court to end the culture of impunity that has allowed gross abusers of human rights to escape justice. As South Africans we are extremely proud to be counted among those countries that have introduced implementation legislation. This Bill will put South Africa at the forefront of making the International Criminal Court a reality. From the perspective of women, the most significant aspect of the Rome Statute is its provisions regarding women’s rights. Articles 7 and 8 in the Rome Statute define war crimes and crimes against humanity respectively, and include a subparagraph listing a broad spectrum of gender- specific crimes, including rape, sexual slavery, enforced prostitution, forced pregnancy and enforced sterilisation.
In addition to this list, two other gender-specific crimes are also mentioned under the heading: Crimes against humanity. The first is the crime of persecution against any identifiable group or collectivity on various grounds including gender. Secondly, the crime of enslavement is defined as the exercise of any power attaching the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.
These provisions on gender crimes are a historic development for women’s rights under international law. Previous international humanitarian law treaties failed to properly address sexual and gender violence. Neither the Hague Conventions,W respecting the laws and customs of war, nor the Nuremberg Chapter, contained in the agreement for the prosecution and punishment of major war criminals after World War II, included any mention of sexual violence.
This inadequate treatment in prior instruments was duplicated in the statutes of the two ad hoc tribunals which were set up for the prosecution of persons responsible for serious violations of international humanitarian law in the former Yugoslavia and Rwanda. This was despite the atrocities suffered by women in the recent conflicts in Bosnia and Rwanda.
By enacting this legislation, we are reaffirming our pledge to South Africans and the international community that we will never tolerate genocide and crimes against humanity, nor will we be a safe haven for those accused of committing such crimes.
The Bill will strengthen the legislative foundation for criminal prosecutions in South Africa and fortify the administration of justice of the International Criminal Court by making the institution a vital functioning entity in order to combat all violations of human rights, including those perpetuated against women and children. [Applause.]
The MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT: Chairperson, I want to thank all the hon members for what I consider to have been a very good debate on this statute. I note that it is joining a very interesting piece of legislation which this institution enacted in 1998, namely the Refugees Act, so that any person who is guilty of these offences will indeed no longer be able to seek a little corner in our country in which to hide on the basis that they are refugees.
In other words, by means of all these legal instruments, South Africa seeks to make her own contribution to any international efforts that are being made to combat these scourges. I want to underline that, because of our own experiences - as I have said, we have had our own unfair share of atrocities in the past - we are indeed committed to doing our bit in this neck of the woods.
I am also happy to note that this Bill, unlike the Bills regarding which I came to this House last week, has not caused as much tremor. I want to thank the hon members indeed. [Applause.]
Debate Concluded.
Bill, subject to proposed amendments, agreed to in accordance with section 75 of the Constitution.
ELECTRONIC COMMUNICATIONS AND TRANSACTIONS BILL
(Consideration of Bill and Report of Select Committee on Labour and Public Enterprises thereon)
The MINISTER OF COMMUNICATIONS: Chairperson, hon members of the House, the Bill before the House today is one that was passed by the National Assembly with the support of all political parties except one.
The importance of this Bill to the economy of this country cannot be overestimated. The debate around the issues covered by the Bill are followed throughout this continent, in fact, on the African continent, as well as overseas.
There has been continued public debate on the matter since the Bill was passed by the National Assembly. Despite assurances I gave that there was no intention whatsoever to control the use of mechanisms, such as the Internet, which are essential for electronic commerce and transactions, perceptions do persist, in the media in particular, that this Bill seeks to do that.
We have patiently asked for evidence on the nature, the form and the content of this control that Government would have, but to date it is not forthcoming, except to say that there is a fear of Government control with regard to the domain name.
There has been constructive engagement on this issue, as there has been on the Bill, from the beginning. As Government we have a responsibility not to undermine economic development and economic processes that contribute to such development. Still, Government has been accused of attempting to wrest control from a private body. An irrational fear is instilled in the public that -
South Africa faces the real threat of being disconnected from the Worldwide Web, with indeterminable consequences for e-commerce and the general economy of this country.
There is no factual basis given as to why a government so eager to compete with the world would want to do this and by what means it would do this.
The fear is, as we say in Afrikaans, dat ons magte wil hê soortgelyk aan dié wat die Gestapo gehad het, en dat Zimbabwe se Internet drie dae lank onderbreek was nadat die regering probeer inmeng het. [… that we want similar powers to those the Gestapo had, and that Zimbabwe’s Internet was off-line for three days after the government tried to intervene].
I cannot believe that we can be judged like the Gestapo - wanting to have Gestapo rights - and that we would want to meddle, as it were, with the Internet in a way that would cause the kinds of problems that we had in Zimbabwe. Consequently, we are informed that the zone file - what they call the primary file - has been moved outside South Africa until the dust settles. We do not know whether this is true, but true or not, I can only say that this fear that has been created is a fear of a democratically elected government; a fear similar to that which existed before the 1994 elections when people hoarded food, candles and the like because they believed a black government would bring huge chaos. Today we know that we did not see such chaos.
The articulation of this fear is, as some people have said in the papers, tantamount to saying South Africans are not well versed in technology, that we will just let the technology that runs the Internet go to ruin. To some people this is indeed an insult to all South Africans.
Many people who have been upset by this asked that I check how many individuals or personal names and public places have been registered as domain names by the current .za administrator, and whether these could be said to have been done in the public interest, which is what they would like to see protected.
Such a check revealed the following domain name information: mbeki.co.za is owned by Sean Grant of Waterkloof Glen, Pretoria; mandela.co.za is owned by ATP (Pty) Ltd, a company owned by André Coetzee; thabombeki.co.za is owned by a foreigner in Asia; sotho.co.za is owned by United Industries Company, a company of Parklands, Johannesburg; matsepecasaburri.co.za is owned by someone in the US … [Interjections.] …; miriammakeba.co.za is owned by a company overseas which wants Miriam to pay $30 000 to get it back; hughmasekela.co.za was, fortunately, returned to him as a birthday gift; and domain names such as Zulu, Kalahari, etc, have also been taken. This is what this debate is all about. This is what has made people write to the select committee to say that they have confidence in committed and patriotic South Africans, both black and white, and in their ability to run South Africa’s domain names.
The majority of those who have written to the committee is calling on us to ensure that the domain name belongs to all South Africans. They point to the mechanisms that we have put in place to ensure that the very control that is feared does not remain with private individuals who can threaten us and move the zone file, as is purported to have been done, and who are accountable to no one. The work that they have done may be very good, but the point is that this should indeed be placed in an open, transparent body, appointed by an open and transparent public process, which would ensure accountability and resolution of any conflict.
We also cannot allow ourselves to become victims of the self-inflicted paranoia of those who, as some people would say, are partially South African rather than proudly South African. And, as our President said last week, we are committed to a South Africa and an Africa reborn. We cannot continue indefinitely to nurture the feelings of those who see this continent as a hopeless basket case. We have to move forward into the future, as our President said. Therefore, let us not be distracted from our objective.
Even the Business Day’s editorial - a paper not known for its radicalism and Gestapo-like views - of Tuesday, 4 June, states:
Control of the domain names cannot belong to a select group of people who happen to be largely white. This is particularly relevant when that group has the ability to pull the plug on millions of e-mail addresses and Internet sites.
Instead of being scared into subordination on these matters, we accept that we see this challenge of exclusion as an opportunity to move forward, an opportunity to let some confront their demons and liberate themselves by breaking out of the prison of their fears. We all have a shared destiny. Domain names are like our national symbols. Responsibility is placed on all of us to believe in and promote the intellectual capacity of society in order to promote, collectively, ownership by South African and African people on this continent of what rightfully belongs to them.
This Bill enables us to have a secure environment for electronic communications and transactions, whether these be person-to person, business-to-business, business-to-consumer or government-to-citizen. Our suggestion is that a board for a nonprofit domain name agency should be representative, should be drawn from those knowledgeable about the task and should be recommended by interested stakeholders, including Namespace za, a company which has been having problems with the name ``Namespace’’ itself. The Bill provides for a timeframe to allow for a smooth transition to a new dispensation in which those recommended by the users and important stakeholders can continue in the fine tradition of efficient administering of the .za domain.
However, this Bill is about more than that which has captured the media’s imagination. Today we live in a world in which all spheres of human endeavour - education, health, agriculture and so on - depend on information and communication technologies. The centrality of these technologies in all aspects of social, economic and political life means that without them, it would be difficult for poor countries to leapfrog decades of underdevelopment.
The Bill which I am presenting to hon members today seeks to achieve exactly that by creating an enabling environment for the use of electronic commerce to enhance growth in all the other sectors of the economy. It aims to provide a platform from which academics, farmers, miners, artists, craftsmen and craftswomen, Government and other sectors of the society can use the Internet in trade, business transactions and communications with the rest of the world. We believe that this Bill, because of its emphasis on disadvantaged communities, will go a long way in allowing rural producers to participate in international trade and commerce. It will facilitate active participation in the rural economy, and in the economy in general, by rural men and women who are involved in arts and crafts and who cannot afford the transport to urban centres to market and sell their products. We envisage that electronic commerce will bring a large majority of our people into the mainstream economy.
The passing of this Bill will also accelerate the implementation of e- government, which will see Government using the Internet to provide many of its services such as tenders, identity documents, passports, licence applications, etc. E-government will help accelerate service delivery and access to Government information that will help people to help themselves in the spirit of Vukuzenzele, and therefore it will help push back the frontiers of poverty.
The technology to ensure that transactions are conducted in a secure environment has been developed by our own now famous Mark Shuttleworth. Mechanisms are put in place in this Bill to ensure that this security will be implemented through the establishment of, firstly, an accreditation authority and cryptography register and, secondly, cyber inspectors who will be appointed to monitor computer or cyber crime.
These measures are introduced because we recognise both the advantages and the disadvantages of the Internet. We want to maximise the benefits. Africa’s challenges require sound and effective strategic responses to help Africa reinvent itself, as Kuseni Dlamini said in Business Day. Let us rise to this challenge.
I wish to thank the Chair and members of the select committee for the work that they have done, sitting late into the night to ensure that the final Bill is in the best interests of our nation. The fruit is ripe; let us pick it and eat and savour it for the benefit of ourselves and our future generations. In this way we can experience an Africa reborn. [Applause.]
The CHAIRPERSON OF THE NCOP: The next speaker is the hon Nkuna. Are you awake, hon member? I understand that you worked late into the night. [Laughter.] Mrs C NKUNA: I am, Madam Chair. Madam Chair, hon Minister, hon members, when the sun set on our country’s abominable, excruciating past, the dawn of the new era came about. It came about with new challenges and opportunities. Because of the shed blood of our countrymen and countrywomen, the light shone in the southern part of the Sahara.
I am talking about the rebirth of South Africa from the shackles of apartheid. I am talking about a country that found itself intertwined in the web of the globalising world where the reality is that the haves continue to have at the expense of the poor, because it is convenient to continue with such a legacy.
That is the legacy we, as a nation, are not prepared to continue with. We are on board the train of progress, the train our hon President referred to in closing his debate, for this train is moving forward. One either jumps on board or stays behind to lounge in one’s nostalgia of ignorance and retrogression.
It is well known that we are living in a very competitive world where legitimate decisions can be made by simply pressing a button for the transaction of the decision to go through. We are living in an era in which physical borders are eroding between countries, hence the world often being referred to as a global village. It is an era of knowledge intensity, in which technology is the order of the day in order for any democracy to be successful and to have a competitive economy.
The emergence of the Internet has made possible better business …
Ms B N DLULANE: Madam Chair, on a point of order: Is it in order for the Minister to be alone without any officials? I would like to know from you, Madam Chair. [Interjections.]
Mrs G N M PANDOR: Order! That is not a point of order … [Laughter.] … especially because the Minister of Communications uses technology for all communications. [Laughter.] Please proceed, hon Nkuna.
Mrs C NKUNA: Thank you, Chair.
The emergence of the Internet has made possible better business relationships between companies, Government and individuals, something which benefits development. In terms of the South African perspective, along with Government’s commitment to public interests and the prosperity of our economy, this promotes public participation through access to Government information and services, because this Government is the government of the people by the people.
This is an era in which developing countries, in particular those in Africa, must reap what honourable former President Mandela refers to as the fruits of a world that is redefining itself. We as a nation, a country and a continent have to bridge the digital divide and put Africa on the map of economic success so that this can indeed become our century and the objectives of Nepad our reality.
Globalisation offers businesses a greater market, whilst offering consumers more choice, variety of products and information. Today we are talking about on-line computing services, Internet shopping and bookings, information services, electronic banking - the list is endless. However, with that comes risks. There are irregularities, fraud and abuse of consumer confidence. This Bill therefore seeks to protect consumers by providing a safe environment for transactions. It seeks to provide for the legally binding effect of electronic transactions and the legal recognition of data messages, electronic signatures and electronic evidence, the registration of cryptography service providers, the accreditation of electronic signature technologies by authentication service providers and the protection of critical data. That is imperative.
Most importantly, the Bill seeks South Africa to meet international practices and standards by creating a body that is representative of all sectors and stakeholders to administer domain names in the country. I am sure that even Mike Lawrie himself, who is a South African, is aware of this. A lot of expensive research has been done in this regard. For instance, in Finland there is a government agency called Ficora, the Finnish Communication Regulatory Authority, that seeks to ensure that consumers have access to competitive and technically advanced communication services that are both good and affordable. It is also involved in the protection of privacy and data in electronic communication and transactions.
In Canada the Canadian Internet Registration Authority was incorporated as a nonprofit corporation with the intention of managing the .ca ccTLD in the public interest. In Japan the Japanese Network Information Centre was formed to provide an institutional framework for the management and administration of the .jp ccTLD, and it operates as a nonprofit corporate association. The Japanese Network Information Centre continues to be responsible for the supervision of nine ministries, including the ministry of post and telecommunications.
Allow me to say that, in line with our position on providing a universal service, the Department of Communications, through the Post Office, is rolling out public Internet terminals, known as PITs, across the country. This means that any person can now go to the Post Office and log on to a PIT and easily become part of the global electronic era. Why should South Africa be different? Or is it convenient for a few of us to continue with such a legacy?
It is not the intention of this Bill to give Government access to the content of the private databases. The role of the Minister is to prescribe minimum standards for management, access, transfer, control and security of critical databases. These provisions are not unique to South Africa. The European directives on data protection require that all member countries lay down rules and regulations on data protection.
Other examples are the Swiss Federal Law on Data Protection, the Hungarian Law on Data Protection and the US Safe Harbour Protection Principles. These provisions are in this Bill in the interest of national security and the security of the citizens of South Africa.
Mr Stuart Lynn, the President of ICANN, the Internet Corporation for Assigned Names and Numbers, said:
Though many of the traditional Internet community ….
-
he is referring to the Mike Lawries and other stakeholders -
… are strongly against the very mention of government, it is simply unrealistic to believe that global co-ordination of the DNS can succeed without more active involvement of government.
He also continued to say that ``active national government participation is critical to the success of ICANN’’. Let me take a break and refer to the following. Hon members should read the Financial Times of 24 June 2002. There was a column in it which talked about the web’s internal woes and about ICANN. ICANN was created as an industry that regulated itself, and it is now encountering problems. The corporation is in disarray and is now calling on governments to come to its assistance, because it no longer sees itself surviving on its own.
On that note I would like to congratulate the department for showing its commitment to the development of our economy and the betterment of the standards of living of our people, on working towards ensuring that our democracy is globally competitive and on its commitment to the core principles of our Freedom Charter. Indeed, the people are governing and will continue to govern to achieve a better life for all. The people shall share in the country’s wealth, and all national groups shall have equal rights. We fought for these freedoms and are still fighting for them, side by side, throughout our lives, till the Mike Lawries understand us. [Applause.]
Mr F ADAMS: Chairperson, hon Minister and hon members, the growth in electronic trade has created an innovative market without conventional rules, but with many challenges. The Bill has therefore been drafted in recognition of the great need for legislation to regulate e-commerce in this highly technical industry. We have addressed electronic trade comprehensively with the Electronic Communications and Transactions Bill. The Bill now also ensures legal recognition and functional equality between electronic and paper-based transactions.
It is understandable that existing legislation, particularly with regard to the validity of transactions, has to a large extent become outdated and this can impair and frustrate the realisation of the advantages of e- commerce. Inasmuch as the Bill removes the obstructions and updates existing legislation so that the validity and enforceability of digital contracts and transactions are ensured, the Act will meet its objectives and this is laudable.
In die wetsontwerp is daar nog enkele dele wat kan verbeter, maar die positiewe aspekte van die wetsontwerp oorskry die negatiewe aspekte. Dit is noodsaaklik dat ons land die voorloper en pasaangeër moet wees in Afrika omtrent dié aangeleentheid. Die feit dat Hoofstuk 10, wat handel oor die web-adresse wat op .za eindig, totaal vervang is deur ‘n nuwe hoofstuk, dui op die Regering se erns dat e- handel in Suid-Afrika móét en sál kan werk.
Kragtens die wetsontwerp sal die Regering nou nie langer die enigste aandeelhouer wees in ‘n maatskappy wat die adresse reël nie, maar sal dit nou ‘n vennootskap met die privaatsektor vorm. Dit kom dus daarop neer dat die bedryf homself reguleer met die instemming van die Minister. Dié positiewe verandering word deur die Nuwe NP verwelkom. (Translation of Afrikaans paragraphs follows.)
[In the Bill there are still a few sections which can be improved upon, but the positive aspects of the Bill exceed the negative aspects. It is essential that our country should be the leader and pace-setter in Africa regarding this matter.
The fact that Chapter 10, which deals with the web addresses ending in .za, was totally replaced with a new chapter, indicates the Government’s seriousness that e-commerce in South Africa must and will be able to work.
In terms of the Bill, the Government will now no longer be the only shareholder in a company which regulates the addresses, but will now form a partnership with the private sector. It therefore amounts to the industry regulating itself with the agreement of the Minister. This positive change is welcomed by the New NP.]
The aim of the Bill is to enable and facilitate electronic transactions in the public interest, and it is wholeheartedly supported by the New NP. Electronic transactions offer a multitude of benefits to small business and consumers, such as access to the global marketplace for goods and services, unparalleled speed and efficiency of transactions, low transaction costs, the ability of the consumer to look out for the best quality goods and services at the lowest cost, regardless of the location of the supplier, and the possibility of increased security and consumer protection.
It is important that these benefits should be available to all South Africans and not only to a privileged few. It is therefore pleasing to note that this Bill contains the concept of making available the benefits of Internet connectivity to the South African population at large. The New NP also welcomes the fact that the SA Post Office is named as the preferred service provider for the Government. Sapo has over the years built up the necessary infrastructure and will therefore be in a position to provide a much needed service in almost all corners of the country. Previously disadvantaged people in rural areas will have immediate access to a service provider in order to share in the benefits of e-commerce.
In conclusion, I would like to express my appreciation to the Minister, and to the chairperson of the select committee for the way in which she conducted the proceedings of the committee. Open and extensive debates on the issues were allowed and it is really a pleasure to be a part of making history in South Africa.
The New NP supports the Bill. [Applause.]
Ms M P THEMBA: Chairperson, hon Minister and hon members, the times we are living in are characterised by convergence in the world economy, increasing trends towards a global market, an information revolution that transcends borders and a world that is technology driven. In the hon Minister’s own words: We have been rocketed into a new information society. The information has changed our ways of communicating with each other, our ways of receiving and sending information and new ways of working. It offers us new potential for development and progress.
Therefore the objectives of this Bill are central to that development and progress. They are critical to the development and empowerment of our youth, for the youth are the future of this country. By investing in them, we are investing in the prosperity and the future of our country.
LoMtsetfosivivinyo ubalulekile, ikakhulukati ekutseni uniketa bomake emagunya. Njengobe sonkhe sati kutsi bomake, solo kwatsi nhlo, babukelwa phansi mayelana neluketane lwekwati loluhlanganisa bakhiciti balokudliwako. Sizatfu kutsi bomake bebatsatfwa ngekutsi tintfo nje tekugadza emakhaya tikhulise bantfwana. LoMtsetfosivivinyo-ke ucinisekisa kutsi ngisho namake wasemakhaya le kantfutfu kulelive letfu utawukha titselo temhlaba wonkhe.
Babhali labanyenti bavumelana nebacwaningi ekutseni emave lanetimboni letikhicitako agijima kakhulu ekutsatseni ematfuba ekutsengiselana nekutsi kungabi nato tingcweti temisebenti kanye netakhiwo kungabangela kuwa kwemave lasatfutfuka. (Translation of Siswati paragraph follows.)
[This Bill is very important, particularly with regard to the empowerment of women. As we all know, women have always been at the lowest end of the food chain of information, for they were expected to stay home and raise families. This Bill therefore ensures that even women in the most remote areas of our country will benefit from the fruits of globalisation.
Several writers and critics agree that industrialised countries are moving very rapidly to take advantage of e-commerce and realise that a lack of skills and infrastructure could be the downfall of developing countries.]
This is very apparent in our own democracy where the majority of our people have no access to skills and many communities have no access to information infrastructure.
LoMtsetfosivivinyo uhlose kugucula loko kuze ubeke iNingizimu Afrika emkhatsini wemave emhlaba lasezingeni lekuncintisana kutemnotfo. Idemokrasi yetfu iyincenye yalenselele lenkhulu kantsi futsi isemlandvweni wetekutsengiselana nekukhicita kuloluhlelo lolusha loyinhlitiyo yekuhweba emhlabeni. Nguyona ndlela ingasebentiseka ekukhiciteni indali kubantfu kuze baphile labo labakhungetfwe bumphofu, ikakhulu labo labasemaphandleni ngibo labangumgomo waloMtsetfosivivinyo. (Translation of Siswati paragraphs follows.)
[This Bill therefore seeks to change that and to place South Africa amongst the most competitive economies in the world.
Our democracy is part and parcel of this challenging and yet enterprising epoch in the history of the world, and e-commerce is central to this new world order. The potential use of e-commerce for people living in poverty, particularly those in rural areas, is therefore central to this Bill.]
This Bill seeks to bridge the digital divide by developing a national e- strategy plan which must include detailed plans and programmes to address human resources and SMME development, amongst other things. I cannot begin to stress the importance of skilled human resources and SMMEs in our democracy for job creation and for their contribution to the general economy of the country. By supporting SMMEs, we are empowering the nation, and by supporting this Bill we are investing in our country through our SMMEs.
Research indicates that the Internet and e-commerce tools can provide SMMEs with access to marketing, research banking, training and information on business opportunities far more easily than before. This Bill therefore seeks to open the doors of opportunities for SMMEs to flourish.
To conclude, the spirit of commitment to the progress of our country must continue, and together we must work for a better life for all of our people. [Applause.]
Mr L G LEVER: Chairperson, it is essentially chapter 10 that makes this legislation controversial. In essence, chapter 10 seeks to nationalise South Africa’s top-level domain name administration.
During the select committee’s final deliberations on this issue, I tried to elicit an explanation from the director-general as to why this particular course of action was being followed. Despite having to press the director- general on this issue, no rational explanation was forthcoming. I further tried to establish whether the department had tried to avoid a confrontation with the present administrator of the .za domain name in the department. I received no direct answer to the question.
It is a matter of historical fact that the present administrator has run the .za domain name for more than 10 years. He has administered the .za domain name without making a profit out of it. He has never been motivated by personal gain. In 1998 he set up a committee to start drafting proposals for a more inclusive administration. I am informed that the director- general was invited to join this committee, but, despite apparently accepting this invitation, never attended a single meeting in the three years of drafting.
The issue that troubles me is why confrontation is being sought by the department when compromise is so manifestly possible. Why is an expensive authority being set up? The only plausible explanation is that this is simply an exercise in empire building.
To my knowledge there has never been any complaint levelled against the present domain name administrator. Nothing of this nature was ever raised in the select committee. Essentially, the function of a domain name administrator is to hand out Internet addresses. Why do we need to dress it up and create an expensive administrative body? Is it to dish out patronage? Name hijacking can be dealt with in the country’s courts. Why should the state and, therefore, the taxpayer pay for two different mechanisms to deal with resolution of name disputes? The DP supports the dissemination of e-technology to all levels of society. We believe that Government control of the domain name administrator will not accomplish this.
The hon Nkuna has given examples of top-level domain name administrators controlled by section 21 companies, but she fails to say whether the relevant Ministers appoint the board in their sole discretion. I respectfully remind her that the present administrator tried to set up a section 21 company with the participation of the department. This attempt failed owing to the failure of the department to participate. I would still like the department to furnish a credible reason for its behaviour.
The DP cannot support this legislation.
Ms N D NTWANAMBI: Chairperson, maybe I should respond to the ags'' as
well. Chairperson, hon Minister, hon members and ladies and gentlemen, let
me begin by quoting from Edward Boateng in his paper: The role of
information in promoting economic development in sub-Saharan Africa’’:
Interconnectivity to the world via the Internet is where the future of international commerce and finance will reside. If Africa is to emerge from its financial and economic shambles and integrate itself effectively into the global economy that is where it must be heading.
By supporting this Bill we are saying that we are heading in that direction, a direction towards Africa’s success and a direction towards the empowerment of Africa’s people. With Africa’s conviction to bridging the digital divide, we are making a declaration that this is our time and that this is our century.
Central to electronic technology are consumers who compose a vital and significant sector. Consumers are important by virtue of their very nature and their contribution to the economy via electronic transactions. Therefore, this is one sector that cannot be taken for granted.
From existing precedents, security of consumer privacy and security and authenticity of valuable information are of the essence and, indeed, have raised critical debate and concern. Research highlights the consumer’s right to security - the confidence that information transmitted during a transaction will arrive in an uncorrupted form and will not be improperly leaked to others. Therefore, the right of consumers to privacy must be protected. Assurance that a transaction will be honoured as agreed to, is essential for consumer confidence. This right, which the Bill seeks to protect, is enshrined in our Constitution, because, according to our Constitution, people are entitled to privacy.
The department’s discussion document mentions the following which are crucial to electronic transactions. Electronically based purchases, fund transfers and business deals must be as valid as traditional activities, personal information must be secured, consumers must be protected from fraud and maltreatment, and world on-line information and communications must be at least as accountable for the quality, reliability and legality of products and services as the person in the world. This Bill seeks to ensure the legality of that. To further secure consumers, the Bill states that vendors must provide consumers with a minimum set of information, including the price of the product or service, contact details and the right to withdraw from an electronic transaction before its completion.
As stated in the Bill, the Internet presents security challenges which, without an effective regulatory framework, would pose a threat to the security of consumers and the state. Therefore the Bill requires the suppliers of cryptography materials to register in the prescribed manner their names and addresses, the names of their products and a brief description thereof maintained by the department. This will allow investigative authorities such as the SAPS to identify which organisations provide the encryption technologies intercepted by them in terms of monitoring and interception laws.
Cybercrime has in recent years become a global concern. Child pornography and fraud have been some of the most notorious examples of cybercrime. The Bill therefore seeks to make the first statutory provisions on cybercrime in South African jurisprudence. It seeks to introduce statutory criminal offences relating to information systems and includes unauthorised access to data, interception of or interference with data computer-related extortion, fraud and forgery. Further, this Bill seeks to prescribe the penalties for those convicted of offences.
To conclude, the management of electronic communications and transactions is crucial to the viability of our economy and consumers are central to that. Let me say that the hon Lever is not honest, because he only came to one meeting, and he came because they had tried to organise that committee meeting as their press briefing. They missed many meetings when the department was there and at which many explanations were given by the DG. We have taken note of their opposition to whatever, save to say that it is wrong and it is misleading to say there were no briefings or that not enough time was given to the Bill.
Mr M J BHENGU: Chairperson, one would try to be germane because many interesting points have been raised by the previous speakers, and one would not like to repeat most of the points because that would make the debate monotonous.
The debate around the issue of domain name authorities and the government taking control of this function is indeed heated and extremely complicated. A domain authority is a highly technical function, and one has actually observed that the existing body is already looking after the universal access to it. There can be no argument against the fact that our Government has a vital role to play in this whole thing.
For instance, it is reported that the Internet Corporation of Assigned Names and Numbers has long called for the involvement of governments in the administration of domain names, and, I think, our Government has responded accordingly. What is very interesting is that the Government has been accused, amongst other things, of trying to wrestle control of the Internet from a private body. One can only hope that this does not threaten us with being disconnected from the World Wide Web, because, if that happens, there may be serious consequences for e-commerce communications and the general economy as a whole, but I do not think this would go so far.
There have been many arguments against this Bill. For example, it has been reported that the department risks replicating the existing responsibilities in new bodies, and some say that the consequence of this would be an escalation in costs, bureaucracy, etc.
However, what is important for us is that, by its nature, this is a very wide-ranging and highly technical Bill. Therefore, what is very important is the protection of the critical data bases. It is interesting to note what the Minister was saying - that most of the domain names were actually owned by people overseas. That was a very interesting revelation.
Another thing which this Bill tries to do, is to meet the challenges presented by the whole process of globalisation. I think it is important that the Government actually does something about the whole process of globalisation. This Bill actually answers just that.
In another area it attempts to give recognition to electronic transactions, to make them equivalent to paper-based transactions, which will help professionals such as lawyers in profitable work in years to come. This is quite an interesting development.
There is also this thing that there has to be a facilitation in the creation of electronic communication and consumer protection in this regard. It seems as if the Bill is addressing that. There is no doubt that, once we have enacted this Bill, it will now and again be amended in the years to come into proper and well-polished legislation.
The IFP, in its deliberation after the study group, found the Bill to be in order and we heartily support it. [Applause.]
NOTICES OF MOTION
Mr B J MKHALIPHI: Chairperson, I give notice that I shall move at the next sitting of the House:
That the Council -
(1) notes with appreciation -
(a) the commendable work performed by the management, staff and
inmates of Carolina Prison;
(b) that the said prison prides itself on the remarkable record of
zero escapes, zero incidents of corruption and a decrease of
inmates' misdemeanours for the past 3 years; and
(c) that the conducive atmosphere around the prison enhances
effective rehabilitation and correction of inmates since
community involvement is always at its prime; and
(2) commends the management and staff for going the extra mile to ensure that the prison serves its purpose to the fullest.
The MINISTER OF COMMUNICATIONS: Chairperson, perhaps I should start with the points that were made by Mr Lever. I was kind of surprised that there was a perception that we did not want to avoid controversy and that we were confrontational. I am glad that Ms Mtwanambi indicated that they did not attend the committee meetings, because this is in fact what had happened. Indeed, a number of amendments were made to the original formulations. What we have asked for was totally different from what we have heard here, namely that appointments would be at the sole discretion of the Minister. Nothing can be further from the truth.
It has been agreed that we would have an open process in which the Minister would openly set up a panel - everybody knows about it - to which nominations would be sent by all concerned parties, and that panel will be the one to look at who has been nominated, including all these people about whom we are talking, such as Namespace, etc.
They will make recommendations regarding the people that they nominate. That body will be sending names to the Minister. The Minister will not be able to pick and choose. That is the tradition that we have as a democratic country, to say that there must be participation of everybody and not just by choice.
The difficulty we had was where we were invited as Government to join the
fray when we were already planning to say that we should let everybody know
what this thing was. The benefit of this controversy has been that at least
we saw how little people knew. People everywhere asked: What is this
controversy all about?'' What is this .za domain?’’ ``Who is this
administrator?’’ At least it has created some interest, but we have had
overwhelming support, as has been indicated in this House.
I would also like to comment on what the hon member there asked about the absence of my officials here today. Indeed it is very interesting. Today the majority of those officials, in fact, all of them who have been particularly involved in the drafting of this Act, has had to go to Bucharest in Romania. Why? They had to go to Romania because issues about ICANN’s reform are being discussed there, because this is a body which has been dominated by the United States and governed by Californian law.
So when we are asked why we need money to do whatever, I can say it is precisely to contest the use of our heritage, of our personal names, etc, so that when we sit in such a body, we should be able to say what it is the Third World or, as people say, the developing world, wants. Therefore South Africa’s participation was critical, particularly because this continent is not usually represented at such conferences, and many people had to go to this one where, as I say, they will be finalising the key issues of ICANN’s reform and the questions around country code top level domain names such as the .za. That is why they are not here. It is a big battle.
Ha Basotho ba re ke ntwa ya dibono, ka nnete ke yona ntwa ya dibono.
[Legofi.] [When they idiomatically say: Ke ntwa ya dibona'', referring to
a heated confrontation; the Basotho would be referring to a real conflict,
ientwa ya dibono’’. [Applause.]]
The legal status of ICANN itself was a concern and required that some international arbitration be established, because we have not had arbitration in South Africa. If my name has been taken, I cannot come and contest it, and that was part of our concern. [Interjections.]
Mr Lever says we must go to the courts. Can hon members imagine Matsepe- Casaburri, as busy as she is, and even more so if she were poor, going to the courts to ask for something such as this while no one else in the world is called Matsepe-Casaburri?
Ke nna feela. [Setshego.] [I am the only one.] [Laughter.]]
I would have to go to the courts to go and fight and pay the court lawyers, and then it would go to the High Court, etc. Poor people of South Africa, or even average earners such as myself, would not be able to pay for that.
We wanted to be able to say that we should have a committee that can protect our heritage sites. How many of our heritage sites and our country’s names do not belong to us anymore?
That is what spurred us in this direction. I would like to explain that the other members of my staff have gone to another body called Intelsat, which is an assembly of parties which deal with satellite communication. They are not here today, because, again, it is a battle similar to the one I have referred to, because that is where we do treaty-making and standard- setting. People sometimes say this department seems to be a high flyer, but now they will understand why we are flying around and what wars we are fighting, which are silent wars.
Hobane jwaloka Basotho ba tjho … [Because, as the Basotho cultural group maintain … ] it is because nobody sees the bruises. … hobane di patehile, empa ke ntwa e kgolo eo, re a e tseba. [Laughter.] [… because they are not visible, but we know that it is quite a great war, that one. [Laughter.]]
So really, we are saying thank you very much for the support. This support is important, because the battles that South Africa wins in this arena are the ones that we win also for the continent of Africa which does look to us to say, ``You are even more advanced. You are the ones who have Internet users. If you win this battle for yourselves, you win it also for us.’’
Therefore, there is no issue of patronage, as the hon Lever has said, that we want to dish it out. What patronage can I give through this domain name? It needs technical people, and there is no way in which a Minister will appoint people who will destroy this thing that is so important for the economy. There can be nothing further from the truth. We said that it must be a public-private partnership ownership, because we all own this country collectively. We must make sure that it progresses and thrives because, in fact, this economic activity is important for our development and, as has been indicated by the members, it is important to involve young people, women, people in rural areas and small and medium enterprises in the economy.
I therefore thank the hon members very much because, indeed, through this Bill and also through the hon members’ own efforts, we want to make sure that we invest in the future, and this truly makes us invest in the future. As Mr Adams said, it is making history in South Africa. I can tell the House that with all the battles that we are also fighting elsewhere, we are making history as South Africans. I thank the hon member for that. [Applause.]
Debate concluded.
Bill agreed to in accordance with section 75 of the Constitution (Democratic Party dissenting).
CONSIDERATION OF REPORT OF SELECT COMMITTEE ON LABOUR AND PUBLIC
ENTERPRISES - LABOUR STANDARDS CONVENTION
Mrs C NKUNA: Chairperson, hon Minister, hon members, the importance of the role of the International Labour Organisation in the world economy is undisputed. Therefore, Convention No 144 is of great importance as it promotes tripartite consultations and requires member states to establish and follow procedures for effective consultations with unions and employers on ILO matters. That is what democracy is all about. This convention therefore recognises the important role of good relations among businesses that play a critical role in the creation of jobs and opportunities, governments and the unions that represent workers.
In South Africa we realised a long time ago the importance of good, engaging relations among Government, business and unions, hence the National Economic, Development and Labour Council - Nedlac - was formed as a primary institution for social dialogue, dialogue among organised business, Government, labour and the community on issues of social and economic policy.
Nedlac’s objectives encompass promoting the goals of economic growth; participating in economic decision-making and social equity; reaching consensus and concluding agreements pertaining to social and economic policy; considering all proposed labour legislation relating to labour market policy before it is introduced in Parliament; considering all significant changes to social and economic policy before they are implemented or introduced in Parliament; and encouraging and promoting the formulation of co-ordinated policy on social and economic matters.
As nations, we need to have healthy, vibrant and productive relations among these spheres of democracy to prevail, so that the standards of living of our people can improve and our economy can prosper. We need to work together for the prosperity of our future. Therefore, the ILO is central to this.
In the words of Antonio Peñalosa, the secretary-general of the International Organisation of Employers, ``In a global economy we have to unite efforts to create wealth. Full employment, social improvement, job satisfaction are unquestionably related to enterprise success and enterprise development.’’
Article No 2 binds the member states of these tripartite consultations, whilst article No 3(2) states that workers and employers shall be represented on an equal footing on any bodies through which consultations are undertaken.
On that note, I would like to state that as the select committee we support this ratification and are committed to tripartite consultations among these spheres because engaging consultations and negotiations have always been central to our struggles. [Applause.]
Debate concluded.
Question put: That the Report be adopted.
IN FAVOUR OF: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Mpumalanga, Northern Cape, Northern Province, North West, Western Cape.
Report accordingly adopted in accordance with section 65 of the Constitution.
CONSIDERATION OF REPORT OF SELECT COMMITTEE ON LABOUR AND PUBLIC
ENTERPRISES - OCCUPATIONAL SAFETY AND HEALTH CONVENTION
Dr P J C NEL: Chairperson, I rise on behalf of the Select Committee on Labour and Public Enterprises in support of the ratification of the International Labour Convention on occupational safety and health and the working environment. This convention encourages a coherent policy on occupational health and safety in the working environment, as well as communication and co-operation at all levels in this area. It applies to all branches of economic activity and to all workers, including public servants, with the possible exclusion of workers in the maritime and shipping industry.
The policy seeks to prevent accidents and injury to health arising out of, linked with, or occurring during the course of work and to minimise, as far as is reasonably practical, the causes of hazards inherent in the working environment. A total of 36 countries have already ratified this convention. The convention also does not have any constitutional, financial or organisational implications for the state.
In addition, the convention has communication mechanisms in place which will make it easy for the Department of Labour to consult with its social partners, should such a need with the International Labour Organisation arise. Therefore, we, as the select committee, believe that together we shall strive to realise the ideals, as set out in the convention, through awareness campaigns and the promotion of occupational safety and health principles as enshrined in the Constitution; to make abiding by the requirements of occupational safety and health legislation a way of life; to train workers and managers on safe working practices; and to build an effective and efficient occupational health and safety institutional framework.
Therefore, we commit ourselves to working together constructively in the interests of occupational health and safety. The committee has considered the International Labour Convention and requests the ratification of same by the honourable House. [Applause.]
Debate concluded.
Question put: That the Report be adopted.
IN FAVOUR OF: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Mpumalanga, Northern Cape, Northern Province, North West, Western Cape.
Report accordingly adopted in accordance with section 65 of the Constitution. CONSIDERATION OF REPORT OF JOINT MONITORING COMMITTEE ON IMPROVEMENT OF QUALITY OF LIFE AND STATUS OF CHILDREN, YOUTH AND DISABLED PERSONS - VISIT TO EASTERN CAPE
Order disposed of without debate.
Question put: That the Report be adopted.
IN FAVOUR OF: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Mpumalanga, Northern Cape, Northern Province, North West, Western Cape.
Report accordingly adopted in accordance with section 65 of the Constitution.
The Council adjourned at 16:04. ____
ANNOUNCEMENTS, TABLINGS AND COMMITTEE REPORTS
MONDAY, 24 JUNE 2002
ANNOUNCEMENTS:
National Assembly and National Council of Provinces:
- The Speaker and the Chairperson:
(1) The Minister of Transport on 14 June 2002 submitted a draft of
the Road Accident Fund Amendment Bill, 2002, as well as the
memorandum explaining the objectives of the proposed legislation,
to the Speaker and the Chairperson in terms of Joint Rule 159. The
draft has been referred to the Portfolio Committee on Transport
and the Select Committee on Public Services by the Speaker and the
Chairperson, respectively, in accordance with Joint Rule 159(2).
(2) The Minister for Agriculture and Land Affairs submitted the
Wetsontwerp op die Beplanningsprofessie [W 76 - 2001] (National
Assembly - sec 75) to the Speaker and the Chairperson on 24 June
2002. This is the official translation of the Planning Profession
Bill [B 76 - 2001] (National Assembly - sec 75), which was
introduced in the National Assembly by the Minister on 26
September 2001.
(3) The Minister of Communications submitted the Wetsontwerp op
Elektroniese Kommunikasies en Transaksies [W 8 - 2002] (National
Assembly - sec 75) to the Speaker and the Chairperson on 21 June
2002. This is the official translation of the Electronic
Communications and Transactions Bill [B 8 - 2002] (National
Assembly - sec 75), which was introduced in the National Assembly
by the Minister on 5 March 2002.
(4) The following Bill was introduced by the Minister of Transport
in the National Assembly on 24 June 2002 and referred to the Joint
Tagging Mechanism (JTM) for classification in terms of Joint Rule
160:
(i) Road Accident Fund Amendment Bill [B 27 - 2002] (National
Assembly - sec 75) [Explanatory summary of Bill and prior
notice of its introduction published in Government Gazette No
23487 of 6 June 2002.]
The Bill has been referred to the Portfolio Committee on Transport
of the National Assembly.
In terms of Joint Rule 154, written views on the classification of
the Bill may be submitted to the JTM within three parliamentary
working days.
(5) The Joint Tagging Mechanism (JTM) on 24 June 2002 in terms of
Joint Rule 160(6), classified the following Bill as a money Bill
(section 77):
(i) Taxation Laws Amendment Bill [B 26 - 2002] (National
Assembly - sec 77).
TABLINGS:
National Council of Provinces:
- The Chairperson:
(1) First Report of the Working Group on the African Union on Protocol
to the Treaty Establishing the African Economic Community relating
to the Pan-African Parliament, dated 20 June 2002:
The Working Group on the African Union, having considered the
request for approval of the Protocol to the Treaty Establishing
the African Economic Community relating to the Pan-African
Parliament, recommends that the Council, in terms of section
231(2) of the Constitution, approves the said Protocol.
The Working Group reports further, as follows:
(i) The Protocol provides that, while the ultimate aim of the
Pan-African Parliament is to evolve into an institution
with full legislative powers, at this stage the Pan-African
Parliament will only have consultative and advisory powers.
Currently there is no constitutional conflict between the
provisions of the Protocol and those of the South African
Constitution.
However, once legislative powers have been granted to the
Pan-African Parliament, there may be a need to consider
amendments to the Constitution and other domestic
legislation.
(ii) Parliament should as soon as possible consider the
procedure and criteria for the composition of the members
to be designated to the Pan-African Parliament.
(iii) The Joint Subcommittee on the Parliamentary Budget should
make provision for South African participation in the Pan-
African Parliament.
(iv) The Working Group will proceed with identifying aspects of
the Protocol to be addressed through the Rules of Procedure
of the Pan-African Parliament.
(v) The Working Group will begin to give consideration to the
proposed Rules of Procedure for the Pan-African Parliament.
Report to be considered.
TUESDAY, 25 JUNE 2002
COMITTEE REPORTS: National Council of Provinces:
-
Report of the Select Committee on Security and Constitutional Affairs on the Implementation of the Rome Statute of the International Criminal Court Bill [B 42B - 2001] (National Assembly - sec 75), dated 25 June 2002:
The Select Committee on Security and Constitutional Affairs, having considered the subject of the Implementation of the Rome Statute of the International Criminal Court Bill [B 42B - 2001] (National Assembly - sec 75) referred to it, reports the Bill with proposed amendments, as follows:
CLAUSE 10
1. On page 8, from line 28, to omit subsection (8) and to
substitute:
(8)(a) No order for the surrender of any person may be executed
-
(i) before the period allowed for an appeal as contemplated in
this section has expired, unless that person has waived his
or her right of appeal in writing; or
(ii) before such an appeal has been disposed of.
(b) Any person against whom an order has been issued under
subsection (5) may, within seven days after the date of the order,
appeal to a High Court having jurisdiction against a decision of
the magistrate whether one or more of the requirements referred to
in subsection (1)(a) to (c) have been complied with.
(c) The National Director may, within seven days after the date
of a decision of a magistrate not to issue an order committing a
person to prison pending his or her surrender to the Court, as
contemplated in subsection (5), appeal against such a decision to
a High Court having jurisdiction.
(d) On appeal such High Court must make a decision whether the
requirements referred to in subsection (1)(a) to (c), as appealed
against, have been complied with and make an order which, in the
opinion of the High Court in question, the magistrate should have
made in the first place.
(e) If an appeal in terms of -
(i) paragraph (b) is upheld, the Registrar of the High Court
concerned must notify the magistrate in question
accordingly, who must, in turn, immediately cancel the order
referred to in section 10(5), notify the Court thereof
through the Central Authority and cause the person who
lodged the appeal to be released from custody if he or she
is in detention;
(ii) paragraph (c) is upheld, the Registrar of the High Court
concerned must notify the magistrate in question
accordingly, who must, in turn, after causing sufficient
notice to be given to the person in question and to the
National Director, inform the person in question of the
order of the High Court. (f) Notice to the person in
question as contemplated in paragraph (e) (ii) must be a
written notice to that person calling upon him or her to
appear at a stated place and time on a stated date in order
that the magistrate can inform the person of the order of
the High Court, as contemplated in paragraph (e)(ii),
whereupon the provisions of sections 54(2) and 55(1) and (2)
of the Criminal Procedure Act, 1977 (Act No. 51 of 1977),
apply with the necessary changes.
(g) The Rules Board for Courts of Law established by section 2 of
the Rules Board for Courts of Law Act, 1985 (Act No. 107 of
1985), must, within six months after the date of
commencement of this Act, make and implement rules of
procedure which provide for the expeditious and urgent
finalisation of an appeal contemplated in this section.
(h) Any rule made under paragraph (g) must, before publication
thereof in the Gazette, as contemplated in section 6(4) of
the Rules Board for Courts of Law Act, 1985, be approved by
Parliament.
SCHEDULE 2
1. On page 23, in the third column of the item relating to "Act No.
16 of 1999", after "2002" to insert:
, the matter must be dealt with in accordance with that Act