SUBMISSION OF COSATU ON THE DRAFT NATIONAL KEY POINT AND STRATEGIC INSTALLATIONS BILL [NOTICE 432 OF 2007],

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1 SUBMISSION OF COSATU ON THE DRAFT NATIONAL KEY POINT AND STRATEGIC INSTALLATIONS BILL [NOTICE 432 OF 2007], Submitted to the Department of Safety and Security 7 June

2 1 Introduction The need for a comrehensive review of the existing situation Labour Law Implications... Error! Bookmark not defined. 3.1 Essential Services...Error! Bookmark not defined. 3.2 Powers of Minister...Error! Bookmark not defined. 3.3 Powers of Owner...Error! Bookmark not defined. 3.4 Offences...Error! Bookmark not defined. 4 Other Aspects Effect on Current Legislation...Error! Bookmark not defined. 4.2 Definitions...Error! Bookmark not defined. 4.3 Designation of National Key Points...Error! Bookmark not defined. 5 Conclusion Introduction Basically this Bill is designed to protect places and premises and areas deemed to be of strategic interest against sabotage or other forms of attack. COSATU acknowledges the responsibility and obligation on the part of the South African government to designate and consequently protect national key points within the Republic which are genuinely of national strategic importance. The citizens of South Africa have a right to safety, and rightly expect of their government and state to take the necessary measures to ensure optimum security at these areas which genuinely require such intervention. However, this obligation is subject to limitations, to avoid being carried out at the expense of other rights that the citizens are equally entitled to in terms of our Constitution and common law. There is a need to ensure this is addressed by employing appropriate mechanisms which guard against unintentional encroachment of persons or activities which are the subject of other mechanisms or legislation; or prevent abuse of this legislation to achieve other objectives. The thrust of the Bill is to provide for the declaration of National Key Points (NKP), including Strategic Installations (SI) and Places of Importance (POI) in order to ensure for effective control and optimum security at these points (see clause 2). In contradiction to its current Act, the Bill includes two new areas of declaration i.e. a Strategic Installation and a Place of Importance. According to chapter 3 the Minister has the power to declare National Key Points, Strategic Installations and Places of Importance upon meeting certain criteria and following the evaluation of an advisory committee. In order to exercise the powers granted to him or her under the Act, the Minister may order a person to furnish information 2

3 relating to any place or area or take over the duties of owners of National Key Points, Strategic Installations and Places of Importance. Chapter 4 of the Bill addresses various aspects of the advisory and planning committees including their composition, functioning and proceedings. Once an area has been declared an NKP, POI or SI, chapter 5 of the Bill obligates the owner to take steps as outlined by the Minister in respect of security. It is worth noting that under clause 6, an owner may take additional steps, other than those prescribed under the Bill, which he or she may consider necessary for the efficient security of such places or any goods thereon. The remaining parts of the Bill relate to the making of regulations (chapter 6), offences (chapter 7), transitory provisions (Chapter 8) and the repeal of previous legislation (chapter 9). Any act prohibited in terms of the Bill such as hindering an owner taking steps required, disclosure of information relating to such places without authority of the Minister, or disrupting such designation etc is an offence For the purpose of this submission our comments are directed at key provisions and should not be treated as a comprehensive assessment of the Bill. While the concerns raised are not exhaustive they serve to illustrate potential problems that arise around the Bill. We propose the need for a fundamental redraft, and would want to make detailed comments on a second draft. 2. The Need for a Comprehensive Review of the Existing Situation It should be noted that in South Africa, until 1994 several instruments of the legislative framework relating to internal security were used by the state during Apartheid to oppress the majority of the population. COSATU believes that there is a need for on-going transformation of our statutory laws inherited from the Apartheid past, in line with our human rights-based Constitution. For this reason we believe that there should be a comprehensive review of the existing legislative framework, including inherited apartheid legislation. Such a review would first assess the extent to which internal security legislation has been reformed to ensure compliance with our Constitution. This should then in turn be used as a basis for assessing the extent to which reform may be needed, including whether there is a need to scrap or amend existing legislation or enact new legislation. We believe that such a process should have preceded the Bill and still needs to take place. 3. Labour Law Implications 3.1 Essential Services In terms of clause 4(1) (b) & (d) the Minister may, whenever it appears that a place or area is so important that its loss, damage, disruption or immobilisation may compromise the general administration or provision of essential services, or whenever he considers the safety and security of the place to have an impact on the delivery of essential services, declare that place or area a national key point. The definition of essential services used in the Bill is that as defined in the Labour Relations Act (LRA), 1995 (Act No. 66 of 1995). Given that the objective of the Bill is to enhance security at NKP, SI or POI, we are of the view that this requires specific and tight definition that aims to distinguish reasonable and justifiable limitations (as provided for under section 36 of the Constitution) of those rights contained in the Bill of Rights. The substance of the Bill is separate from that addressed by the LRA and in our perspective the LRA definition cannot be poached for inclusion in the Bill. In addition, the definition of essential services in 3

4 the LRA has been criticised as being too broad since it unnecessarily includes workers such as those working in Parliament and gardeners working in hospitals. Thus far government has resisted entering into minimum service agreements that would allow for the provision of specified minimum services during a strike in the public sector. The designation of essential services remains contentious within the labour sector. Inclusion here of essential services in the Bill not only erroneously ties up two separate concerns security and labour regulation, but also has the effect of pre-empting ongoing negotiations in relevant collective bargaining councils. 3.2 Powers of the Minister Clauses 5, 6 and 7 provide the Minister with a range of powers in respect of any areas so designated including the power of the Minister to take any steps which in his or her opinion may be necessary in respect of the security of these areas or in relation to the obligations of the owner s of these areas in relation to contracts with third parties (see clause 7). This means that the Minister can take a wide range of possible actions based on his or her subjective opinion that such steps are in necessary in respect of the security of NKP, POI or SI. Such a wide scope power should have some form of objective oversight to curtail its abuse and further, to allow for some form of accountability by the executive in its exercise of this power. 3.3 Powers of the Owner Clause 22(6) gives the owner of any place declared a National Key Point, Strategic Installation or Place of Importance the right to take in addition to any steps required in terms of this Act, such measures as he or she may consider necessary for the efficient security of that National Key Point, Strategic Installation or Place of Importance and any goods. On the basis of similar observations to those outlined above, clause 22(6) raises serious concerns in relation to the entrenchment in legislation of the right to a private individual to take any steps which in his or her subjective opinion are necessary in respect of the security of NKP, POI or SI. While the exercise of such powers by the Minister may be acceptable with the requisite oversight and accountability structures in place, it is difficult to see how this clause as it relates to a private individual can be acceptable in any respect. 3.4 Offences Under clause 24(2)(a) & (d) it is an offence to perform any act which hinders the owner in taking steps required in relation to efficient security or disrupts a National Key Point or part thereof. Many of the national key points in South Africa today are also plants or companies that may be at the centre of industrial action and general protests actions such as in 2004 when members of the South Africa Transport and Allied Workers Union went on strike at the Johannesburg and Cape Town airports over a wage dispute. Section 23(1)(c) of the Constitution protects the right of every worker to strike. As with labour rights, the rights to assemble, to demonstrate, to picket and to present petition is protected under section 17 of the Constitution. The only express limitation being that this must be done peacefully and unarmed. The offences created under clause 24 of the Bill suggest that the exercise of 4

5 labour related constitutional rights stand to be construed as an offence where such actions are interpreted as: - act that hinders, obstructs an owner taking steps in relation to efficient security. - conduct or action that damages, disrupts or threatens a National Key Point.. These formulations are very vague and far reaching and as such are unacceptable. The imposition of limitations on the right to strike and other labour rights as well as the imposition of a criminal sanction in respect of such rights necessarily raises the question of constitutionality of such a limitation. While section 36 of the Constitution provides for specific circumstances for such limitation, we are of the view that in developing our legislation we need to bring our law in line with positive international trends that seek to reflect the growing importance of protecting the rights enshrined in the Bill of Rights. 4. Other Aspects 4.1 Effect on Current legislation i.e. National Key Points Act, 1980 (Act No. 102 of 1980) Under the General Notice (Notice 432 of 2007) it is indicated that the purpose of the Bill is in line with the Minister for Safety and Securities intention to review and amend the National Key Points Act, 1980 (Act No. 102 of 1980). In contrast, Schedule A of the Bill purports to repeal the National Key Points Act, The apparent anomaly needs to be clarified Definitions The Bill includes a number of additional terms within the definition clause as well as terms used in the earlier legislation. Of concern is the definition of incident which employs some words used in the earlier National Key Points Act 1980 to include any occurrence, terrorism or any other criminal activity which endangers, compromise, disrupts or threatens a National Key Point, Strategic Installations or Place of Importance. In our view the wording such as any occurrence is vague (and wide) and fails to place adequate limitations on the discretion that will be exercised by officials tasked with its implementation. One could very well foresee how the inclusion of any occurrence within the definition of incident could be interpreted as including picketing workers or other forms of general protest which are perfectly lawful. In addition, while an incident is defined by reference to terrorism, what comprises terrorism has not defined within the Bill. The absence of a definition in this respect makes it possible to include activities, which though unrelated to security concerns of national key points, may be construed as an incident. There is some potential that this can be used to suppress political dissent for example in legitimate protest actions involving industries tied to national key points. Further, terrorism remains largely undefined within the context of various international conventions which seek to address the phenomenon. In our submissions on the Anti-Terrorism Bill we pointed at the lack of consensus internationally in defining terrorism and the need for a specific definitions that would limit expanding the scope of that Bill to include activities that should not be construed as terrorism. These views underlie our general concern regarding the need for clarity on such definitions to 5

6 ensure legitimate protests are distinguished and not classified as incidents that endanger National Key Points, Strategic Installations or Places of Importance. 4.3 Designation of areas as National Key Points (NKP), Places of Importance (POI) and Strategic Installations (SI). Cosatu notes that, in addition to the powers of the Minister under the 1980 Act to declare National Key Points, the Bill allows the Minister to further declare certain areas to be a Place of Importance or a Strategic Installation. A reading of the Bill reveals that the main differences in respect of the three i.e. National Key Point, POI and SI relate to the ownership (public or private), the period of declaration (permanent or temporary) and the degree of consultation required prior to declaration (e.g. with the Government Security Regulator, with SAPS and the Advisory Committee). Noting that POI and SI were absent in the previous legislation, it appears that Bill brings additional areas within the ambit of the powers of the Minister s control without making it clear what additional reasons necessitate this. As mentioned above clause 4 empowers the Minister, upon certain criteria, to designate certain areas to be national key points, strategic installations or places of importance. Clause 23 also provides that the Minister may make regulations in relation to these areas. Some of the criteria used (e.g. clause 4(1)(c) where loss may disadvantage the Republic nationally or internationally or safety and security is of paramount importance ) are far too vague and wide and fails to place adequate limitations on the discretion that will be exercised by the Minister tasked with its implementation. In view of similar concerns, we believe that it would be important to make the regulations under the Bill subject to public comment and parliamentary scrutiny. As it stands the Minister may promulgate regulations on matters that are the subject of unions in the security industry without consultation e.g. the grounds for appointment, continued employment and disqualification of security officer [see Section 23(1)(i)]. 5. Conclusion We have noted a number of substantive concerns regarding the provisions of the Bill. In our view these are fundamental aspects that require redrafting of the Bill as a whole. The criteria used by the Minister in declaring a National Key Point, Place of Importance or Strategic Installation, require re-examination. Terms such as what comprises safety and security of paramount importance or what is of disadvantage to the Republic nationally or internationally need to be clarified. In addition as mentioned earlier the importation of the definition of essential services in the Labour Relations Act does not take into account that the subject matter of the Bill is separate from that addressed by the LRA and in our perspective the LRA definition cannot be poached for inclusion in the Bill. As noted earlier the powers of the Minister or private owner in respect of the range of actions he or she can take in respect of improving security of such places are subjective and absent of objective oversight, accountability and control. The existence of such wide subjective powers coupled with the vague and wide definition within the Bill (e.g. incident, terrorism ) warrant careful 6

7 re-consideration of the Bill as a whole. The matters we have alluded are not merely technical but underlie the architecture of the Bill and demand a redrafting of the Bill to ensure that, during its implementation, its scope is not widened to include activities not intended. We wish to reiterate that our concerns have dwelt on key provisions of the Bill and that there are a number of other concerns that are evident on the surface of the Bill which may require further examination. For example the restrictions imposed on the right to information (clause 24(1)(c)) may raise concerns particularly in light of the fact that certain national key points may also be embroiled with organizations and communities over environmental and health hazards. It is also worth pointing out that the penalties both in terms of the fines and period of imprisonment, have been considerably increased in the present Bill when compared to the legislation it seeks to amend/repeal. The Bill proposes fines of R 1,000, or twenty years imprisonment [see section 6(2)(b)] in contrast to the R 10, and three years contained in the 1980 Legislation. The reasoning behind such a steep increase in terms of government policy on matters of national key points needs to be substantiated. In this regard, our comments should not be treated as exhaustive and we reserve our right to make further comments when the second draft of a substantially reworked Bill is published. We also propose that the South Africa Human Rights Commission be requested to scrutinize the Bill to ensure compliance with the Bill of Rights, and to promote an approach which is consistent with human rights. 7

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