Archive | Security,police,defence

Fresh Cybercrimes and Cybersecurity Bill tackles Internet fraud

…  Revised Bill criminalises cybercrimes …

posted 5 Aug… A new Bill designed to give powers to the State Security, Defence, Police and Telecommunications Ministers to intervene in many aspects of South Africa’s key economic, financial and labour environments and zeroing in on cybercrimes and related offences, is in debate.  It also calls upon the financial sector to assist in tracking down fraudsters.

Offences include the circulation of messages that aim at economic harm to persons or entities; that contain pornography or could cause mental or psychological stress; the Bill calls upon the private financial and communications sector and, more specifically, electronic service providers to assist with its objectives. The Bill will also change much in the way how government and SOEs go about their business to reflect the current call for electronic security.

The revised Bill is re-write of that originally tabled in 2015 and rejected as too convoluted and wide ranging on issues that could cause unintended consequences.

Badly needed

Despite placing considerable onus upon the private sector to assist, the IT industry seems to be guardedly welcoming the debate which is about to commence. The original and rejected Cybercrimes and Cybersecurity Bill was tabled in Parliament last February.

The main comment circulating seems to be that this later version is more specific than its earlier counterpart, provides more clarity and has less weight placed upon tedious operational management factors in state structures designed to fight cybercrime.

The Bill is the product of the Department of Justice and Constitutional Affairs (DoJ) and from what has been said, Deputy Minister John Jeffreys seems to be the state official still running with the legislation. He said at a media briefing some months ago, “This Bill will give the State the tools to halt cybercrimes and trained teams to bring to book those who use data as a tool for their crime.”

Not meant

Originally, when the Bill was tabled in 2015 it caused a storm of controversy. Whilst its objectives to catch criminals and stop the growing invasion institutional attacks were understood, unintended consequences for the media were not foreseen. The new Bill acknowledges that journalists and whistle-blowers have protection under the Protected Disclosures Act.

However, the somewhat draconian powers of seizure of data granted to the authorities will still no doubt worry many service providers insofar as interlocking the proposals into the Protection of Personal Information (POPI) Act and the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA) are concerned, it has been suggested in hearings.

However, the Minister and other ministerial portfolios concerned, appear to have weighted their decision upon the growing threat of international cybercrime and have continued to call for service providers to assist with the issue caused by a late start.

SA under limelight

Some IT forensic reports indicate that sub-Saharan Africa has the third highest exposure to incidents of cyber fraud in the world and according to those who published this fact, they also claim that incidences of cybercrimes and cybersecurity breaches are escalating globally at 64%, with more security incidents reported in 2015 than 2014 for South Africa.

South Africa is known to be a specific target for cybercrime involving unlawful acquisition of sensitive data relating to clients and/or business operations due to a very high reliance on internet connections by commerce. Large data storage packages proliferate in SA, it is suggested, ranging from the JSE to the banking sector.

ATMs, bank transfers

In the case again of South Africa as part of sub-Sahara Africa, wire transfer fraud accounts for 26 percent of cybercrimes, far ahead of the global average of 14 percent, South Africans being defrauded of more than R2.2bn each year it is estimated.

Banking and financial institutions in South Africa, it is noted in the preamble to the Bill, are particularly exposed, the Reserve Bank having stated back in 2016, “It would be remiss of us in our duty if we ignored the growing risks emerging from the financial services sector’s increasing reliance on cyberspace and the Internet.”

Definitions

The Bill now before Parliament criminalises unlawful and intentional conduct regarding data, data messages, computer systems and programs, networks and passwords and creates as crimes “cyber fraud, cyber forgery and cyber uttering”.

It criminalises malicious communications – namely messages that result in harm to person or property, such as revenge porn or cyber bullying. The police are given extensive investigation, search and seizure powers in the Bill and an array of penalties, including fines and imprisonment apply, including various prescribed in terms of the Criminal Procedure Act, 1977.

No FICA-type warrants.

It is notable that cyber-crime powers of search and arrest remain with SAPS and not any specific structure or system set up by the new Bill to monitor instances of cybercrime or detect suspicious data attacks.

There remain, however, quite onerous obligations on electronic communications service providers and financial institutions, not only to assist in investigations of cybercrimes but also to report instances of cybercrime. A “framework of mutual co-operation between foreign states” is established in respect international investigation and the prosecution of cybercrime.

Crime fighting structures

The Cybercrimes and Cybersecurity Bill also establishes a Computer Security Incident Response Team, as did its predecessor, to establish contact with the private sector alongside with the already functional Cyber Security Hub responsible to the Minister of Telecommunications and Postal Service.

Finally, on structures, the Minister of Defence is to establish and operate a Cyber Command and appoint a General Officer Commanding.

The Bill also provides for the declaration of what is termed as “critical information infrastructure possessed” by financial institutions – for example databases upon which an attack could possibly represent a national threat.    Debate will no doubt flow around who and who not should report and upon what exactly.

The crimes defined

For the technically minded, the Bill In terms of the Bill, the following activities are criminalised: unlawful securing of access to data, a computer programme, a computer data storage medium or a computer system; unlawful acquisition of data; unlawful acts in respect of software or hardware tools; unlawful interference with data or a computer programme; unlawful interference with a computer data storage medium or computer system; unlawful acquisition, possession, provision, receipt or use of password, access codes or similar data or devices.

Also included are cyber fraud; cyber forgery and uttering; cyber extortion and certain aggravating offences; attempting, conspiring, aiding, abetting, inducing, inciting, instigating, instructing, commanding or procuring to commit an offence; theft of incorporeal properties; unlawful broadcast or distribution of data messages which incites damage to property or violence; unlawful broadcast or distribution of data messages which is harmful; unlawful broadcast or distribution of data messages of intimate image without consent.

The Bill imposes a list of penalties and allows for imprisonment for up to 15 years for cybercrimes and the maximum fine that may be levied for failing to timeously report an incident or failing to preserve information is now capped at R50,000, far less than the extraordinarily high penalties for non-disclosure levied in the initial version of the Bill.

Necessary actions

The search and seizure powers granted in terms of the new Bill “do not represent increasing the state’s surveillance powers”, Deputy Minister, John Jeffries said, “But if the State cannot seize evidential material to adduce as evidence, it will be impossible to prove the guilt of an accused person.”

Any hearings will obviously focus mainly upon the onuses and impositions imposed in the Bill upon electronic communications service providers and financial institutions, known by an acronym in the Bill as “ECSPs”. A date for further parliamentary briefings by DoJ has yet to be scheduled.
Previous articles on category subject
Cybercrime and Cybersecurity Bill invokes suspicion – ParlyReportSA
Draft Cybercrime Bill drafts industry – ParlyReportSA
Lack of skills hampering broadband rollout – ParlyReportSA

 

Posted in Communications, Home Page Slider, Justice, constitutional, LinkedIn, Security,police,defence, Trade & Industry0 Comments

Parliament embroiled in state capture

State capture emerges as a fact  …

An impression might have been given recently that parliamentary meetings only occur as and when e-NCA cherry picks a meeting for the evening news on the subject of state capture.   Therefore, one might think, every parliamentary meeting is either about the SABC or Eskom, Transnet or Denel.   Nothing could further from the truth.

Although the perverse facts behind the carefully planned act of state capture, involving Bell Pottinger, the Gupta family, their friends and associates, the actual crime in parliamentary terms  is non-disclosure to Parliament committed by public servants in the name of the same “prominent” persons, plus lying and falsification in terms of an oath taken to serve the nation.

Parliament, as a structure, has remained untarnished as the second pillar of separated powers. It is the players who have broken faith.

Hundreds of meetings

This is not to say that truth has always been exercised in Parliament in the past nor to claim that from the President down to backbenchers, all have been unaware that fake news has been fielded in parliamentary meetings.  But what is heartening is that the parliamentary process has been an enormous hurdle for the crooked to overcome.

In any one of the four sessions a year, each roughly equating in timelines to the terms of a school calendar, there are some three to four hundred committee meetings in the National Assembly and National Council of Provinces.

The subject matters covered represent the activities of forty seven government departments, literally hundreds of SOEs and all legislation which is tabled for the Statute Book must be debated.   All this is conducted with two audiences. It is a daunting programme.

Standing out

But soon it was noticeable that it was the meetings on SOEs, particularly those with their own boards and where tender processes were involved, that there was  a common theme emerging.   In each case it was a matter of strategic decisions not being taken to Parliament for approval; balance sheets not squaring up to meet the requirements of the Auditor General and the sudden arrival of newly appointed board members with little or no experience of matters under discussion.

It all stood out like a sore thumb.   Meanwhile, investigative journalism was to become a major force in parliamentary affairs.

In fact it was the parliamentary system that began slowly to reject  the manipulative processes being fielded.  Many an MP started demanding investigative reports from Cabinet ministers with cross-party support;  parliamentary rules were enforced in order to restrain the passage of  mischievous legislation and the pointing of fingers and the use of the kind of language that is only allowed under  parliamentary privilege contributed to the wearing down of the cover-up machine.

To the rescue

Eventually, between the AmaBhungane team and the BDFM team and others such as City Press, investigative journalism saved the day.   It could then be seen in writing that many of the issues so slowly being uncovered in Parliament, where nobody could pierce the web of intrigue and see the picture in its entirety, the full story was beginning to  take shape.

The extent of the theft is still not known and still emerging are new players in the list of “prominent persons”.  There is also still no apparent follow up by either SAPS or the Hawks, nor matters acted upon by the National Prosecuting Authority.

Worse, many do not expect this to happen – so cynical has the taxpayer become and so deep are the criminal waters.  But, as the saying goes, “every dog has its day”.

In the engine room

Despite the bad publicity for Parliament and the institution itself being under fire as to whether or not Parliament is a reliable democratic tool, a good number of MPs, especially opposition members, have been slaving away.     This is despite the appointed Secretary to Parliament, Gengezi Mgidlana, going on “special leave” whilst allegations into his possible violations of the PMFA are investigated.

Mgidlana was appointed as “CEO” of Parliament by the Presidency.     His jaunts overseas accompanied by his wife are the subject of investigation and have been the cause of strike action by parliamentary staff for nearly a year, whilst their own pay packets are frozen.

This matter seems to have mirrored the very issues being debated in Parliament.   Fortunately and most responsibly, the strikes have been orchestrated so as to have little major effect on the parliamentary schedule

Top heavy

Meanwhile, despite the top guy being a passenger in his own system, notices are going out on time, the parliamentary schedule is available every morning and the regular staff are hard at it. Now is the time in the parliamentary diary when the April budget vote is activated; money is made available and departmental programmes initiated.    Hearings have been conducted on many important pieces of legislation.

There is an extraordinary team in Cape Town which runs Parliament, especially researchers and secretaries to committees.

Train smash

Added to this, if it was not enough, a normally busy schedule was further complicated by urgent meetings on poor governance; tribunal findings; briefings for new members of Cabinet and the fact that to match President Zuma’s ever-expanding Cabinet with appropriate government departments there were some fifty portfolio and select committees all being served by a reduced Parliamentary staff.

The extent to which corruption is embedded into government’s spending programme makes parliamentary oversight a difficult and lengthy task, especially when under performance or poor governance matters are involved.   It all reflects the times we live in. In one day alone there  is not enough parliamentary time for a whole range of public servants to be “in the dock” to answer questions on matters involving millions of rand.

No court of law

To be fair, it is often as difficult for the respondent to get around to answering as it is for parliamentarians to get to the truth.  When you know the boss is on the take, how does one answer?   Issues tend to go around in circles.

Sifting out the rhetoric when the truth is shrouded in political intrigue is no easy task in Parliament especially when people are frightened of losing their jobs.

As the millions of rand stolen turn into billions of rand during the early part of 2017 and parliamentary committees were introduced to new “acting” directors in charge of government funding, TV cameras popped up in all corners of the parliamentary precinct.    One was constantly tripping over metres and metres of black cable to caravan control rooms enabling the public to watch the latest saga.

Camera shy

At the same time, Parliament is clearly now being side-lined by members of the Cabinet or avoided by Directors General and this maybe because of this new found public form of entertainment of spotting the good guys and shaming the captured ones.

In the past, the abuse of parliamentary rules by the incumbent President used to be considered as country-boy innocence but now the position has changed.     As any election approaches, parliamentary rhetoric always descends into low grade babble in the National Assembly but this time it is very different.  there is a clear disconnect between Parliament and the President.

With the addition of the now infamous “white minority capital” campaign to the debate, orchestrated ostensibly as we now know from London (as probably was the over employed expression of “radical economic transformation”) most of the forty-seven ministers and deputy ministers hammered out the same slogans in their budget vote speeches 9r at any given opportunity to speak, as if orchestrated.

Looking back: 2nd session

Going back to the beginning of 2016/7, Parliament has ploughed through the Nkandla mess; the SABC crisis; the Eskom governance exposures; the troubles at SAA; the failures and manipulations at Denel; crookery at Transnet; the PRASA scandals and in the losses at PetroSA, the latter being just sheer bad management it seems driven by political desire.

All of this has involved a lot of committee time far better spent on enlightening issues to assist the economy and create jobs. The “blame game” simply led to a jungle of write offs with no explanations but, suddenly, an ill-timed series of cabinet re-shuffles rattled a hundred cages.

D-day

Friday, March 31, 2017 will always be remembered following a period of stun grenades and parliamentary brawling in the House as President Zuma announced yet another set of choices to make up his Cabinet.  In committee meetings, in no less than eight portfolios, new or changed Ministers and Deputy Ministers appeared at meetings with little background.

The second session of the 2017 Parliament had this extraordinary start and on it ending, the arrival of the Gupta emails has now confirmed and named many involved in the whole issue of truthful depositions before Parliament.  No doubt a lot more shocks are yet to come.

The next session of Parliament will represent one of the arenas where the gladiatorial challenge will be played out on state capture together with the battle to avoid fusion in the separation of powers.

It is to be hoped that spring at the end of the third session will herald more than just another summer.

 

Previous articles on category subject
Zuma vs Parliament – ParlyReportSA
Parliament awaits to hear from Cabinet – ParlyReportSA
Parliament goes into Easter recess – ParlyReportSA

Posted in cabinet, Cabinet,Presidential, Energy, Finance, economic, LinkedIn, Mining, beneficiation, Public utilities, Security,police,defence, Special Recent Posts, Trade & Industry0 Comments

AARTO traffic offences bill on its way

AARTO licence demerit system studied 

…. In what has been a legislative marathon, the update of the Administrative Adjudication of Road Traffic Offences Act (AARTO) has now reached a stage where Parliament has called for yet further consultation with the public. It requires on report on the situation with the e-Natis system, with provider Tasima and to hear from bus fleet owners.

The first draft of the Bill was tabled before the Portfolio Committee of Transport as far back as 2015. Now a stage has been reached where the principle has been agreed to but whether it is practical or possible within existing structures is now the issue.  The next meeting is May 28

Owners & drivers

At the last round of hearings on the Bill after tabling, it was car hire owners and the South African National Taxi Owners Council (SANTACO) who had the most to say. The car hire association told MPs that developments in the pilot areas had reached a stage where hirers had made several vehicles “unlicenceable” because of a build-up of demerit points.

There followed unpractical administration problems for the owner, which they said was not the intention of the law.
Taxi operators, who will need to make returns on employed drivers, said that already had many problems when they found themselves unknowingly registering drivers with false driving details and addresses and which was culpable, resulting in fines for the owner plus receiving a double penalty of receiving demerit points.

Starting from zero

A Road Traffic Infringement Agency (RTIA) is now to be formed which will implement the AARTO system in the next financial year, each motorist starting with zero points reaching a maximum permissible twelve points when the licence will be suspended for 3 month.

The plan now, therefore, is for the new AARTO system to start in January 2018 on a national basis learning from pilots run in Johannesburg and Tshwane.

There are two systems involved. One, the most commonly used, is for driver/owners, the other is for owners who hire drivers, the latter having a demerit merit system based on regulations regarding the condition of the vehicle and driver registration.

The proposed Bill says its aims are to “Strengthen compliance with road traffic laws and payment of traffic fines.”

Black book

The RTIA will run a national road traffic offences register (on a similar basis to the sexual offences register) centralizing all driver infringements and offences, presumably under the umbrella of the centralised e-Natis system.

The Bill describes the circumstances under which offenders are served with a warrant issued by a magistrate’s court. Now clarified in the most recent portfolio committee meeting is the use of registered mail; the necessity to allow for time for postal services to execute delivery and for rehabilitation programmes for habitual infringers and continuous offenders.

DOT told parliamentarians that they have struck a deal with the SA Post Office whereby the issuing authority, whether local or municipal, will be charged a rate of R7.80 for a registered delivery.

Against

Detractors of the Bill have been the Johannesburg Chamber of Commerce and Industry, who say the demerit system will put many companies out of business and will result in “millions of vehicles” being taken off the roads causing labour issues.

AfriForum has brought an urgent application to the High Court. AfriForum’s legal consultant, Willie Spies, told parliamentarians that in their view it would be unconstitutional for a citizen to have to pay to exercise one’s rights, this being their interpretation of the AARTO system.

Spies stated that in many cases offenders will be punished twice for the same offence, this being by both by the courts and by the demerit system. “Nobody can be guilty twice”, he said and added that nobody should be punished by demerit system “when they have done the right thing by paying.”

Spies also said that the Bill “manages to introduce 2,055 new offences but nobody is being punished for reckless or negligent driving which is the main cause of death on the roads.”

At the coalface

The pilot system undertaken along the AARTO lines in Johannesburg and Tshwane was not apparently too successful, as observed by one metro police officer in making a report to the Portfolio Committee.

He said that offenders, when served with a ticket, seemed little concerned that the result would be that they were to be served with a warrant, since experience told them that the system failed to work and there was no judicial follow up if notices were ignored.

The complaining officer said that this particularly applied in the case of parking infringements.

A survey undertaken by the AA and with assistance from fuel company BP was quoted in detail to parliamentarians a number of times, highlighting that there was a vast difference in outcomes between minor infringements such as parking issues; driving through orange or red robot lights; not obeying yield signs and the more serious infringements of drunken and negligent driving. It was hoped, the report concluded, that the de-merit system would reflect this difference.

Bad culture

The survey results also indicated that 76% of South African drivers commit some sort of traffic offence on a regular or even daily basis indicating a systemic disregard of road traffic laws in SA. AA as a result appealed for early implementation of a demerit system to improve road safety.

The view of many parties to the hearings was that to include parking infringements in terms of the AARTO system would have little effect in improving upon road safety. AARTO, later in question time, qualified this by saying that municipalities and local councils face the costs of enforcement of any system and this had to be underwritten with multiple revenue sources, whether parking infringements or not.

DOT confirmed in the meeting that it had not only signed an agreement with the SA Post Office for all registered mail to be delivered at R7.80 a letter but this would apply to all the approximately 300 local councils and municipalities

They also advised that DOT would supply a AARTO system-training team that would visit all councils and municipalities and it was confirmed that AARTO would adopt both e-mail and text message systems for notification of fines/infringements.

Stationery and ticket books are now to be printed on a six-month lead basis, they said. DOT confirmed that there were still “challenges” on cross-border matters and that the Minister was dealing with such issues.

Down the line

ANC MP Mtikeni Sibande expressed disquiet that local councils might not be able to implement the AARTO system in the near future for any number of reasons leading to the possibility that the system would work in some areas and not in others. The Chair said they could only be concerned with the legislation, not how government did their work.

Finally, it was agreed that the Bill was nearing the point where it could go forward to the National Assembly for voting but MPs agreed that it might be wise to hear from more affected parties such as bus owners, even though hearings were now finalised.

MPs agreed that they would meet further after the recess to hear the results of the High Court case on the subject and the matter of the contract renewal of previous AARTO operating company, Tasima (Pty) Ltd, and whether the e-Natis system was yet fully under the control of DOT.  The meeting is due 28 May.
Previous articles on category subject
E-tolling: OUTA takes it to Parliament – ParlyReportSA
AARTO draft Bill on licence demerits for comment – ParlyReport

Posted in Fuel,oil,renewables, LinkedIn, Security,police,defence, Special Recent Posts, Trade & Industry, Transport0 Comments

Border Management Authority around the corner

SARS role at border posts being clarified ….

In adopting the Border Management Authority (BMA) Bill, Parliament’s Portfolio Committee on Home Affairs agreed with a wording that at all future one-stop border posts, managed and administered by the envisaged agency and reporting to Department of Home Affairs (DHA), were to “facilitate” the collection of customs revenue and fines by SARS staff present.

However, on voting at the time of the meeting, Opposition members would not join in on the adoption of the Bill until the word “facilitate” was more clearly defined and the matter of how SARS would collect and staff a border post was resolved.

Haniff Hoosen, the DA’s Shadow Minister of Economic Development said that whilst they supported the Bill in general and its intentions, they also supported the view of National Treasury that the SARS value chain could not be put at risk until Treasury was satisfied on all points regarding their ability to collect duty on goods and how.

Keeping track

Most customs duty on goods arriving at border controls had already been paid in advance, parliamentarians were told; only 10% being physically collected at SA borders when goods were cleared.

However, with revenue targets very tight under current circumstances both SARS and Treasury have been adamant that it must be a SARS employee who collects any funds at border controls and the same to ensure that advance funds have indeed been paid into the SARS system.

The Bill, which enables the formation of the border authority itself, originally stated that it allowed for the “transfer, assignment and designation of law enforcement functions on the country’s borders and at points of entry to this agency.”

Long road

It was the broad nature of transferring the responsibility customs of collection from SARS to the agency that caused Treasury to block any further progress of the Bill through Parliament, much to the frustration of past Home Affairs Minister, Malusi Gigaba.   It has been two years since the Bill was first published for comment.

DHA have maintained throughout that their objective is to gain tighter control on immigration and improve trading and movement of goods internationally but Treasury has constantly insisted that customs monies and payments fall under their aegis. The relationships between custom duty paid on goods before arrival at a border to Reserve Bank and that which must be paid in passage, or from a bonded warehouse was not a typical DHA task, they said.

Breakthrough

It was eventually agreed by DHA that SARS officials must be taken aboard into the proposed structure and any duties or fines would go direct to SARS and not via the new agency to be created or DHA.

This was considered a major concession on the part of DHA in the light of their 5-year plan to create “one stop” border posts with common warehouses shared by any two countries at control points and run by one single agency. More efficient immigration and better policing at borders with improving passage of goods was their stated aim.

Already one pilot “one stop border post”, or OSBP, has been established by DHA at the main Mozambique border post by mixing SAPS, DHA and SARS functions, as previously reported.

To enable the current Bill, an MOU has been established with SAPS has allowed for the agency to run policing of SA borders in the future but Treasury subsequently baulked at the idea of a similar MOU with SARS regarding collection of customs dues and the ability to levy fines.
Bill adopted

At the last meeting of the relevant committee, Chairperson of the PC Committee on Home Affairs, Lemias Mashile (ANC) noted that in adopting the Bill by majority vote and not by total consensus, this meant the issue could be raised again in the National Council of Provinces when the Bill went for consensus by the NCOP.

Objectives

The Agency’s objectives stated in the Bill include the management of the movement of people crossing South African borders and putting in place “an enabling environment to boost legitimate trade.”

The Agency would also be empowered to co-ordinate activities with other relevant state bodies and will also set up an inter-ministerial committee to handle departmental cross-cutting issues, a border technical committee and an advisory committee, it was said.

Mozambique border

As far as the OSBP established at the Mozambique border was concerned, an original document of intention was signed in September 2007 by both countries. Consensus on all issues was reached between the two covering all the departments affected by cross-border matters.

Parliament was told at the time that the benefit of an OSBP was that goods would be inspected and cleared by the authorities of both countries with only one stop, which would encourage trade. In any country, he explained, there had to be two warehouses established, both bonded and state warehouses.

Bonded and State warehouses

Bonded warehouses which were privately managed and licensed subject to certain conditions, were to allow imported goods to be stored temporarily to defer the payment of customs duties.

Duties and taxes were suspended for an approved period – generally two years but these had to be paid before the goods entered the market or were exported, MPs were told. The licensee bore full responsibility for the duty and taxes payable on the goods.

State warehouses on the other hand, SARS said at the time, were managed by SARS for the safekeeping of uncleared, seized or abandoned goods. They provided a secure environment for the storage of goods in which the State had an interest. Counterfeit and dangerous or hazardous goods were moved to specialised warehouses.

Slow process

MPs noted that it had taken over six years for the Mozambique OSBP to be finalised. SARS said there were many ramifications at international law but added two discussions with Zimbabwe for the same idea had now taken place. It was hoped it would take less time to reach an agreement as lessons had been learnt with the Mozambican experience.

On evasion of and tax, SARS said in answer to a question that losses obviously occurred through customs avoidance and evasion, so it was consequently it was difficult to provide an overall figure on customs duty not being paid, as evasion was evasion. Smuggling of goods such as narcotics, or copper, which could only be quantified based on what had been seized.

The same applied to the Beit Bridge border with Zimbabwe where cigarette smuggling was of serious concern and through Botswana.

In general, it now seems that Home Affairs is to adopt an overall principle of what was referred to as having one set of common warehouses for one-stop declaration, search, VAT payment and vehicle movement with a SARS presence involving one common process for both countries subject to a final wording on the SARS issue before the Bill is submitted for signature.

Previous articles on category subject
Border Authority to get grip on immigration – ParlyReportSA
Mozambique One Stop Border Post almost there – ParlyReportSA

Posted in Finance, economic, Fuel,oil,renewables, Home Page Slider, Justice, constitutional, Mining, beneficiation, Public utilities, Security,police,defence, Trade & Industry, Transport0 Comments

FICA Bill could meet new task force deadline

OECD money task force waiting for SA  

….sent to clients Feb 7…. Chairperson of the Standing Committee on Finance, Yunus Carrim, made it quite clear in terms of parliamentary rules that further debate on the FICA Bill aligning SA to global money laundering task force requirements are confined to the President’s reservations about the Bill’s constitutionality on the issue of warrantless searches. Nothing else was to be debated or considered despite attempts, he said.

After a “suspicious delay”, to quote the Democratic Alliance, of over five months during which the President unexpectedly failed to sign the Bill into law, it was suddenly returned to Parliament with the query a few days before closure for the Christmas recess.

Playing for time

It is suspected that the President’s office might have been making a pitch for more debating time on the Bill in 2017 and to allow the Bill to be re-scrutinised thereby causing further delay or even allowing for an ANC motion to reject the Bill.  This is according to one Opposition member on the Committee.

Following this, in a meeting hastily convened before Parliament closed, parliamentary orders were changed and Chair Carrim re-scheduled the Committee’s last meeting which was to be held on the Insurance Bill.  He instead scheduled an urgent meeting to debate the President’s move, calling for both legal opinion from the State Law Advisor and the attendance of National Treasury to learn of implications caused by the delay.

Next move

As of the result of this last-minute meeting, Parliament and Carrim have to some extent countered what seemed the purposeful delaying tactic.    The Committee agreed to call for written submissions only, preferably containing legal opinion, on only the constitutionality of Clause 32, section 45B (1C) on warrantless searches, saying only such will be allowed and no generalised observations on any other clauses or the rationale behind the Bill will be heard.

In the meeting, MPs expressed anger at the waste of public money and even Chair Carrim expressed his frustration of having to go back to the drawing board on a Bill that had already been passed. “I am getting too old for these kind of games”, he said.

Carrim concluded, “This Bill was approved by Parliament in its entirety and by a majority vote after many months of debate. Legal opinion was called for on many aspects and its signature into law was urgently required to meet international deadlines. In terms of the Joint Parliamentary Rules therefore, only the one aspect that the President has queried could be considered and the Bill was to be returned with the opinion of this Committeeafter a vote in the NA.

Advice sought

It was agreed by the Committee that legal counsel specifically would be sought on the constitutional aspects raised and this would be returned together with the Bill as it stood for signature in an attempt to convince the President not to refer the matter to the Constitutional Court and further delay implementation of a law approved by Parliament.

Adv. Jenkins, State Law Advisor, told Yunus Carrim that he could see no grounds for the contention that the circumstances of warrantless searches were not properly circumscribed in the Bill and were thus legal. It was established that FICA had already conducted some 380 warrantless searches.

Adv. Jenkins pointed out that in terms of the Constitution and Parliamentary rules the President could only return a Bill once to Parliament, whatever the specific subject or subjects.  Thus, this was the only issue that should be debated and considered by Parliament.

It would also be preferable, he said, to return also legal opinion based on supporting input from public hearings, but he advised that once again this should be confined to the subject matter, i.e. warrantless searches.

Country exposed

Meanwhile, President Zuma’s obviously purposeful delays have exposed South Africa to further detrimental opinion from the Financial Action Task Force (FATF) who are holding a plenary meeting of the OECD in Paris in February, Treasury deputy director-general Ismail Momoniat told Chair Yunus Carrim.

South Africa could well be slapped with a warning letter or even a fine at taxpayer’s expense for failing to sign into law amendments to the Financial Intelligence Centre Act, he said, and added that this would not be helpful at the time of a Standard and Poor financial rating exercise to be carried out in the New Year.

Local banks at risk

Even a mild rebuke from the Task Force could have significant consequences for SA, DG Momoniat said, since it would raise concern among foreign regulators and banks about SA’s commitment to vigilant financial regulation.     This in turn would have a ripple effect throughout the economy since correspondent relationships between the global network of banks are vital to effect payment for South Africa exports and imports.

Carrim responded that of the two bad options resulting from the President’s actions, the least damaging was to ignore OEDC opinion for the moment, take proper legal counsel on the issue and await the opening of a new session in late January/early February 2017 for a water-tight case to go back to the President’s office. DG Momoniat acknowledged that Treasury noted the course that was being adopted.

Jeremy Gauntlett S.C. was to be contacted and the question of warrantless searches be considered by him, the wording revised if necessary according to counsel given and the Bill returned to the National Assembly for adoption based on any revisions, if made.

Rules for submissions

The final position was therefore that all submissions to Parliament had to only deal with the constitutionality of section 45B (1C) dealing with warrantless searches in clause 32 of the Bill and those making submissions were requested to provide legal opinions for their arguments .

It was suspected that Black Business Forum and other groupings would make a determined effort widen the scope of the deliberations.

Any submissions on other provisions of the Bill, not the subject of the hearings, had to be made separately in more public hearings to be held on “Progress on Transformation of the Financial Sector”, tentatively set for 14 March 2017. Those additional hearings will be advertised separately, said Carrim’s parliamentary notice when published.

Previous articles on category subject

FICA Bill : Hearings on legal point – ParlyReportSA

FIC Bill hold up goes to roots of corruption – ParlyReportSA

Red tape worries with FIC Bill – ParlyReportSA

Posted in Energy, Finance, economic, Justice, constitutional, LinkedIn, Security,police,defence, Special Recent Posts, Trade & Industry0 Comments

Cybercrime and Cybersecurity Bill invokes suspicion

Cybercrime Bill stated as invasive

…sent to clients 28 Jan…   A new law to assist in enforcing South Africa’s fight against cybercrime, hacking and unlawful interception of data is about to be tabled in Parliament. As expected, the proposals are not without considerable misgivings in the private sector and involve claims that the state may have designs upon the control of free speech and/or are intent upon the control or manipulation of cyberspace.

The draft Cybercrime and Cybersecurity Bill (C&C Bill) has now been approved by Cabinet, the draft having been published for comment as far back as September 2015.  Industry players are deeply involved and the next platform for their involvement moves to the actual wording of the document that will form the basis for regulations.

Agents for the state

The legislation states that the proposals are designed to give powers to the State Security, Defence, Police and Telecommunications Ministers, which powers will not only extend into many aspects of South Africa’s key economic, financial and labour environments but will impose responsibilities on service providers.

The Bill clearly states it will call upon the private sector for compliance into order to meet its objectives and will also change the way the public service goes about its business to reflect the call for security.  Cross hairs are to zero in on the criminalisation of cyber-facilitated offenses including circulation of messages aimed at economic harm, contain pornography or could cause mental or psychological harm.

Parliamentary stage

The next stage of public sector involvement will be extensive parliamentary hearings, no doubt involving joint portfolio committees, to cover the many aspects involved.  Also to allow for further submissions on deep concerns in the private sector regarding compliance and intrusion of free speech rights.

The long and quite complicated process of drafting such legislation has been undertaken by the Department of Justice and Constitutional Development.  It is stated that the proposals are of an umbrella approach towards legislation already in the ambit of the new Bill, the objective of which is to extend any new regulations over a wide range of business endeavours and activities “in the public interest”.

Long history

The process started at a point in the cybercrime history log which seems a century ago.  A government gazette articulated what was necessary. “I, Mbangiseni David Mahlobo, Minister of State Security, hereby publish the National Cybersecurity Policy Framework as approved by Cabinet in March 2012 for public information.”

The long journey has finally resulted in a 130-page draft which firstly creates offences, prescribes penalties and regulates for powers to investigate, gain access, search and seize items. It gives such powers to the South African Police Service (SAPS) and the State Security Agency (SSA).

Future structures

The Bill then proposes that structurally the Minister of Police establish both a National Cybercrime Centre and appoint a director in charge – a person currently serving with the SSA – and similarly appoint such a director in charge for a “point of contact centre” for cybercrime activity, outreach and contact.

Monitoring all structures will be a Cyber Response Committee (CRC) made up of 13 experienced persons chaired by the DG, Dept. of State Security.

Any interventions at this level will be, by nature of the vastly changing business environment and the global challenge of the subject matter of the Bill, “which will form the critical point of balance between the forces of state control and public endeavour”.

Ground troops

Initially, the Minister of State Security is to appoint a director in charge of a proposed Cyber Security Centre, such person also serving with SSA and for the Minister to establish Government Security Incident Response teams, also appointing a person from the State Security Agency as the head of each specialised investigating team.

Finally, on structures, the Minister of Defence is to establish and operate a Cyber Command and appoint a General Officer Commanding.

Furthermore, provision in the Bill is made for the Minister of Telecommunications and Postal Services to establish and operate a Cyber Security Hub and appoint a director of same. It is in this area that assumedly the main interface between private and public sectors will take place.

Key points

An example of a database to be protected is given in the Bill as the Home Affairs database and the mandate for dealing with cybercrime clearly includes the fact that foreign states and South Africa will be co-operating to investigate possible offences.

Also, powers are granted to the President who may enter agreements with foreign states to promote cybersecurity. The proposals make it quite clear that international crime fighting and the local protection of cyberspace are to be woven together. This will involve changes to the anchor Electronic Communications and Transactions Act, particularly where the Act deals with attempts to deal with abuse of information systems.

The nitty gritty

Where the C&C Bill ventures into the private sector there will no doubt be, and certainly has been to date, plenty of debate.  The Bill as proposed, broadly and perhaps too grandly, allows for the imposition of obligations on electronic communications service providers (ECSPs) and financial institutions in respect of aspects “which may impact on cybersecurity”.

The difference between obligations and compliance seems a fine line but already the Dept. of Telecommunications has set up a website on https://www.cybersecurityhub.gov.za/ to try and clarify issues.

At what point?

The general obligations of ECSPs are a set out in the draft bill but an obligation is proposed that as soon as a ECSP “becomes aware of an offence being committed on its network”, the matter must be declared to the National Cybercrime Centre.

The offences are enumerated in the Bill but it is possible that clarity is required, according to stakeholders who have voiced opinions so far, as to who decides at and at what level the retention of a suspicion becomes an offence or to restate the problem, at what point does a suspicion become a reportable fact.

Proposed offences include unlawful interception of data; unlawful access, personal information and financial information-related offences; unlawful acts in respect of software or hardware tools; unlawful acts in respect of malware; unlawful acquisition, possession, provision, receipt or use of passwords, access codes or similar data or devices; computer-related fraud and computer-related extortion.

Extensive powers

Most focus on the fact that the Bill’s clause 58 gives the State Security Minister powers to determine what should be included in a “national critical information infrastructure”.

The Bill goes on to state that should it “appear” to the Minister that any information presented is of such “strategic nature” that any interferences, loss, damage, immobilisation or disruption which may result in prejudice to the “security, defence, law enforcement or international relations of South Africa; or prejudice the health and safety of the public; interfere or disrupt any essential service’, then the Minister may implement the powers granted by the Bill.

The “Apple” problem

Broadly speaking, also included is any malevolent act which “causes any major economic loss, destabilises the economy of South Africa or creates any form of public emergency’’ with the proviso that the organisation must “at its own cost take steps to the satisfaction of the Cabinet minister” to comply with a state request.

Any “affected organisation may be given the right to be afforded an opportunity to make representation” but, to repeat, players in the industry note that a great amount of responsibility has been delegated without clear definitions of what is reportable.

The background

The seriousness of the Bill and the recognition that cybercrime must be dealt with firmly is measured by the background given to the Bill.    It is estimated that cyber-related offences currently exceed a value of more than R1bn annually. This is escalating at speed, the Department of Justice states.

In general terms, one of the tasks of the Cybercrime Centre is stated in the revised draft as informing all of cybercrime trends and creating an environment which enables parties to report cybercrime without being suspected of whistle-blowing with the accompanying commercial disadvantages.

In other words, the fear with the original draft expressed by the Right2Know campaign that the draconian powers of seizure worried many in the IT industry and that lack of protection for whistle blowers was out of kilter with free speech requirements, may have to some extent been responded to.

Heavy hand of the law

Still, fines of up to R10m and/or 10 years’ imprisonment are involved following a guilty verdict for unlawfully accessing or intercepting “a national critical information infrastructure” involving “critical data”, which makes for a tricky scenario for ECSPs handling traffic and journalists handling information.

This is in the light that an ECSP could be liable on conviction to a fine of R10 000 for each day on which such failure to comply with disclosure requirements continues, it was noted.    To be specific, some fifty offences are detailed in the areas of data, messages, computers, and networks.

This is serious talk.   Whilst national cybersecurity needs are recognised as paramount, as the latest draft explains, the extent of state powers in the hands of uncontrolled and misdirected state effort gives concern to many in the ECSP business community, particularly in the light of the public nature of the internet.

No warrantless searches

On the other hand, whilst the C&C Bill gives SAPS and SSA extensive powers to investigate, search, access and seize assets wherever they might be located, the search powers granted are not emanating from the proposed Bill.

Search powers are only possible provided the search entity has a search warrant granted in the normal way, the department says.  SSA will be purely looking, they say, for data that has a feature of malevolence and commits crime in terms of the need to protect the State and its citizens.

At a briefing for the media, the Justice and Constitutional Development Department in Pretoria Deputy Minister of Justice and Constitutional Development, John Jeffery, gave a further assurance that what is about to arrive in Cape Town “will not give any powers to the State Security Agency (SSA) to control the internet or spy on local users”.

Criminal data

The search and seizure powers granted in terms of the latest draft of the C&C Bill around the interception of data “do not represent increasing the state’s surveillance powers”, the Minister said.

“As part of the final draft of the bill, it says that to prove an offence in a court of law, data must be seized as evidential material.  If the State cannot seize evidential material to adduce as evidence, it is impossible to prove the guilt of an accused person. “

The criminal procedure act is currently used to investigate cybercrimes, Minister Jeffery said, and to this end the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA) “are already in the tool box”.

Anchor still RICA

The C&C Bill is merely extending the RICA from that aspect, he said, which already has basic general principles in place to protect persons against unlawful interception of communications. “There is thus no extension of the so-called ‘surveillance powers’ of the State”, he added.

He confirmed that previous versions of the Bill, whilst stating a person who fell foul on the issue of state information that was classified as secret could go to jail for 10 years without the possibility of a fine, now, the final draft of the Bill acknowledges that journalists and whistle-blowers have protection under the Protected Disclosures Act.

Minister Jeffrey said was satisfied that the C&C Bill, now headed towards its final shape, gives the State the tools to halt crime and bring those who used data as a tool of crime to book.

 Defining data

He concluded, “Data is merely a means to commit offences such as fraud, damage of programmes and computer systems, extortion, forgery and uttering. It can also be used to commit murder by remotely switching of a respiratory system or terrorism by overloading the centrifuges of a nuclear station or remotely opening the sluices of a dam which causes large scale flooding.”

Much of what will come up in the parliamentary hearings of submissions will most likely involve the space occupied by the ECSPs and their responsibilities as perceived by the State. Furthermore, the role to be played by any business institution using large amounts of data needs to be clarified as far as areas of compliance are concerned.

Previous articles on category subject

Draft Cybercrime Bill drafts industry – ParlyReportSA

South Africa on international cybersecurity – ParlyReportSA

Broadband allocation could involve SABC – ParlyReportSA

Posted in Communications, LinkedIn, Security,police,defence, Special Recent Posts, Trade & Industry0 Comments

Medicinal use of cannabis makes progress

Medical Innovation Bill and cannabis

..sent to clients 18 Dec… Dr Narend Singh who took over the tabling of the Private Members’ Medical Innovation Bill from the late Dr Mario Ambrosini, said that he was so impressed by the progress of the Department of Health (DHA) in their support of the use of cannabis for medical purposes that he could see the possibility arising where he could withdraw his Members’ Bill in favour of broader legislation tabled by the Minister of Health.

He said “there was light at the end of the tunnel” and he himself was on a “high” to learn from Dr Joey Gouws, in charge of regulatory and legislative enforcement at DHA, that regulations on the growing of cannabis, manufacture, dispensing and medical use for medicinal purposes could be in place by the end of 2017 including registration processes and classification systems.

Holistic approach

Dr Gouws was briefing the Parliamentary Portfolio on Health on progress towards the commencement of such a programme and which not only covered the medical use of cannabis as proposed in the Medical Innovation Bill but covered research, registration, manufacture and the scheduling of substances.    Separate legislation would be in parallel amending such Acts as the Drugs and Drugs Trafficking Act.

Regulations were a draft form stage in authorising permits for use by practitioners, analysts, researchers or veterinarians.      In fact, said the DHA team presenting the update to parliamentarians, it might be possible to see certain herbal products with limited THC levels available within three months.

 Worldwide

Dr Gouws said that in the United Kingdom similar legislation, to be enacted, provided for innovation in medical treatment and allowed medical doctors to depart from medical treatments for a condition but the UK Bill did not specially address the use of cannabis. In South Africa, it will be allowed for under specific prescribed conditions for the treatment of certain medical conditions and for education, research and analysis.  Similar legislation in Australia and Canada had been studied.

Patients that are proposed for eligibility are those with severe pain, nausea, vomiting or wasting arising from cancer and HIV/AIDS, including treatment. Muscle spasms and severe pain associated with multiple sclerosis and seizures from epilepsy where other treatment options have failed or have intolerable side effects. Severe chronic pain is included as part of the proposals for indications.

Crop trials completed

The Department of Agriculture, the DHA team said, has justMedicines Control South Africa forwarded the outcome of cultivation trials at four agricultural research facilities jointly overseen by both departments. This would now be disseminated and assessed, which results would form part of the ongoing research by the Medical Research Council and other academic research centres involved in the future clinical use of cannabis.

Currently, cannabis is listed as a Schedule 7 prohibited substance but regulations will shift this towards Schedules 3-6 which are prescription-only medicines with authorised prescribers.   Scheduling decisions involve levels of toxicity and safety; the proposed indication for a substance; the need for medical diagnosis before prescribing; the potential for dependence, abuse and misuse and access disciplines.

Certain cannabis products are prescribed at present but unregulated illegal herbal cannabis, Dr Gouws said, which is grown incorrectly and bought from the black market will have unknown concentrations of THC’s and cannabinoid concentrations combined with potentially harmful ingredients.   Cannabinoid drugs currently used are Dronabinal for loss of appetite during severe illnesses, Nabilone for nausea under similar conditions and Sativex for spasticity.

Conditions of use

If legalised, it will be proposed that objective evidence to support the proposed use of cannabinoids in whatever regulated form must be provided; the manner and duration of treatment provided; a patient must be monitored to ensure efficacy; the treatment outcome reported upon; the physician involved must be a specialist and informed consent by the patient or legal representative obtained.

In questioning the DHA, parliamentarians were particularly concerned that appropriate measures amending the Drugs and Drugs Trafficking Act, the criminal Procedure Act and the Medicines and Related Substances Act were undertaken. One MP remarked that there must be no question of unintended consequences with law enforcement processes in order that criminal procedures under certain circumstances involving cultivation, marketing, administering and research can be clearly separated and easily understood by the South African Police Service.

Dr Joey Gouws said that this matter had already been investigated and the issues involved were with the State Law Advisor at this very moment. It appeared that they were satisfied. The framework for medical use and research had also been submitted, which also included the licensing of growers using controlled cultivation methods for medical, scientific and research purposes. There were various cultivars of cannabis which had different medicinal properties, she said.

Quality controls

The framework being worked to by DHA also includes reaching a standardised, quality assured product for medical use indications, bearing in mind that clinical decision-making in terms of Section 22A(9)(ii) and Section 21 of the Medicines Act must be made to the scheduling of products, Dr Gouws said.

For a while, Dr Joey Gouws said, cannabis as a medicinal drug for pain may remain as a Section 21 drug as things exist until all regulations were in place and registration and classification complete, so that the use could have a controlled start.  Herbal classifications may be allowed far earlier.

ends

 

Posted in Facebook and Twitter, Health, Justice, constitutional, Land,Agriculture, LinkedIn, Security,police,defence, Special Recent Posts0 Comments

Liquor licensing may have impractible conditions

DTI gets tough with age limits

...sent to clients 17 Oct…..   In what will be a tough ask, Minister of Trade and Industry, Robliqour-store Davies has proposed a number of changes to the National Liquor Act, the most contentious being to raise the legal minimum age for purchasing liquor from 18 to 21 years of age. The call for public comment on the draft National Liquor Amendment Bill as gazetted closed on 30 October.

The Department and Trade and Industry (DTI), who deal with liquor licensing at a national level, state that South Africa has globally the worst figures for alcohol related accidents and anti-social incidents involving liquor abuse.

Drastic steps had to be taken to gain control of alcohol related injuries, illnesses and abusive behaviour that were costing the state some R40bn a year, the Minister said.

Younger age groups

The Bill focuses specifically on youth since DTI maintains that alcohol abuse specifically damages the development of the brain making youth vulnerable. Liquor advertising aimed specifically at young persons will be prohibited under the Act and revised rules set down on broadcast times and content. Advertising billboards aimed at youth will be banned from high density urban areas.

Minister Davies called for “robust public engagement on the issues raised in the Bill” as it dealt with matters “that are of significance to South African society.” He noted that South Africans consume alcohol related products at double the world average rate.

On the question of the age threshold proposed in the draft Bill is a minimum purchasing age, not as has been widely reported a “minimum drinking age”. The onus of establishing age will fall upon the supplier who must take “reasonable steps to establish age” when dealing with a young purchaser.

Pressure point

A civil liability will now fall upon the manufacturers and suppliers as well who knowingly breach the new regulations, Minister Davies said, believing that this was the only way to get the problem understood and the new rules adhered to.

sab-youth-beer-adThe draft Bill states that responsibility will also fall upon the seller not only not to supply liquor to a person visibly under the influence of alcohol but that the seller could be in addition asked to show reason why they should not bear costs for damage incurred as a result of a subsequent accident involving that person who made the purchase.

On the problem of community issues, such as tackling foetal alcohol syndrome which is considerably worse in South Africa than elsewhere in the world and alcohol related crime, the onus of proof will shift not only to a supplier but also to manufacturers to show that reasonable steps were taken to ensure that liquor is not sold to illegal or unlicensed outlets. Which brings up the issue of liquor licences.

Distance from community

Licensing is a provincial matter and there are a number of changes that the amending Bill police-raidwill make to the anchor Act which will have to be abided by. Particularly notable is the proposal that licences cannot be granted to an outlet less than 500 metres from any school, recreation facilities and places of worship.

Provinces are stated as “having an obligation” to be far stricter in granting licences in highly urbanised areas, giving due regard for the need for stricter business hours and for the need to deal with noise pollution in stressful living conditions.

Previous articles on category subject
New health regulations in place soon: DoH – ParlyReportSA
Licensing of Businesses Bill re-emerges – ParlyReportSA
Medicines Bill : focus on foodstuffs – ParlyReportSA

Posted in Justice, constitutional, Security,police,defence, Special Recent Posts, Trade & Industry, Transport0 Comments

FIC Bill hold up goes to roots of corruption

Bill originally approved by Cabinet

.….. sent to clients 20 Aug…..Going to the heart of the issues facing National Treasury on money launderingzuma9 and financial crime, or in this specific case the Financial Intelligence Centre Amendment Bill (FIC Bill), is the failure of President Zuma to give assent to the Bill and to sign it into law.

The delay in adding his signature gives yet another signal that there is lack of interface in constitutional terms between the Presidency, the Cabinet, National Treasury and Parliament and all of this adds more uncertainty in the economic sphere.

fic-logo-2The main objective of the FIC Bill is to conform with international pressure placed upon South Africa to update its governance ability to monitor international financial crime. During the passage of the Bill, however, it became quite evident to interested parties that the Bill could expose a lot more about South Africa’s own internal money laundering, inflows and outflows, than simply making a contribution to the global money laundering problem.

This, of course, was the original point made by international agencies when calling upon countries to agree to such legislation.    Countries have to clean up their own affairs in the process.

Crime busting

Africa MoneyThe Bill intends enhancing South Africa’s anti-money laundering (AML) processes to combat more effectively the crime of financing of terrorism to be achieved by amending the anchor Financial Intelligence Centre Act “so as to define certain expressions”.

However, in exposing monies destined for terrorism, a lot more than just terrorism could become evident in the category to be classed as “prominent persons”, a fact which has been endlessly debated in Parliament and why the Bill has come to the fore in the media.

More entrants

The fact that some in the Cabinet may not like the preamble to the Bill is evident, particularly expressed byzwane Minister Zwane in his ridiculous call for a judicial investigation to investigate the motives for calling the banking sector to report to Treasury on individual groupings and persons and for an investigation into the banks themselves for closing the accounts of certain “prominent persons”.

The target of Minister Zwane’s diatribe, the major banks, are a grouping simply preparing for the FIC Bill to become law since they know it was tabled by the Minister of Finance, having been approved by the Cabinet in the first place and having made considerable input to the parliamentary process. Also they must realize that the Bill in turn will make considerable demands upon them in terms of time and money and will be a test of integrity for all.

Split in the ranks

ramaphosaThe delay, even if for a moment, is one of many factors giving rise to the belief that the Cabinet is “at war with itself”, a fact which Deputy President Cyril Ramaphosa admits. President Zuma attempted dismally at first to distance himself from Minister Zwane’s attack on the banks, then seemingly relented but suspiciously will not let the banks proceed with the FIC Bill by making it law to set up the paper trails.

Commentators say the President is effectively involved in a web of issues involving alleged “state capture” and perhaps therefore instructions to hold up the Bill maybe upon advice from elsewhere from parties involved in the bigger picture.

No stroke of the pen

However, the very act of signing or not will eventually show if it is the President is alone in this matter since a cabinet statement in 2015 stated that the Cabinet had approved for the Bill for tabling.Parliament awaits, holding its breath, for clarification from the Presidency.  President Zuma is now, of course, embroiled on issues over the Public Protector’s report on “stature capture” by the Gupta family and, like so many other important state issues, the FIC Bill has gone on to the back burner.

In the meanwhile others, including actors who would definitely be defined as “prominent persons” as defined by the new Bill, are now crowding the stage and expressing their views, so the FIC Bill must be touching a raw nerve somewhere.

The old argument

jimmy-manyiDespite the Bill being passed by State Law Advisors, now one Jimmy Manyi, previously a corporate public affairs head, a DG in the Department of Labour and previously a Cabinet spokesperson and recently President of the Progressive Professionals Forum – all in a short period of time – has lodged a constitutional challenge to the Bill, presumably on the basis of invasion of rights regarding pr1vacy. 

MPs have complained that the Bill in question has been debated at length over one year at portfolio committee level; hearings were conducted with public expression therefore being accounted for and finally the Bill was passed by a unanimous vote in the National Assembly.  Whether nefarious or not, one must assume that any delay by the President is for good financial reason and bearing in mind the call is in fact an international call to upgrade the SA money laundering watch, the stakes are high.

At this stage nothing is stated as fact and rumours abound.     An exasperated Minister of Finance Gordon Pravin stated in an interview run by E-NCA, “Well if I can’t get the Bill through then we must just try something else.” He added, “They had just better come and arrest me. What have I done?”, he asked.

The aim

pravingordhanIndeed, the parliamentary record shows quite clearly what Minister Pravin has done.    By introducing this Bill and having had it agreed to in the National Assembly, a paper trail  is to be established in conjunction with banks on any suspicious movement of money involving “prominent persons”.   Locked cupboards will be looked into therefore and it seems as if someone or a section in the Cabinet  has had second thoughts about the Bill.

Hopefully, the stall is only temporary and the Public Protector’s report is released

Aims of Bill

Treasury originally said in their briefing to Parliament that the four principal objects of the Bill were to align the country with international standards on AML and to counter terrorist bodies; to enhance customer due diligence within financial institutions; to provide for the implementation of the UN security council resolutions relating tomoney laundering the freezing of assets of persons suspected of financial crimes; and for the FIC to introduce a risk-based approach by financial entities to the current aspects international financial crime.

Treasury countered any argument that dis-investment would be encouraged by the Bill with the answer that a lack of compliance with international rules by South would be worse but now the silence on the FIC Bill seems to have taken a back seat in National Assembly questioning in the face of rows over state funding, “state capture” and individual financial investigative probes.

Prominent persons

yunus carrimMuch debate, took place at the time within the Standing Committee on Finance when the Bill was originally debated over the definition of “prominent persons both domestic and foreign”. These were the persons who were to be monitored as part of the Treasury’s appeal to banks “to know their clients better”. The meetings were chaired by the obdurate, diligent and politically respected Yunus Carrim (SACP) and finally recommended to the House.

Treasury’s Ismail Momoniat was at pains to state to Parliament at the time that “there was no implication or presumption that prominent persons being investigated were presumed to be involved in any financial crime.”

Getting to know you

Probably the provisions most likely to affect entities operating in South Africa are the clauses affecting due diligence. Those that are accountable in terms of the Act will be required to undertake ongoing customer due diligence overviews in order to establish the identity of “the beneficial owner” and a customer’s full identity and whereabouts.

This might be where the problem lies for Cabinet, not necessarily just about the “G people”, as referred to indavid maynier Parliament by David Maynier, Shadow Finance Minister (DA), but which might involve issues of party funding – the sources of which at the moment do not have to be declared to Parliament.

Objective views

As put by Roger Southall, Professor of Sociology, University of Johannesburg and quoted in précis form by Creamer Polity, “The ANC is appropriately anti-corruption in its official stance, and indeed has put in place important legislation and mechanisms to control malfeasance. Equally, however, it has proved reluctant to undertake enquiries which could prove embarrassing.” Parastatals still account for around 15% of GDP, Southhall notes.

Whilst Minister Lynne Brown said she was determined to overhaul all state entities, nobody its seems was ready for President Zuma to assume the chair of the new idea of a State Owned Enterprises Council, meaning that he is in charge of para-state strategy – the policy of which was announced many months ago in that government wants a greater slice of the R500m spend on goods and services to go to emergent suppliers.

President Zuma said in Parliament on that issue that the reason for the consolidation was to bring about cross-cutting coordination as a policy within state utilities.

Getting control

Southall continues in his article in similar vein, “The ANC continues to regard the parastatals as ‘sites of transformation’ with certain corporations distributing financial largesse to secure contracts and favour from government. However, their success in so doing is hard to prove given the secrecy of party funding. Secondly, ANC politicians at all levels of government have sought to influence the tender process in their favour.”

On the good side, the Department of Public Service and Administration has, for instance, a draft a Bill underway for Parliament that will require all government departments to put in place measures to prohibit employees and those in special consultancy positions from “directly or indirectly” doing business with government.

Furthermore, the Public Finance Management Act, signed by President Zuma, has proven to be a well-tuned tool to control misdirected state expenditure. The FIC Bill will be the anchor legislation needed to dig deeper into AML money movements.

Who blinks first

fic-bookWith the FIC Bill, the next move then must come from the Presidency, if he remains in  office, to give good reason to send the Bill back to the Parliament despite the agreement of the South African banking system to comply with Treasury requirements to report. This is a day-to-day developing issue.

Quite clearly, some banks have forestalled their problems by refusing to handle certain business banking accounts of “prominent persons”, perhaps pre-empting that the Bill would receive Presidential assent and thus earning the ire of Minister Zwane “in his personal capacity”.

Whether the FIC Bill might get further to the very roots of the party funding system is another matter but for the moment the focus was on “prominent persons” and the necessity to get the banks into action in terms of the law.

Meanwhile, the Portfolio Committee on Trade and Industry will continue to debate the “Twin Peaks” legislation which will again tighten up on banking and financial procedures on both regulatory and prudential aspects. But here again, there might be delays.

Previous articles on category subject
Red tape worries with FIC Bill – ParlyReportSA
Parliament, ConCourt and Business – ParlyReportSA
PIC comes under pressure to disclose – ParlyReportSA

Posted in cabinet, earlier editorials, Finance, economic, Home Page Slider, LinkedIn, Security,police,defence, Trade & Industry0 Comments

Broadband allocation could involve SABC

ICT White Paper to set up broadband allocation…

An Integrated ICT White Paper involving broadband allocation is in its final stages of preparation involvingSiyabonga Cweley consultation with various parties, said Telecommunications and Postal Services Minister, Siyabonga Cwele, during his Budget vote speech to Parliament.  This matter is a long outstanding issue in the industry and delays are imperiling broadband development.

What has concerned Opposition members during earlier parliamentary meetings on the subject was the remark by the Minister that “Some of the delay has been the delay to allow the Department of Communications to make a contribution to the decision regarding allocation across the spectrum and how this would be applied.”

This remark must be seen in the light of the fact that the two ministries and departments were split some five years ago and the conclusion is that Minister Faith Muthambi and the SABC under it’s new and controversial head of broadcasting, Hlaudi Motsoeneng, has been drawn into the equation.

Minister Cwele also said at the time that also added that his Ministry was working with Treasury to establish a “funding model” for the broadband “roll out”, estimated at R67bn.

Spectrum policy included

In his budget speech, Minister Cwele re-affirmed that the White Paper would be supported by a new Spectrum Policy Paper in order to provide for “open or public access networks and opening up the use of high demand broadband spectrum for use by all licensees while adequately compensating those who invest in infrastructure.   All South Africans must benefit from participation in the digital society, he said.                                  ‘

Until now, there have been a number of unfortunate reasons for the holdup in broadband which have been given by government in parliamentary meetings to date. With both DTPS and Minister Cwele present at the most recent parliamentary meeting before Parliament with ICASA as the regulatory body also  present, it became quite evident  that the two were at loggerheads on the manner and method of spectrum allocation.

Different signals

Minister Cwele, during the portfolio meeting, prioritised his department’s requirement as being the need to

transform the sector to ensure meaningful Black participation when allocation takes place. ICASA meanwhile placed far less emphasis on this, preferring an allocation on an “auction” basis style whereby bidders not only name their price but declared their additional contributions to Black upliftment and general social and community development programmes, knowing this would more likely attract outside investors.

Dr. Cwele admitted at the time that “broadband allocation is perhaps the biggest regulatory bottleneck in the South African deployment of wireless technologies at the moment.”

Minister says industry “monopolistic”

In his subsequent budget vote speech he notably remarked, “Radical supply side interventions will reduce barriers to investors by moving away  from monopolistic infrastructure allowing for competition in opening access tobroadband broadband networks”.

The Minister told MPs in his speech that the White Paper will provide for “a simplified, streamlined and nationally coordinated framework to accelerate the use of networks meaning, he said, a capability to “drastically reduce the costs to operators and, down the line, to consumers.”

This issue has been plaguing the South Africa consumer market for a number of years, he added, and it was widely accepted that with the growth of cell phone usage by all income groups, he said, the present pricing cannot continue at the expense of ordinary households.

Domestic WiFi roaming

Separately, private sector operators such as Cisco have said that any such move will present mobile operators intelecommunications South Africa with a tremendous opportunity to optimize capital and operational expenditures and improve user experience.

From discussion after the Minister had spoken, it emerged also from MPs that the more mobile data offloaded makes viable alternative to mobile broadband users in crowded locations such as shopping malls where spectrum availability for present mobile access to networks is limited.   In addition, it was noted that a bigger data offload will give operators the opportunity to reduce data costs, allowing them to accelerate adoption of competitive market share opportunities. The Minister made no comment on this and it was clear that the BEE component was a ministry priority.

Crosscutting in government

HlengiweMkhizeThe Deputy Minister of Telecommunications and Posts, Hlengiwe Mkhize, followed up the Minister in her address to the committee by focusing on “discussions taking place with the labour, public service and administration and higher education and training departments to boost ICT skills.”    She also mentioned that the White Paper would map out some of the internet connectivity plans for the rural economy to stimulate growth and opportunities.

In response to both Minister’s briefings, the following day in debate Opposition members said as far as the public service use of broadband was concerned in all aspects of communications, health and education, “it was time for the discussions to stop withe other departments and for the roll out to begin.”

 MPs noted the comment that out of 46 African countries surveyed, the cheapest mobile prepaid product in South Africa is still nearly 7.5 times more expensive than the African continent’s cheapest similar product.   The South African government is one of the smallest users of broadband facilities in the world, according to Cape Town based Research ICT Africa.

 Previous articles on category subject  

Broadband allocation on its way – ParlyReportSA

Govt and Nersa differ on broadband – ParlyReportSA

Overhaul of broadband policy underway – ParlyReportSA

Parliament gets final dates for digital TV – ParlyReportSA

Posted in Communications, Facebook and Twitter, LinkedIn, Public utilities, Security,police,defence, Special Recent Posts, Trade & Industry0 Comments

Border Authority to get grip on immigration

Border controls for trade as well…..

A Bill enabling the formation of an overall border authority to be known as the Border Management Authority has reachedborder lebombo Parliament following its publication for comment last October by the Minister of Home Affairs. The legislation will “allow for the transfer, assignment and designation of law enforcement functions on the country’s borders and at points of entry to this agency.”

The Authority’s objectives include the management of the movement of people crossing South African borders and putting in place “an enabling environment to boost legitimate trade.”  The Authority would be empowered to co-ordinate activities with other relevant state bodies and will also set up an inter-ministerial committee to handle departmental cross-cutting issues, a border technical committee and an advisory committee.

Mozambique border

sa moz logoThree years ago, Kosie Louw, then chief legal officer at SARS, told Parliament that a “one stop border post” to handle customs and immigration was being established at the Mozambique border.

An original document of intention was signed in September 2007 by both countries and consensus on all issues was reached between the two covering all the departments affected by cross-border matters.
Kosie Louw told the standing committee at the time that on finance the benefit of an OSBP was that goods would be inspected and cleared by the authorities of both countries with only one stop, which would encourage trade. In any country, he explained, there had to be two warehouses established, bonded and state warehouses.

Bonded and State warehouses

Bonded warehouses, he said, which were privately managed and licensed subject to certain conditions, were to allow imported goods to be stored temporarily in order to defer the payment of customs duties.

Duties and taxes were suspended for an approved period – generally two years, Louw said, but these had to be paid before the goods entered into the market or were exported. The licensee bore full responsibility for the duty and taxes payable on the goods, which could be removed only after all the customs requirements had been met.

State warehouses on the other hand, Louw said at the time, were managed by SARS for the safekeeping of uncleared,
detained,state warehouse seized or abandoned goods. They provided a secure environment for the storage of goods in which the State had an interest. Counterfeit and dangerous or hazardous goods were moved to specialised warehouses.

MPs noted that it had taken over six years for the Mozambique OSBP to be finalised which to them seemed an unduly long period. The SARS response was that that were many ramifications at international law but he added they had already had two discussions with Zimbabwe at that time.

Slow process

South Africa, he said, was looking at the establishment of more such posts and it was hoped it would take less time to reach an agreement as many lessons had been learnt through the Mozambique experience.

SARS, said losses obviously occurred through customs avoidance and evasion, so it was consequently very difficult tosa border beit bridge provide an overall figure on customs duty not being paid as evasion was evasion. Smuggling of goods such as narcotics, or copper, which could only be quantified on the basis of what had been seized. The same applied to the Beit Bridge border with Zimbabwe, where cigarette smuggling was of serious concern.

The overall principle of what was referred to then as an OSBP was for both countries to have one set of common warehouses for stop, declaration, search, VAT payments to South Africa. involving therefore vehicles going through only one process for both countries.

It seems that the new Bill is building on that experience but the whole process is taking an inordinate period of time put down to the fact that so many departments in two or three countries have to be consulted and consensus obtained.
Previous articles on category subject
Home Affairs gets tough on expired visas – ParlyReportSA
Customs Duty Bill cuts out inland ports – ParlyReportSA
Home Affairs fails on most targets – ParlyReportSA

 

Posted in Home Page Slider, LinkedIn, Security,police,defence, Trade & Industry0 Comments

Draft Cybercrime Bill drafts industry

sent to clients 12 October…..

Justice dept to combat cybercrime…..

cybercrimeA draft Cybercrimes and Cybersecurity Bill has been released for public comment by the Ministry of Justice and Constitutional development, proposing to introduce a number of measures to combat cybercrime in South Africa.

With the publication came the worrying but suspected statement that it was estimated  that cyber-related offences are escalating considerably and “currently exceed a value in excess of R1bn annually.” The Minister stated that it was the department’s view that the development of the proposed legislation “was a milestone towards building safer communities as envisaged in the National Development Plan” and aimed at putting in place “a coherent and integrated cybersecurity legislative framework to address various shortcomings which exist in dealing with cybercrime” in South Africa.

Powers

The Bill proposes regulations to allow a national cyber entity, “to investigate, search and access, or seize, as well aspects of international cooperation in respect of the investigation of cybercrime.”

Offences

Offences include “Personal information and financial information related offences; unlawful access; unlawful interception of data; unlawful acts in respect of software or hardware tools; unlawful interference with data; unlawful interference with computer device, computer network, database, critical database, electronic communications network or National Critical Information Infrastructure, unlawful acts in respect of malware; unlawful acquisition, possession, provision, receipt or use of passwords, access codes or similar data or devices; and, finally, any computer related fraud.”

The list of offences continues with “Computer related appropriation; computer related extortion; computer related terrorist activity and related offences; computer related espionage and unlawful access to restricted data; prohibition on dissemination of data message which advocates, promotes or incites hate, discrimination or violence; prohibition on incitement of violence and damage to property; prohibited financial transactions; infringement of copyright; harbouring or concealing person who commits an offence; attempting, conspiring, aiding, abetting, inducing, inciting, instigating, instructing, commanding, or procuring to commit an offence.”

Power of Internet

Whilst the list seems long, the Bill indeed gives some idea of the levels to which cybercrime has nowcybercrime3 reached but it also indicates the many forms of crime have turned to the Internet as a vehicle for criminal activities, both locally and internationally.

In addition, South Africa’s President is being given powers to “enter into agreements with foreign states to promote cyber security.”

The government is to establish what exactly are “national critical information infrastructures” and will provide for the establishment of a “point of contact” and various structures to deal with cyber security. Wording later in the Bill indicates that this will be called the “National Cybercrime Centre”.

National Cybercrime Centre

Once again, the communications industry is called upon to assist and impose “obligations on electronic communications service providers with respect to cyber security.” This is the clause that is bound to cause offence, even rejection because of cost and which appears to ask providers to do the work and with stiff penalties of up to R10,000 a day for every day the matter is not reported to the National Cybercrime Centre.

The clause reads, “An electronic communications service provider that is aware or becomes aware that its computer network or electronic communications network is being used to commit an offence provided for in this Act must (a) immediately report the matter to the National Cybercrime Centre; and (b) preserve any information which may be of assistance to the law enforcement agencies in investigating the offence, including information which shows the communication’s origin, destination, route, time date, size, duration and the type of the underlying services.“

Who is responsible

Earlier this year, at a cybercrime symposium in Johannesburg, the Minister of State Security said, “The Government’s approach in dealing with this matter is premised on the policy principle that national security, which includes the security of the information and communications technologies in the country, is a responsibility of the structures responsible for security in the Republic.”

This statement, when re-read, can obviously work in many ways and the Bill appears to do just this.

Other articles in this category or as background

http://parlyreportsa.co.za/communications/south-africa-needs-international-cybersecurity/

 

 

Posted in Communications, Finance, economic, Justice, constitutional, LinkedIn, Security,police,defence, Special Recent Posts0 Comments

South Africa on international cybersecurity

Cybersecurity for SA to fight cybercrime….

A Green Paper for discussion on fighting cybercrime in South Africa is expected before the end of the year, Minister of State Security, David Mahlobo, said in his budget vote speech and a Bill setting up a Cybersecurity Agency by the end of next year will be enacted, developing upon the current ad hoc response to cybercrime events.

cybercrimeExperts in the industry are hoping that the Green Paper will recommend private/state partnerships.

Some time ago the African Union called on each of its member nations to develop a policy on cybersecurity but experts complain that South Africa has no a culture of cybersecurity and is falling behind on partnerships that would enable the country to defeat what the United States has named as one of the greatest threats to its own national security.

Fraud flooding SA

With hundred of incidents a day in South Africa affecting households, banking institutions and financial houses, let alone those which affect international security and crime and policing matters, Minister of State Security, David Mahlobo, has undertaken to finalise a South African National Cybersecurity Policy during the current financial year.

A National Cybersecurity Policy Framework was promised as far back as 2012 in response to a committee set up, tasked with monitoring the implementation of such a policy.  South Africa already has an Electronic Communications Security Computer Security Incident Response Team but this is acknowledge as a “pro tem” arrangement.

Small team of experts

Minister Mahlobo announced that a Cybersecurity Bill would be drafted setting up a
“Cybersecurity Centre sphere” which would “enhance the work of this small team” and the body in terms of the new Bill would become a government agency reporting to his department.

He also announced that a Green Paper expanding on intelligence needs in this area would be tabled in computerSchoolCabinet for approval during the third quarter of 2015/16. With broadband penetration becoming so pervasive in Africa, the 20% of Africa’s citizens now connected to the web are particularly vulnerable, it was noted.

The AU paper on cybersecurity generally describes four cyber-related components specified by the AU convention which should be invested in, namely a national, publicly available cybersecurity policy; cyber public-private partnerships in the national interests communicating with other countries; cybersecurity capacity building and training and a plan for developing a culture of cybersecurity countrywide.

Policy paper then Bill

As stated, the first component is that South Africa should undertake to develop, in collaboration with stakeholders, a national cybersecurity policy… and outline how the objectives of such a policy are to be achieved.   At last this is being dealt with.

Local IT experts have called for the department to adopt measures and a plan to develop capacity building with a view to offering training on all areas of cybersecurity and a clear policy which sets standards for the private sector and developers.
Other articles in this category or as background
Lack of skills hampering broadband rollout – ParlyReportSA
More state powers for ICASA proposed – ParlyReportSA
SAPS still trying to computerise – ParlyReportSA

Posted in Communications, Facebook and Twitter, LinkedIn, Public utilities, Security,police,defence, Trade & Industry0 Comments

Chevron loses with Nersa on oil storage

 

Nersa appeal in favour of Burgan….

cape town harbourWhether Chevron would or would not close down its refinery in Cape Town was asked twice by MPs during a debate in the Portfolio Committee on Energy on the licence supplied by the National Energy Regulator (NERSA) for the construction of a new oil tank terminal to be constructed at Cape Town harbour.

The storage facility, comprising twelve tanks with loading facilities, is to be constructed next to the Eastern Mole berth by Burgan Cape Terminals, a subsidiary of international oil trading merchant Vitol in which local BEE companies, Thebe Investments and Jicaro Ltd., have a 30% stake.

Crompton says move “a ploy to ransom”

Dr Rod Crompton, NERSA’s Regulator, said he thought that such a move by Chevron as closing the rod cromptonrefinery was unlikely and the possibility, as stated by Chevron in their appeal, was just a ploy to “ransom” the government in denying Burgan the licence.”

There were some 13,000 jobs involved at Chevron and he said “I cannot see Chevron pulling out.”

Dr Crompton expanded on this by saying that Chevron’s objection had come at a particularly sensitive point in the oil industry’s history when possible government subsidies were being argued about, with refineries calling for help in a re-build programme to meet cleaner fuels specifications (CF2) in terms of international agreements signed by South Africa.

Dr Crompton said new vehicle engines were already being manufactured based in the new specifications and “the pressure was on”.

No pipeline from Cape Town

chevron CTHe said that Chevron had maintained in their appeal against the licence being granted to Burgan that they were situated in a province where production exceeded demand and Transnet had supplied no pipeline from Cape Town to the industrial heartland of South Africa.

This was in comparison to KzN, where the Transnet Durban/Gauteng pipeline ensured flow from Sapref (Shell and BP) processing some 24 000 tons crude per day and Enref (Engen) had a nameplate capacity of 135, 000 barrels per day, all of which was far in excess of the demands of their province.

Dr Crompton said that Chevron was asking for a dispensation which no other refiner enjoyed, whereas in fact in Durban the two refineries competed with each other.

Not impressed

Present  in the audience seating at the meeting were Nobuzwe Mbuyisa, Chairperson of Chevron and various other Chevron executives. They remained impassive throughout the NERSA presentation.

NERSA had noted, Dr Crompton said, that South Africa generally was in need of storage capacity and NERSA had only licensed in the Cape Town area three facilities for petrol and diesel and only one of these allocated any storage for third parties. A total national storage figure of 1.7% was only available in fact, he said, to third parties throughout the country.

Burgan says no supply security

NERSA said that on the question of loading facilities, Burgan had pointed out to NERSA that there waschevron tank no security of supply for the area, since Chevron owned the only facilities, although Chevron had argued, Dr Crompton said, that it had spare capacity. But this was not the case at all, he said.

Dr Crompton said NERSA had decided that in the light of the fact that a study had shown that South Africa’s refineries in general were ageing; that Chevron’s port infrastructure had constraints in the context of growth and there was limited access to third party storage, especially new BEE entrants and that that truck discharge rates were the key bottleneck and not as either party stated, that a licence for storage as well as discharge facilities should be granted to Burgan.

Why come to Parliament?

All MPs from both parties complained that whilst the dissertation had been interesting, as the decision had already been made by NERSA why they asked was the Committee’s time being wasted when the matter that was already a fact.  Dr Crompton replied that NERSA had been invited by Parliament to expand on the security of supply issue at the invitation of a Parliamentary Study Group on the subject.

gordon mackay DAGordon Mackay, Shadow Minister of Energy, said that security of supply was a matter for the Department of Energy not NERSA but he warned that Vito were large merchant traders and that the storage facilities were well off normal oil trading sea routes.

The oil game

The tanks, he warned, could very well be used by Burgan for dumping in a game of oil price manipulation, as Burgan were traders not refiners and product suppliers but time would tell.

Dr Crompton dismissed such a suggestion out of hand.

Other articles in this category or as background
South Africa still off the hook on Iranian oil
Fuel price controlled by seasonal US supply – ParlyReportSA
CEF hurt by Mossel Bay losses – ParlyReportSA

Posted in Energy, Facebook and Twitter, Finance, economic, Fuel,oil,renewables, LinkedIn, Security,police,defence, Trade & Industry0 Comments

Labour relations bill rejected

LRA amendment on strike violence rejected….

ian ollisThe Portfolio Committee on Labour has rejected a Private Member’s Bill, the Labour Relations Amendment Bill proposed by Shadow Minister of Labour, Ian Ollis, to make provision for trade unions to be accountable in the event of violence, destruction of property and intimidation by union members during a protected strike.

The background to the Bill noted that “statistics from the protest action in the metal and engineering sector showed that in the first two weeks of that strike, 246 cases of intimidation, 50 violent ‘incidents’ and 85 cases of vandalism were recorded.

Duty to take reasonable steps

“The Bill seeks to provide a statutory duty on trade unions to take reasonable steps to prevent harm to persons and property within the Act”, said Ian Ollis MP, when tabling the Bill noting that his Bill had been stalled since 2010.

COSATU spokesperson Patrick Craven at the time responded with the statement that “COSATU will campaign relentlessly, thorough the alliance, in Parliament, at the Constitutional court and in the streets, to ensure that such a law is defeated.”\

Cabinet says we have the tools

Meanwhile, when President Zuma addressed the House in his State of Nation Address he condemned violence associated with strikes but said, “We have enough instruments in our labour relations machinery to resolve labour disputes.”

When presenting the Bill to Parliament in the current session, Ian Ollis said that the Bill could specify penalties, but also it envisaged a situation where the Labour Court is given permission to order parties, if a strike turned violent, to arbitration.

The Department of Labour (DoL) distanced itself from the Bill, Director-General, Thobile Lamati sayingThobile Lamati that these issues that were being addressed at NEDLAC level.

As a result of the meeting, a further Labour Portfolio Committee meeting heard the advice of Parliamentary Legal Adviser, Ms Noluthando Mpikashe, who told the Committee that although the Bill has no constitutional defects, existing legislation catered for all its contents.   She cited the Gatherings Act (Section 11) as a satisfactory answer and that the proposed Bill was pre-empting the NEDLAC deliberations.

Back to Marikana

Ollis responded that the Bill simply proposed that unions be held accountable for the conduct of their members during strike action. This will ensure not only accountability, but safety of the non-striking workers and added that “had the Bill been in place, lives would have been saved at Marikana.”

He complained “The Gatherings Act does not regulate any behaviour outside an approved gathering. The Bill before the Committee speaks to actions resulting from unapproved gatherings. The Bill also calls for the granting of permission to the Labour Court to force arbitration once a strike had turned violent,” he said.

He also complained in previous meetings that that the Opposition did not have a voice in NEDLAC. It could not give any input. The duty of the Opposition was to propose new ideas with regard to legislation, and the only way to reach NEDLAC was through the Portfolio Committee.

Bill voted out

Chairperson Yengeni rejected totally the claim that Opposition parties could not address NEDLAC directly. She said there were channels available to engage any entity of government.  She thanked Shadow Minister Ollis for his Bill and all the work that had gone into it but said “When the NEDLAC process is complete, the Committee will be the wiser”. Using its majority, ANC MPs rejected the Bill in its totality, the IFP abstaining.

Chairperson Lumka Yengeni stated afterwards, “The Bill is rejected by the Committee as it is not raising anything new. All its contents are captured in the Regulation of Gatherings Act,” she said. “The Department of Labour is on top of the situation”, she added.

Shadow Minister Ollis said, “The violence will continue. Therefore the current platform is inadequate.”

Other articles in this category or as background
Parliament delays process on Labour Relations Bill – ParlyReportSA
Muscle may be added to LRA – ParlyReportSA

Posted in Facebook and Twitter, Labour, LinkedIn, Security,police,defence, Special Recent Posts, Trade & Industry0 Comments

Smart card ID upgrade for South Africa

Smart card ID trials with banks

Despite a highly upbeat presentation by the department of home affairs (DHA) on the position with regard to the issuance of a smart card ID card to all citizens of South Africa,  the actual final implementation of the full system using bank premises for issuance would still seem time away.

DHA said that in all, the new process involved the replacement of some 38m ID books involving a further 70 DHA offices or “booths” being created throughout the country which will also process new passports.

However, said DHA, to speed up the process; create greater access to the Smart Card issuance: reduce queues and, importantly, to reduce the whole timeline of eliminating the old bar-coded system, DHA was now working with the banking world with pilot propositions based on using the outreach of banks as well, in order to reach a greater proportion of the general public and speed up the process.

Payment and issuance at bank

So far, MOUs had been signed with FNB and Standard Bank to set up pilot “booths” at a number of trial bank locations in order to study the options and strategies to involve banks with the issuance of cards and possibly payment by swipe. Studies were also being conducted with the SA Post Office (SAPO).

DHA said the consideration of SAPO had arisen because of their “large footprint” in rural areas and, together with an evaluation with trials at the two banking pilots, the entire IT system developed by DHA for their own 407 outlets, would be tested, adapted and fine-tuned. National treasury would then be approached on the additional costs of including the four private sector banks and SAPO.

DHA’s own system in hand

The budget for DHA to handle the system alone and by itself was R120m.   Contracts to card makers had been finalised in terms of a highly satisfactory and approved tender process.

MOUs with Nedbank and ABSA were now also being initiated, as an extension of the arrangements with the first two banks mentioned, in order to then involve all four major banking groups in South Africa to widen the whole process, the department said.

The matters being investigated at present were the entire security risk of such an operation, this being paramount to DHA; the possibility of online payment for application of documents produced; fingerprint and photos on site (an essential if the documents were to be collected later from the same location); and return of revenue and reconciliation of cash with DHA.

First and second class

DHA told parliamentarians that citizens would therefore have a choice between the DHA option, for which an ID would probably cost in the region of R140 and a passport R800, or at banks where no doubt a premium would have to be charged worked out after the pilot scheme was found to be workable or not.

Under questioning, particularly led by ANC chairperson Buoang Mashile, DA’s Mohammed Hoosen and ANC’s Bonsile Nesi, extreme circumspection was expressed on the involvement of SAPO ; the quality of its staff to handle highly sensitive and personal information; and the fact that some SAPO outlets only had two staff members in small stations and rural outlets.  The recent SAPO strikes, where no mail was delivered for three months, added to their disquiet

DHA responded that they were highly conscious of this and a decision to involve SAPO was yet to be made from evidence collected.

DHA presence at banks

DA’s Hoosen also stated that “nothing ever came free from banks”. He expressed disbelief that the all four major banking institutions were seriously going to involve themselves in such monetary matters and reconciliations with DHA and integration of DHA staff on their premises for free.

DHA replied that what was being undertaken was a pilot which involved a “stand alone” DHA booth to handle information input, fingerprints and photos and that bank would accept monies and credit DHA as did some retail outlets with municipal matters. DHA staff would be involved.

Security of info

To some extent the DA were satisfied to hear the banks themselves did not deal with the personal details of applicants, leaving DHA as sole handler of the any information on their data capture system, as in the past. Nevertheless they asked for  a “ball park figure” as an  idea of what the private sector involvement would add to the cost of an ID and passport.

DHA responded that it might double the cost of a Smart Card ID and push passport costs well up to R1,500 but at this stage all was conjecture as the pilots with the two banks had only just started.  If it was decided to go ahead, then the whole process would have to be costed before it went to National treasury for approval as a possibility and the involvement with the banks would have to be a “self reducing” exercise but faster.

Quo vadis?

On questions on the need to communicate with the public, DHA said the whole issue was early stages and in any case the process was a five to seven year plan and communications would come up only when the entire system was wrapped up and ready to go.

On the ability of DHA to handle such a national campaign of this magnitude, a number of MPs queried whether the department, as it was presently constituted, was able to handle such a programme.  DHA said part of the plan involved the hiring of staff and a major focus was on an extensive training programme. DHA said they were used to handling such matters as elections and there were a number of common factors involved.

Fingerprints may overcome

The main areas of concern to DHA, the presenter said, was rather in the area of fingerprint verification where “swopping” between immoral staff and the public was concerned and outside scam organisers who deluded the public with false information but they felt that the photo verification system, when added, would eliminate most of the physical fraud possibilities in collection by the right person.

DHA said that in their experience, the areas of cutting, pasting and manual tasks were the areas that the risk analysis project had mainly to focus on. The risk analysis project was the vital undertaking that was being assessed at the moment,

When asked by members where the two pilots were being conducted, DHA said that this was being undertaken with Standard and FNB in Gauteng, who were helping with risk analysis.

Other articles in this category or as background
Home Affairs gives reasons for visa changes – ParlyReportSA
Home Affairs fails on most targets – ParlyReportSA
Private Security Industry Bill comes closer – ParlyReportSA

Posted in Facebook and Twitter, LinkedIn, Security,police,defence, Special Recent Posts, Trade & Industry0 Comments

Private Security Industry Bill comes closer

Motive for Private Security Bill unclear…..

adt securityAs of this date, the Private Security Industry Bill still remains for signature by President Zuma passing it into law, having had the contentious clause that South Africans must own at least 49% of shareholding of any security companies, as proscribed in the original Bill passed by Parliament, increased to 51%.

However, from statements made by senior officials in the department of police and the minister himself it seems quite possible that government will push the law through despite the stated objections of security  industry associations and the possibility of the industry taking government to court on the matter.

The Bill introduced two years by minister Nathi Mathethwa, then a protégé of president Zuma but now reduced to the post of minister of arts and culture, posed the reasons for a controlling number of 51% being the result of the possibility of national security breaches by foreigners in South Africans affairs. This has never been defined.

Ek is die Suid-Afrikaanse

Such a matter was stated by the local security industry as being absurd since most South African management, local shareholders and certainly the majority of employees were South Africans anyway. In can only be assumed that the government thinks their are “plants” by foreign countries working in the industry, or alternatively, the reasons given by the state are a cover for some other motive, as of yet not clear.

Immediately the Bill was tabled, opposition members in Parliament pointed out that such a law would place SA not only in violation of international trade agreements but place the country in jeopardy of renewal of AGOA by the United States, of valuable export trading advantage to South Africa.

Particularly, South Africa is in danger of violating GATT agreements, but the minister of police has responded with the names of other countries discounting international agreements on the issue of local ownership control.

In a rush to close Parliament for the May elections last year, the Private Security Industry Bill, with other Bills, was hammered through Parliament using every possible ANC vote but, however with the 51% clause reduced to 49%.  This has now been reversed.

Trade and Industry unconcerned

Unless the Bill is returned to Parliament unsigned, a course, which would seemingly make the new police minister Nkosinathi Nhleko unhappy, and with minister of trade and industry (DTI), Rob Davies, appearing ambivalent on the whole issue, all would seem set for a suicidal dive into unknown international trading waters as far as obligations are concerned.

This is despite a trade delegation visit to the US on the subject. Recent statements by US congressmen and a joint letter addressed by them to SA on other possible violations of GATT by the DTI, particularly on poultry import issues threatening AGOA, are all being played down by cabinet ministers.

 American Chamber of Commerce in SA have pointed to the difficulty, not only with B-BBEE but with this proposal, the difficulty US/SA companies operating in South Africa have with their head offices in parting with ownership of their companies.

The police minister says that he “finds that South Africa will meet its trade obligations under GATT and the action will not threaten AGOA” – an unusual statement for a minister of police, whilst DTI itself, or the minister of trade and industry, still seem have their heads well below the water line.

Under the skin

Eventually, it will emerge what it that is so worrying to the department of police about companies like ADT, Tyco, Securitas, Chubb and the many Japanese, Korean and British companies involved in the manufacture and supply of security equipment….. all at the risk of disinvestment or, worse, maybe an imagined xenophobic wish for these countries not to employ ex-pats or immigrants from other parts of Africa. 

Other articles in this category or as background

No moves on new Private Security Industry law – ParlyReportSA

Private Security Industry Bill gets through Parliament – ParlyReportSA

DA’s Crucial Infrastructure Bill tabled on security – ParlyReportSA

Posted in Earlier Stories, Facebook and Twitter, Finance, economic, Labour, LinkedIn, Security,police,defence, Trade & Industry0 Comments

Debate on Nkandla to intensify

Facts on Nkandla with MPs…..

effIn an internal parliamentary question paper, M Khawula, an MP of the IFP-KZN, asked for a reply in writing from the minister of police to his question, “Which structures, buildings and/or areas have been declared national key points and, secondly, what qualifies such to be declared national key points.”

He was not to know that minister of police, Nkosinathi Nhleko, would be forced out of blustering and show that president Zuma’s country homestead in the hills of KwaZulu-Natal, Nkandla, was indeed a national key point whereas, as illustrated by a newspaper in the parliamentary recess, nuclear experimental station, Pelindaba, north of Johannesburg, was not.

The reply in writing from the minister in the parliamentary replies of 19 September, in response to Nhleko’s question, was as follows, “To publish or to make known a list of all national key points would to a large extent defeat the purpose of the National Key Points Act 102 of 1980, namely the protection of such NKP’s. It is therefore not policy to provide such a list for public knowledge.”

When is a key point not one?

The minister added to the written note, “In terms of the National Key Points Act, section 2 deals with the declaration by the Minister of Police and I quote; “Declaration of any place or area as a National Key Point.

(1)  If it appears to the Minister at any time that any place or area is so important that its loss, damage, disruption or immobilization may prejudice the Republic, or whenever he considers it necessary or expedient for the safety of the Republic or in the public interest, he may declare that place or area a national key point.

(2)The owner of any place or area so declared a national key point shall forthwith be notified by written notice of such declaration.

That was the full extent of the reply from the minister.      Meanwhile in the recess, the opposition has written to the Speaker of the House, requesting that President Zuma be forced to respect the Constitution and answer questions from MPs in the National Assembly orally on a regular basis.

Weight of the law

settlement_law_justice_In the meanwhile during the recess, Judge Roland Sutherland in the Johannesburg high court  ordered the minister to hand over the list of national key points and national key point complexes in “the next thirty days” to the parties complaining, who were the Right2Know Campaign and the South African History Archive. Such was finally acceded to.

It is now understood from a statement made at the proceedings by the Mail and Guardian, who joined the action as a friend of the court and who were represented by advocate Matseleng Lekoane, that according to the Act, security guards are allowed to search and seize peoples’ belongings if the people were in a national key point. “They were also allowed to use guns to do this”, she said.

Adv. Lekoane argued that if this was the type of reaction that people, including journalists, might face, then they had the right to be prepared for it. “You need to know the status of a place so you can inform your conduct,” she argued.

Just so we know

The advocate representing Right2Know campaigners, Steven Budlender, had earlier complained that his client was only asking for the names of the places not the addresses.

In any case, he added, it would not make a difference to the country’s security if places like OR Tambo International Airport were publicly known as national key points.  This is because, Budlender said, the “dark forces” that the minister’s counsel feared would inflict harm on the country do not need to be told that a place is important. They would already know.

He was responding to argument made by counsel for the minister of police who said that revealing which buildings and places were NKPs would place national security at risk. “This does not stand up to logical scrutiny”, said Budlender.

Judge Sutherland said minister Nhleko’s refusal to release the list was unlawful and unconstitutional, and ordered the ministry to pay the legal costs.   The matter will no doubt be tabled for discussion in the next parliamentary session by which time it will be even clearer what the realtionship  between President Zuma and Parliament will be after his State of Nation Address.

Maybe appeal

However, debate at parliamentary committee working level will now be at a different level in the new session . The facts are there and what was fog in a bucket is now in the open for proper debate.

Other articles in this category or as background
http://parlyreportsa.co.za/cabinetpresidential/nkandla-debate-rekindled-da/
http://parlyreportsa.co.za/cabinetpresidential/nkandla-ndp-argument-rages-go/

Posted in cabinet, Cabinet,Presidential, earlier editorials, Facebook and Twitter, Justice, constitutional, LinkedIn, Public utilities, Security,police,defence0 Comments

This website is Archival

If you want your publications as they come from Parliament please contact ParlyReportSA directly. All information on this site is posted two weeks after client alert reports sent out.

Upcoming Articles

  1. MPRDA : Shale gas developers not satisfied
  2. Environmental Bill changes EIAs
  3. Border Mangement Bill grinds through Parliament

Earlier Editorials

Earlier Stories

  • Anti Corruption Unit overwhelmed

    Focus on top down elements of patronage  ….editorial….As Parliament went into short recess, the Anti-Corruption Unit, the combined team made up of SARS, Hawks, the National Prosecuting Authority and Justice Department, divulged […]

  • PIC comes under pressure to disclose

    Unlisted investments of PIC queried…. When asked for information on how the Public Investment Corporation (PIC) had invested its funds, Dr  Daniel Matjila, Chief Executive Officer, told parliamentarians that the most […]

  • International Arbitration Bill to replace BITs

    Arbitration Bill gets SA in line with UNCTRAL ….. The tabling of the International Arbitration Bill in Parliament will see ‘normalisation’ on a number of issues regarding arbitration between foreign companies […]

  • Parliament rattled by Sizani departure

    Closed ranks on Sizani resignation….. As South Africa struggles with the backlash of having had three finance ministers rotated in four days and news echoes around the parliamentary precinct that […]

  • Protected Disclosures Bill: employer to be involved

    New Protected Disclosures Bill ups protection…. sent to clients 21 January……The Portfolio Committee on Justice and Constitutional Affairs will shortly be debating the recently tabled Protected Disclosures Amendment Bill which proposes a duty […]