Archive | Security,police,defence

By-passing Parliament at one’s peril

….editorial,  30 May 2020

Regulations mania hits South Africa …..

Winston Churchill, perhaps the greatest political and parliamentary figure of the last century, said that if you make 10,000 regulations you destroy all respect for the law.  Take a look at South Africa where far too many conflicting and nonsensical regulations are espoused on a weekly basis, some of them with only a loose and highly doubtful connection to the law, the Disaster Management Act, under which they are gazetted.

What started with good intent in the rush to halt the spread of Covid 19, ‘flatten the curve’ and buy time to build medical supply lines and PPE reserves, has turned into a regularised pattern of government by dictate.  We are in danger of getting used to the idea of government finding a way around the people’s Parliament just because 400 people can’t gather together in the light of social distancing, in itself another regulation.

This shortcut to governance has to be stopped before it becomes regularised in any way.  In the process of searching for a way to speed up what at times can be a cumbersome system of democratic checks and balances, the country has invented an immensely powerful and what could well be an illegal intervention named, by somebody unknown, as the National Coronavirus Command Council.

Rules in bulk

After only a month of the president’s announcement of the declaration of the national state of disaster, more than 50 sets of Covid-19 related regulations, directives, notices and directions have been published nationwide in its name.    Lawyers and business chambers are struggling to keep up with it all.

The problem now being faced is two-fold.  Firstly, the high-sounding and most unfortunately militarised name of “Command Council” represents an entity not recognised in the Constitution, or anywhere in the statute book.   It is purely an invention of a clique within the governing party as an instrument to administer a law cobbled together in a few months called the Disaster Management Act.

Somehow, without the knowledge of Parliament, a handpicked number cabinet ministers, chosen one has to assume by persons residing at Luthuli House, has granted executive functions and powers to a pick of between 8 and 19 cabinet ministers (the number varies) who meet at undisclosed places and take national decisions.

The same unknown group has ignored some thirty to forty other cabinet ministers for reasons unstated to form this command unit and there we have it, a new grouping administering a whole country by regulation.  It is so important that we do not get used to this alien concept as a substitute for ordinary democracy, whether or not it has a body a scientific expertise advising it or not.

Power point

On the subject of powers, the Constitution is quite clear – all cabinet ministers are accountable “collectively and individually to Parliament”.   But to repeat, this caveat is made nonsense of when a cabinet cabal, including the Deputy President, start making government policy affecting citizens’ rights without even a parliamentary nod.

Granted, that originally there was a need for speed and given the fact that Covid 19 is a disaster of global proportions, it was understandable that hastily convened and rushed virtual parliamentary portfolio committee meetings tried vainly to “debate” the issues that might arise as a result of implementing the Disaster Management Bill.    In fact, they did remarkably well in the circumstances and South Africa became the first country to try and handle parliamentary debate electronically in the light of lockdown.

Law by laptop

Virtual meetings make any meaningful debate nearly impossible at the best of times. They are designed more for briefings than for discussion.  In the understandable rush, the buttons pressing the “ayes” became the norm in the short time allowed. The Disaster Management Act (DMA) is the result and is now history.

Now, the buttons are being pressed by Dr Nkosazana-Zuma, the Minister of Cooperative Governance and Traditional Affairs (COGTA), the department which the DMA empowered, most assuming that COGTA would be more of a spokesperson for the system to be adopted.

Governance by regs

However, “risk-adjusted strategy regulations” were published in a flash by COGTA in the light of the disaster (not emergency) powers with a statement that read, “The Cabinet minister responsible for cooperative governance and traditional affairs upon the recommendation of the cabinet member responsible for health and in consultation with cabinet, declare which of the following alert levels apply, and the extent to which they apply at a national, provincial, metropolitan or district level.” It all sounded like we had things in hand.

In the UK or Commonwealth countries, this process would have amounted to making Dr Nkosazana-Zuma prime minister and Dr Zweli Mkhize her deputy prime minister.  Nevertheless, Parliament in SA  soon fell outside of the inner circle when it came to oversight. Parliament deals with legislation not regulation.

What sticks to the wall

After a week or so,  it became more than noticeable that many of the regulations just did not link up and appeared randomly unconnected. The cooked chicken problem, no flip flops and absurd choices on who could and could not work.   Looking at it from a parliamentary aspect, to create temporary hospitals and to ban liquor and cigarette sales, and then cancel one factor but not the other, seemed not only a stretch under the same law but also a legal anachronism.

Worse, just the act of banning liquor sales and thus damaging the tourism and hospitality industry possibly forever is unlikely to pass any “justification analysis” constitutionally.    Most of the public comments called for in the form of  business submissions are now accumulating in government offices or parliamentary boxes and certainly unlikely ever be seen by Dr Nkosazana Zuma.   She is known for having no appetite for this sort of thing, as was discovered by the African Union.

LIFO

Now many of the regulations are causing serious “unintended consequences” in application, such as schooling, resulting in a law gone rogue.  A further well publicised example has been where regulations allow religious gatherings whereas most major religions did not call for them, nor will exercise them. Gatherings include funerals for the dead but not a healthy game of bowls for the elderly. Most have no idea of who consulted who on outcomes, representing more muddled thinking by a body which records no minutes and meets in secret.

South Africa has invented a most dangerous mechanism where everybody just relies on the Presidency to eventually “put things right” when the panic is over.  To do this, President Ramaphosa, in the light of a forthcoming ANC conference, will have to dissolve this mechanism somehow and terminate its powers. This politically powerful entity is led by a person who contested with him the position of president and who split the governing party in half doing this.

Its going to be a bumpy ride.

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Parliament goes virtual for lockdown


….20 May 2020…

SA first with virtual e-debate

….At the same time as the venerable British Parliament was tackling what seemed to them a totally invasive idea of a virtual e-Parliament, South Africa was simultaneously tackling the same subject as COVID 19 arrived at the shores of Africa.  Immediately, the issue of the consideration of lockdown conditions arose in SA and the question of how Parliament could work with everybody boarded.

Whilst British parliamentarians dithered on the subject and due to the fact that the UK kept social distancing going for a much longer time before their lockdown came into force, South Africa’s virtual website portal went up in an incredibly short time and was first in the world by a few days.

Maak ‘n plan

In comparison, the British virtual system. which is also now also working, only allows for debate in the House of Commons whilst South Africa, in terms of its Constitution, follows proceedings in both the National Assembly and the NCOP and also at committee level as well, with the current joint meetings providing provincial coverage.

The design of the entrance website is pretty similar to the UK portal, the principle being the same but with a British budget, the UK presentation is a good deal slicker.  All the same, the Daily Telegraph complained after the UK launch that all that the voice links in the meetings sounded like Darth Vadar and it was confusing to know who was speaking.

Many players

The beginner’s look of the SA virtual meetings is understandable in the situation.   One can see in SA technicians are having a daily struggle with people using Skype and Zoom connections for the first time, some of whom have little knowledge of the difference between an app and a hard drive.

Most are trying, knowing it all has to happen and it would be best to learn quickly but a certain number of senior politicians still demand studio facilities and a camera.   We shall no doubt look back in years to come and laugh at these early attempts to live a virtual reality life.

48 hours allowed

In South Africa, where the decision to suspend the SA Parliament was a “precautionary measure” in the light of a forthcoming Cabinet decision on how to deal with the pandemic, Parliament’s presiding officers in the form of chief whips and political parties all agreed beforehand on the 17 March that the remaining two days of parliamentary business would be devoted to urgent legislation only.

As a result of this decision, Budget Papers in the form of the Division of Revenue Bill were hustled to the National Assembly for adoption in order that money could flow to the provinces and local government.   A Cabinet meeting followed and the Speaker of the House, who acts for the President in Parliament, was summonsed for a meeting soon after.

Hard facts

The role of Parliament is indispensable for the country to run.   The Constitution demands that Parliament scrutinise and oversee all Executive actions, processes Bills in the  form of legislation, to provide a forum for public consideration of issues and to facilitate public involvement in its legislative and other processes. Such is inviolate, whatever the conditions facing the country.

Realizing that the only way was virtual meetings to consider matters,  Speaker Thandi Modise issued a statement that Parliament would have to “intensify its technological capabilities for a transition to an “e-Parliament”.   She concluded that as a result, a decision had been taken that “Parliament will be able to resume taking advantage of virtual media technology”.

 Into action

The leave period, or recess, for MPs was duly cancelled and parliamentary staff were assigned permits to stay at work.  They used this time for urgent meetings -to assess how Parliament could best resume its proper function under lockdown regulations and deal with the lacuna (i.e. a situation where there is no applicable law to deal with the matter).

It was agreed by the Speaker that priority had to be given in Parliament to virtual meetings that required oversight on COVID-19 matters, bearing in mind the limited number of meetings that could be held at any one time.  It was also agreed that any virtual meetings would be primarily joint meetings based on the government cluster system, i.e. meetings comprising the various representatives from a number of differing committees affected by one subject.

 Order, order

Chief whips were then tasked to adapt parliamentary rules to meet the new conditions. All this had to be based on the procedures, precedents, practices and conventions, which have been developed over the years, known as parliamentary rules.  This was in respect of not only how NA and NCOP virtual plenary meetings were to be run but how debate was to be conducted committee.

Speaker Thandi Modise then confirmed to all political parties that in the planned virtual meetings, members of parliament would have the same powers, privileges and immunity as they have ordinarily in parliamentary proceedings.  Quorum requirements were to be exactly the same she said, and MPs would be entitled to cast their votes either electronically or by voice.

Public participation and access to virtual proceedings had to be made possible, said Modise, “in a manner that is consistent with a participatory and representative democracy, virtual meetings to be live-streamed wherever possible”.

Global comparisons

Despite time limitations Parliament was indeed able to try and benchmark against some other legislatures who were operating as legislatures whilst their countries were fighting against COVID-19. To the surprise of all, little was found.

The prime constitutional constraint in South Africa’s case was that any virtual meetings had to involve both the sittings of the National Assembly and the National Council of Provinces and these had to be seen to be happening if the public wished to observe proceedings, a factor necessary according to the Bill of Rights.   This was overcome by making most meetings “joint” committee meetings of parallel committees from both Houses.

One and only

In the UK, which has no constitution, a parliamentary virtual meeting concept had been designed and planning was six months into happening.  From a standing start, SA Parliament achieved their deadline in about a fortnight.  Australia and New Zealand are still only thinking of going about it and the USA is still fighting about lockdown itself.

Without fanfare, the parliamentary process under the extraordinary conditions began internally in the Cape Town precinct after a very short training period on 20th April, with access being made to the existing  public parliamentary website on the link www.parliament.gov.za/parliament-tv.

 Time will tell

The whole thing seems to work quite well but obviously glitches occur regularly whilst MPs struggle from time to time to find the mute button and some appear if they have just got out of bed.  Already, however, after an initial learning curve, things are changing and before long it will be the way things happen.

At each meeting, provision is made for the parliamentary secretary to log in those MPs present at a virtual meeting, name them, see them, accept apologies and at point count voting if required from those logged in through the  electronic response system.   Minutes are established later through the audio track recorded in the same manner as before. This is quite some procedure to witness in some of the hallowed chambers where the Speaker once wore a wig.

An MP’s presence in any virtual meeting is established through a secure link sent to their email address which also enables counting to be established for the purposes of establishing a quorum, taking decisions on issues or voting on a matter. Links are established on Facebook, Linked-in, Twitter and Instagram, the photography on Facebook on parliamentary issues being quite stunning.

 7 out of 10

In general, the new parliamentary virtual world established is considered by most quite for such a rush and the process will no doubt tide the country through this terrible period in its history.  This aside from any opinion on how well MPs handle their own inputs and deal with difficult question of switching between one another to pose and answer questions.  What you see is what you get.  The result is not always pretty but it is legal.

One advantage is that with so much happening with lights flashing and buttons to worry about, there is little time for any MP to have a quiet slumber.

Posted in Agriculture, cabinet, Communications, Defence, Energy, Fuel,oil,renewables, Home Page Slider, Justice, constitutional, Police, Public utilities, public works, Security,police,defence, Trade & Industry, Transport0 Comments

Home Affairs white paper appears govt meddling

White Paper re-focuses on immigration, security… 

Report issued to clients April end 2019…..

Gathering a head of steam and running into trouble both at home and abroad, is (former) Minister Siyabonga Cwele’s Draft White Paper on Home Affairs, something that President Ramaphosa clearly attempted to avoid any discussion on before elections.   One senses that the Paper is yet another leftover  from the “nine wasted years”. 

Minister Cwele said his department is at present absorbing the submissions received from all stakeholders and citizens on his draft which was published on 30 January giving 30 days for comment.

Read more….White Paper Home Affairs

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Latest Cybercrime Bill free of state apparatchik

New Cybercrime Bill   

……Every business must have a battle plan

In the light of the fact that the Cybercrimes Bill, now passed by Parliament, places obligations on financial institutions and service providers to report incidents to SAPS, it would seem imperative that preparedness by business for a cybercrime incident must include a well-planned response plan.

Read more...New Cybercrime Bill

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

Gigaba pushes for control of border posts

Treasury, Home Affairs at odds on customs issues

Parliament will be debating in the new session in August the Border Management Authority Bill.   What the Bill proposes is a single state entity known as the Border Management Authority (BMA) to oversee all aspects of the movement in the import/export of goods and to control movement of all persons either leaving or entering the country.

The idea is that all border law enforcement functions along South Africa’s fragmented 5,000 kilometres of border will be the responsibility of the BMA.   Read More……    Border Management Bill July 2018 PDF

Posted in Agriculture, Finance, economic, Security, Security,police,defence, Trade & Industry, Transport0 Comments

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, Justice, constitutional, LinkedIn, Security,police,defence, Trade & Industry0 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, 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

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Red tape worries with FIC Bill – ParlyReportSA

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