General Intelligence Laws Amendment Bill: SAPS & OIGI briefing

Meeting report

SAPS-CI briefing on General Intelligence Laws Amendment Bill (GILAB)

The Acting National Commissioner said that the mandate of the South African Police Service-Crime Intelligence (SAPS-CI) unit was to collect, analyse and disseminate information to anticipate, prevent and monitor crime in the country. The CI also provided technical support for crime investigation operations.

It also contributed to neutralising crime by gathering, collating, and analysing intelligence that leads to actionable policing activity. This gave effect to the constitutional mandate of the SAPS as set in Section 205(3). However, the effectiveness of intelligence depended on the coordination of all intelligence agencies which were required to work together and operate within a legal framework, where their respective roles were clearly defined. The coordination among the agencies strengthened government's efforts to promote a safe and secure environment for all.

It was against this background that the SAPS-CI took this opportunity to participate in the GILAB and believed that the proposals would strengthen the coordination of intelligence for the country.

Maj-Gen Marga van Rooyen, Legal Head, SAPS, presented the submissions of the SAPS-CI.

The South African Police Service (SAPS) welcomes and supports the General Intelligence Laws Amendment Bill.

The Service believes that the proposals in the Bill will strengthen the capabilities of National Intelligence Structures (SAPS:CI), enhance coordination between such structures and promote and enhance the skills, the gathering and analysis of intelligence in the interest of the country.

The Bill will also assist SAPS:CI in improving the Governance and Regulatory Framework as it has been identified as a witness by oversight bodies.

Clause 1: Definitions

The Bill proposes the insertion of a definition for “cybersecurity” in the National Strategic Intelligence Act, 1994.

• Unclear how the inclusion of this definition will impact or enhance the Cybersecurity Bill that is to be promoted by the Department of Justice and Constitutional Development

The syntax of the first two definitions below differs slightly. It is unclear whether this was done intentionally or for a particular purpose, or not:

• “domestic intelligence” means intelligence on any internal threat or opportunity or potential opportunity or threat or potential threat to national security;
• “foreign intelligence” means intelligence on any external threat or potential threat and opportunity or potential opportunity to national security;

Provision is made for a definition for “security competence test”.

It is proposed that the term “security competence assessments” included in clause 3(b) of the Bill, be substituted for the term “security competency test” to ensure consistency and prevent confusion.

National Strategic Intelligence Act, Act 39 of 1994

SAPS is in agreement with proposals relating to ―

• definitions on the National Intelligence Structure and Security Competence Test;
• the supply of national security intelligence to NICOC by Crime Intelligence;
• explicit inclusion of activities of communication centre of Crime Intelligence.;
• The amendment of section 2A, to include Crime Intelligence as one of National Intelligence Structures eligible to conduct vetting investigations and issuing of vetting certificates.

SAPS welcomes the proposed amendments to section 2A, which specifically provides for the compulsory vetting (instead of discretionary vetting) of certain persons, including persons employed by, or who is an applicant to an organ of state.

The proposed enhancement of security competence testing is also aligned with proposed amendments to the South African Police Service Act, 1995.

Intelligence Services Oversight Act, Act 40 of 1994

SAPS is in agreement with the amendments relating to ―

• the accountability of Crime Intelligence; and
• cooperation amongst the National Intelligence Structures on Counter Intelligence functions and activities.

Intelligence Services Act, Act 65 of 2002

SAPS is in support of the following proposals:

• insertion of the definition of “former member”; and
• amendments on the establishment of national academy on intelligence.

However, the inclusion of other intelligence structures in the command, control and the Advisory Council of the academy will ensure more involvement and relevancy of other intelligence structures

SAPS Amendment Bill

It is envisaged that the South African Police Service Amendment Bill will be introduced in Parliament in 2024.

The draft Bill inter alia aims to promote professionalism in the SAPS.

Provision is made for the insertion of a new chapter to address Police Service Intelligence in the furtherance of section 210 of the Constitution of the Republic of South Africa, 1996.

This chapter addresses matters such as the structure of the division, coordination with other intelligence services and matters relating to security vetting of employees.

[See the presentation for details]

Discussion

Ms D Kohler Barnard (DA) sought clarity on what SAPS-CI believed would be an appropriate definition of an applicant to an organ of the state. In the original version, Members had noticed the bizarre inclusion that the heads of non-governmental organisations (NGOs) and churches must be vetted. Although this had been removed as unconstitutional, she was concerned that it was being subtly brought back into the Bill.

Mr G Hendricks (Al Jama-ah) said he was interested to hear that it was important for all intelligence agencies to work together, which meant that they could not carry out their mandate if they did not. This also meant the SAPS-CI could not carry out its mandate and was hampered if it lacked collaboration. He had been seized with discussions with the President on the failure of the intelligence services to detect the 2021 July unrest, and one would have expected that the CI unit would have been at the forefront to prevent what transpired. The crime intelligence was the frontline and if the frontline was not working, then the country was not in safe hands.

With that said, he wanted to know if the Bill strengthened the SAPS-CI and if their colleagues, many of whom he had met during the budget reviews, had let them down. Further, it was known that in crime intelligence, there were still remnants of apartheid operatives working there. He had been invited for lunch at the American Embassy, and Mossad people were present and told him they provided the SAPS-CI with information about drugs on the Cape Flats. Thus, his concern was if they had any proposals or further proposals on the GILAB Bill to be effective. Why did it depend on other agencies? It must be able to stand on its own.

Lastly, it was the responsibility of the SAPS-CI to ensure personal safety in peoples' homes, in supermarkets, parks, and on the streets – the police depend on it. Thirty years into this democracy, they were not doing it. The apartheid government did it more effectively than they were doing now. Was it because they depended on all intelligence agencies, and on collaboration? That was a pipe dream!

The Chairperson felt that Mr Hendricks would have provided some insight on where he thought SAPS-CI needed to be strengthened.

Mr D Stubbe (DA) asked if the SAPS Amendment Bill which would include a new chapter on crime intelligence would include what comes up from the General Laws Amendment Bill on intelligence. Secondly, was that Bill ready to be presented to Parliament?

Ms Kohler Barnard said with the vetting referred to in the presentation and considering the backlogs, what would SAPS-CI undertake versus what the State Security Agency undertakes? There were backlogs in both areas and it could be a massive issue considering the delays in the vetting process, and how it caused huge delays even for the board of the SABC. She was worried that this might burden SAPS-CI’s ability to do its job.

Mr Stubbe referred to page six of the presentation, where SAPS-CI agreed with the proposals relating to the definition of the national intelligence structure and security competence test. He asked the team to elaborate on the competency test. He was not aware of this test, and did not recall it being covered in other legislation.

The Chairperson asked for the difference between the competency test and the security assessment.

Responses

Maj-Gen Van Rooyen confirmed that no definition was provided for an applicant in the Act. It was the SAPS-CI's submission that to avoid conducting additional vetting and assessment for every person who applied; the vetting should be restricted to the person recommended for appointment.

Ms Kohler Barnard sought clarity on whether this applied to applications for a job within the SAPS-CI environment, and they were not envisaging it to involve anyone applying for a government job.

Maj-Gen Van Rooyen and Mr Hendricks agreed that intelligence agencies must collaborate to enhance their effectiveness. Although each agency had a different mandate for gathering and analysing intelligence, they depended on each other to share valuable information. Sitting on intelligence that may be useful to other agencies diminished its value. Therefore, it was crucial that they worked together and shared intelligence to ensure that their work was not in isolation.

It had been proposed that a communication centre be established to improve coordination, and strengthening the role of the Inspector-General would also be beneficial in learning from past mistakes. A new chapter, Chapter Six C, would need to be added to the SAPS Bill to achieve this. However, several processes still needed to be completed and complied with before the Bill could be introduced in Parliament. It should be noted that this was a complex task, particularly the amendment of the SAPS Act. The Civilian Secretariat was responsible for drafting and advising the Minister on this matter, but it also involved operational issues that directly affected the South African Police Service. SAPS-CI was working closely with the Civilian Secretariat to ensure that all the necessary steps were taken.

The proposal was to add a new chapter that considers the developments related to security vetting, recommendations from the National Development Plan (NDP), the panel of experts on the July unrest, the Farlam Commission, and other findings. The SAPS Act was enacted in 1995 and was outdated compared to Section 220 of the Constitution and these other developments. All of these recommendations influenced the development of the Amendment Bill to enhance the capabilities of the SAPS. The plan was to introduce it in 2024 after completing more work and consultation. Everything would soon be ready for the Bill to be introduced in Parliament and proceed with the enhancement of the SAPS.

In the Bill, a definition was given regarding the security competence test and assessment. It outlines that the test involves conducting a vetting investigation to assess the security competence of a person or an institution. The purpose was to determine if they were suitable to access classified information or critical infrastructure of the state, or if they were vulnerable to blackmail, undue influence or manipulation, or security compromises. Additionally, it identified any person or institution that was of national security interest. The current process involved security vetting, but there was a plan to enhance the existing principles by replacing the term "security vetting" with "security competence test."

Mr Stubbe said that there was no use in inserting Chapter Six C and including a definition of a competency test, while the rest of the security services through the GILAB made provision for a security competence assessment. He felt this was just for sentiment and a matter of preference among the intelligence agencies.

Maj-Gen Van Rooyen replied that the GILAB was already in Parliament, and she agreed that any proposed amendments to the SAPS Amendment Act would have to be aligned with the GILAB. The SAPS-CI was unaware of the GILAB when it finalised the SAPS Amendment Bill. The references to security vetting that remained in the SAPS Act would align with the new terminology.

Mr Stubbe said that in the proposed Chapter Six C of the SAPS Amendment Bill, he would have expected that the crime intelligence part would also be presented to the Joint Standing Committee on Intelligence (JSCI). Members would like to have a look at it and provide some input. He had never seen the Bill, or heard of it.

Maj-Gen Van Rooyen replied that the SAPS Amendment was not in Parliament yet, but the plan was to introduce it in 2024.

Ms Kohler Barnard suggested that working with a draft was more practical than passing a Bill requiring amendment in six months. Correspondence should take place, and the SAPS-CI should be consulted during the insertion of Chapter Six C. A copy of the proposals for the full chapter should be provided as well.

Mr Stubbe said the JSCI was responsible for oversight, and if they did not know what was happening, how could it be collated with the oversight function in terms of the legislation? He believed that the JSCI should have insight into those proposals.

The Chairperson simplified it, and said that Members were advising the SAPS-CI to legally "smuggle" that chapter into the GILAB.  

Maj-Gen Van Rooyen jokingly noted the opportunity and the invitation to be involved in legal smuggling.

Mr Hendricks said the buck stopped with the National Commissioner and asked if the legislation specified that if any one of the agencies messed up, he could be held accountable. Different agencies were supposed to work together, but they knew they did not work together. He felt that he remained unchallenged in his view that these agencies did not work together. Where did the buck stop, and did the legislation provide for that?

The Chairperson said that there were structures where all the agencies met, such as the National Joint Operations and Intelligence Structure (NATJOINTS), where they met and exchanged information. Some agencies may have not used the shared information, but the structures existed for them to do so.

Maj Gen Dumisani Khumalo, Head: Crime Intelligence, said the National Police Commissioner remained responsible for financial and administrative functions. The divisional commissioner of the CI remained responsible for operational matters, but the National Commissioner remained the accounting officer of the SAPS, so the buck still stopped with him.

The Deputy National Commissioner said there was defence intelligence that did not involve the SAPS, including the National Commissioner and the State Security Agency (SSA). These crime intelligence agencies had their respective roles prescribed by the Constitution.

Mechanisms were also put in place to ensure the coordination of activities within the intelligence community. In the comments and inputs, SAPS-CI appreciated the legal structure in the Bill that referred to the National Intelligence Structure, including all the intelligence agencies. They were previously called the Intelligence Community, and there were a lot of activities where they were grouped in Bill. The Bill would strengthen the existing mechanisms – the NATJOINTS' intelligence coordination was co-chaired by the SAPS and SSA, as well as the operational structure of NATJOINTS. The Bill would strengthen the current mechanisms.

Mr Hendricks raised concern about the GILAB, and questioned who bore the ultimate responsibility for its success or failure - was it the SAPS-CI, or the Minister responsible for Intelligence? There had been reports of rivalry and a lack of collaboration between different agencies, making it difficult for them to work together effectively. For instance, the National Commissioner could not dictate to the agency responsible for Defence Intelligence, which raised questions about how these agencies could work together if they had different bosses. While discussing this issue with party leaders, the President had been unable to answer questions about who should take responsibility for the failure to share information among different agencies. Meanwhile, different agencies continued to blame each other for the failures in information sharing. He was concerned that this lack of collaboration and information sharing could hamper the ability of SAPS intelligence to do its job. He believed that someone must be held accountable for this.

The Chairperson said the Bill talked about intelligence structures, and was not specific to each agency and explained the different roles of each agency. Some of the issues may be operational and could be in the regulations. Hence, they had been invited to all come and provide input. The different agencies dealt with their respective mandates. This was also why they could not go to court because they were forced to share information.

Mr B Hadebe (ANC) added that there was the National Intelligence Coordinating Committee (NICOC) and NATJOINTS, and the former was responsible for coordinating the activities and actions of all South African intelligence. There was coordination under the NICOC, and the NATJOINTS also coordinated all security and law enforcement operations throughout the country.

The Chairperson noted that some of these issues may arise during deliberations, although expecting the officials to handle his questions may not suffice. He was the lawmaker, and the buck stopped with him. He could propose that these matters be addressed through the Bill, but felt that this may be barking up the wrong tree.

OIGI briefing on GILAB

Mr Imtiaz Fazel, Inspector-General of Intelligence, presented the Office of the Inspector-General of  Intelligence's (OIGI’s) submission. The presentation covered proposed amendments to the Intelligence Services Oversight Act 40 of 1994 (Oversight Act), the National Strategic Intelligence Act 39 of 1994, and the Intelligence Services Act 65 of 2002.

[See the presentation for details]

Discussion

Ms Kohler Barnard asked the Inspector-General to point her to the amendment that would place the OIGI on an equal status with other intelligence agencies, notwithstanding the need for a separate budget. The OIGI was recommended from the point of being seen as a lesser entity compared to the three agencies, and she felt that this had a lot to do with the lack of implementation of results.

She noticed that the OIGI had submitted to managing its budget, but was silent on whether it wanted a budget separate from the SSA.

The Chairperson added that the recommendations were not binding, and the OIGI certificates were usually discussed with the Minister. Where there were disagreements on the findings, there would be no consensus on the recommendations -- what happens when this occurs?

Mr Stubbe said that while some of the OIGI proposals would require Members to consider how they would fit into the GILAB, clauses 11, 12 and 13 aligned with what the NICOC envisioned. The JSCI was currently reviewing these proposals.

He also raised concerns about the overlap in the terms of the Deputy Inspector-General and the Inspector-General. He suggested that the OIGI propose a solution to address the issue, as every time there was a change in the Inspector-General, there was a gap of a few months before the next one was appointed. During this interim period, the Inspector-General's office was unable to produce any work or certificates.

He also asked for more information about the powers of arrest mentioned in clause two of the proposed Bill. He noted that even the SSA did not have such powers.

Mr Hendricks said there had been an absence of the OIGI for a period that was unacceptable to civil society. Civil society felt strongly about this because it was their constitutional right that there must be civilian oversight over the intelligence forces. In the last 30 years, they had overlooked many things, but there was a chance that going forward, they could have an apartheid regime back in power. Thus, they could not be soft on this Bill. There had been many changes to a Bill designed to undermine civilian oversight. With all its good provisions, the GILAB had been designed to undermine this oversight and the Constitution. The tendency to undermine civilian oversight, and the amendments proposed by the OIGI, needed to be assessed closely because he was the champion of the streets.

The people shall govern -- not intelligence forces that have been infiltrated by foreigners and foreign intelligence forces since the dawn of democracy. Although Members were not legal experts, they should not take these proposals lightly, or discard them. This was a Bill that must contain substantive changes, and they must protect their streets through this Bill. They could not relax as they had over the last 30 years, because there was a real chance that the streets would have a hostile government in place and all the gains of democracy would be lost, so they must not ignore the proposals of the OIGI. They needed to assess if there was any merit to the proposals of the OIGI, and they must be treated with seriousness.

The Chairperson said that at this point, the Committee was receiving comments from stakeholders and had yet to deliberate on their inputs. During the deliberations, Members could decide which proposals were substantive, necessary or unnecessary, or what had been omitted. During its deliberations, it would also communicate with the agencies and seek explanations where necessary. The Committee was yet to determine which inputs still had some weight or not.

Mr T Loate (COPE) wanted to understand how the OIGI understood the application of the word ‘may’ in its proposals, as it had come up again. Secondly, on binding recommendations, were there any suggestions or ideas around what the OIGI saw as powers it might need to enforce its recommendations?

The Chairperson noted that this was aligned with his concerns and the understanding of ‘binding,’ because the OIGI must still converse with the Minister. If the Minister disagreed with its ‘binding’ recommendations, what would happen to the binding recommendations where there was no consensus with the Minister?

Mr Hadebe raised some concerns regarding the binding recommendations proposed by the OIGI. He questioned if the aggrieved parties could challenge the recommendations, similar to the Public Protector's. Was there any recourse in mitigating the disagreement? Why had the High-Level Review Panel report opted not to make such a recommendation, leaving it for further deliberation and research? Were there any benchmarking studies with other countries where the OIGI had binding recommendations?

He was concerned about disputes where the parties were unwilling to accept the recommendations. He suggested implementing measures to ensure those who disagreed with a binding recommendation should pursue a less confrontational path instead of taking court action to set it aside. The OIGI had argued that it should be an offence to not implement its recommendations.

Mr G Magwanishe (ANC) asked if it was correct to say recommendations should be binding, and suggested that these should rather be remedial actions, because recommendations were still subjected to the person to whom one was making the recommendations. It was not a decision, so it could not be binding. Perhaps they should consider a different wording to achieve the desired outcome, but he doubted if recommendations were appropriate in that context.

Mr Hadebe suggested that the recommendations should be binding when accepted.

Ms Kohler Barnard said she would also like to see what was envisaged by the OIGI when recommendations were not being implemented. What was the next step? What happened afterwards?

Mr Stubbe said clarity must be provided, based on the parameters of the OIGI's work. Its limitations must be set out and where its responsibility lay had to be clarified. If it was the security cluster, what could be included and excluded?

Mr Hendricks sought clarity on what he had heard -- that employees were denied their constitutional right to strike -- and asked if there was a grievance procedure with management. He would imagine that an employee could move outside the agency to seek assistance at the end of the grievance procedure. Thus, if they reviewed the amendment, they should propose that if a grievance procedure with management failed to resolve an issue between management and employees, and they were not allowed to join a trade union where collective action could be taken, there should be provision for arbitration in two forms, including advisory arbitration and compulsory arbitration. Was there a grievance procedure in place before going outside management to resolve disputes?

The Chairperson indicated that he thought that was the proposal.

Responses

Mr Fazel responded on intelligence gathering and dissemination, saying it was recommended that the gathering was separate from dissemination. It was a different part of the intelligence cycle, hence the definition was inappropriate.

The issue of independence for the OIGI was being addressed in two parts. The first part involved making certain amendments to the existing Act. The second part involved adopting an appropriate institutional form. Research is currently being carried out to determine the best institutional reform for the OIGI. However, it could not be a Chapter Nine institution, nor a Schedule One, Two or Three institution. The institutional reform and the amendments must complement each other. Therefore, removing any clauses in the Act that required the Minister to appoint a staff member or approve the budget was important. In addition, any suggestion of the Director-General (DG) of the Department being the accounting officer must also be removed. This was because the DG of the SSA currently holds authority over the functioning of the OIGI, which impedes its autonomy. To address this, amendments have been proposed to allow the Inspector General (IG) to have control over all aspects of budget and human resources management, as prescribed by the Public Finance Management Act (PFMA) and other relevant statutes. These two functions would give the OIGI institutional autonomy. Finally, all provisions that limit and compel the IG to consult various parties before making simple decisions, such as appointing a junior staff member, needed to be removed.

Mr Stubbe commented that even if it was a Schedule Three institution, there must be oversight. There was the Minister and the JSCI. This could not be changed -- it must be adhered to.

Mr Fazel said that the Inspector General was required to account to the Committee for the functioning of the Office, and this remained untouched. The Parliament and Executive authority accountability arrangements would remain intact -- there was no proposal to change that.

Regarding the issue of binding recommendations, the issues raised were relevant, but this could lead to all sorts of disputes where recommendations were not accepted, and could lead to the creation of more problems. They were trying to resolve a challenge where recommendations were made and not implemented. In this fiscal year, 130 recommendations were made for the services and they were all accepted, because the audi alterum partem (audi) process was followed. The heads of service were given reports to comment on, and while they did not always agree with them, they sat and changed them where things were interpreted incorrectly. At other times, they were persuaded, but in most instances, there was agreement. Once the consultation process with the heads of service was concluded, the IG proceeded to the Ministers. The Ministers satisfy themselves and see this as a valuable intervention for their superintendents, that the services were being overseen and there were interventions in the form of recommendations to correct non-compliance or non-performance. Once it passed through the Minister, there was also consensus and the Minister transmits the report to the Committee. He did this because he agreed with the instrument as a set of recommendations to bring about change or reform.

There was a need to bring it together in this way to avoid conflict and to reword or reinvent our dispensation, where the recommendations pursuant to consultation and agreement should be seen as remedial action that becomes binding. They had to find a way around the words to prevent disputes and unreasonable recommendations of the IG that must be implemented, and avoid turning oversight into a vain exercise where agreed recommendations were not implemented. It was all in the wording that recommendations must be consulted, agreed upon, and turned into remedial actions. It was also possible that it could find itself in regulations, where this could be spelt out.

The OIGI follows the audi process for its recommendations -- they were not in a vacuum, and were agreed upon. There were some recommendations that OIGI would insist that they were implementing, and if there was non-compliance, it would be spelt out clearly, and it could be referred for further action if not implemented. The OIGI did use the currently available resources at its disposal and its powers to bring about implementation.

The most important power that was necessary was the power of access to information, because without access to information, oversight was compromised. There was full access to information and in terms of the law, nothing could be withheld from the IG on any grounds. The services were compelled to provide access to information, including the staff of the OIGI, through the delegation of authority. The most important feature of its dispensation was access to information. Since he was appointed, there have not been any issues with access to information.

Mr Mpho Nchabeleng, General Manager: OIGI, said that the starting point was Section 23 of the Constitution, read with Section 36, which provides for the regime of fair labour practices within all workplaces in South Africa. All workplaces in South Africa were enjoined to act per the provisions of the Constitution. Collective bargaining was a must for all workplaces, but intelligence services were excluded from the general labour relations legislation. This did not mean they could not abide by Section 23 of the Constitution. They must regulate this within their environment. The intelligence services were supposed to regulate themselves, but the strike that was regulated in Section 23 was prohibited in terms of the Intelligence Act, which was fair, given the environment they operate in. The Intelligence Services Act plainly states that a strike is prohibited, but it does not cover what the employer could do -- it focuses only on the severity of the strike from the employee’s point of view. Currently, the suspension is well-regulated in the intelligence services' environment and applied in cases of misconduct-related investigations. The suspension process was addressed in terms of the disciplinary process, and was not the same as a lockout by the employer. Dealing with the issue of a lockout by an employer, one needed to balance the scales because a lockout was also a form of a strike, but from the employer’s perspective.

An independent mechanism must be created at the ministerial level to deal with genuine cases. If a grievance could not be resolved internally, public servants and private sector employees had the Commission for Conciliation, Mediation and Arbitration (CCMA), but that was not available for the SSA. This was also a recommendation of the OIGI.

Adv Jayashree Govender, Legal Head, OIGI, said the question of ‘apprehend’ was a new insertion in the GILAB which had never existed before in these strategic acts. She cautioned that 'apprehend' normally denoted arrest, and now the SSA would be given the powers to apprehend and hand over to the law enforcement agencies. The minute one used the word ‘arrest’, Section 35 of the Constitution kicked in, where persons arrested had powers to remain silent, and all the powers listed in Section 35 also apply. Hence, the concern was that when one used the word ‘apprehend’, it considered that the right to a fair trial begins at the time of the arrest, and would have an impact on a fair trial. What would be the position of the SSA? If there was a solid arrest and they were handed over, it would taint the whole process and the fair trial rights of the accused persons.

This was the legitimate concern of the OIGI, particularly regarding the amendment in the GILAB about apprehending a suspect contravening the strategic Act, but there had always been a huge lacuna in the strategic Act, where there were no penalties or offences clauses. Thus, there was no contravention of the Act as it stands, because there was no offences clause. Now, when one refers to a contravention of this Act, what was the contravention? This was the added layer, and they did not understand what was meant by ‘apprehend’, but the major concern was to reference Section 35 rights when it came to ‘apprehend’. It needed to be relooked, or at least obtain some clarity on the intention behind ‘apprehend’.

The SSA ddid not have the powers and functions to arrest people -- who resided within the SAPS. It went directly to the segregation of functions and duties, and it needed to be relooked.

The issue of the Deputy IG had been raised as far back as 2016, and input had been given. When the GILAB was posted on the SSA website in 2022, input had been provided by the OIGI, and discussions were held about the concept of the Deputy IG, and they had been advised that it would not be looked at. Input on the Deputy IG was available as far back as 2016.

Regarding the binding nature of the recommendations, in its motivation, the OIGI had indicated that where it said 'binding' there should be a complementary clause to say that if it was not implemented, it could be made an offence in terms of section 7A. Therefore, the suggestion was that if it was accepted, but not implemented, it could be made an offence – for example, failure to provide information to the OIGI. There was a way of amending section 7A of the Act to cater for that.

The purpose in choosing the use of ‘may’ stemmed from a discretionary perspective. The purpose was not ‘must’ and ‘may,’ because that power should reside with the IG to exercise his discretion when there was a need to reorganise the post-establishment of the IG. Clause 11 of the GILAB provides that the Minister may determine the organisational structure and grading of posts in terms of the Services Act. The drafters of the GILAB failed to understand that members of the OIGI were not appointed in terms of the Services Act, but in terms of the Oversight Act, and the only thing that linked them to the agency, apart from the appropriation of a budget, was the fact that section 7(12) of the Act bound them to the conditions of service, as applicable to the agency.

Disciplinary matters were a can of worms -- and where did they fit in? In some instances, they were considered outsiders as members of the OIGI, and in other instances, they were considered members of the SSA, which they were not. There should never be any confusion about this. Hence, it was important in terms of clause 12 to go across the board and touch on all issues regarding discipline and human resources-related matters for members of the OIGI. They should not be subjected to any decisions made by the Director General of SSA, which they currently were. Thus, an amendment of clause 11, as recommended, would clear the situation to a certain extent, until such time as they were scheduled.

In addition, the ideal desire was a complete overhaul of the OIGI, like with the Independent Complaints Directorate (ICD) and the Independent Police Investigative Directorate (IPID). They had a bill that dealt primarily with the Oversight Act that would cure all their problems regarding entrenching themselves as an independent body overseeing the services.

As 'prescribed' was deliberately included in section 12 to ensure that apart from other legislation, like the PFMA and others, they could use section eight of the Oversight Act to regulate how the IG would deal with grievances and disciplinary action matters. While section eight did provide for the regulations to be made for the conditions of employment for the members of the OIGI, it had not been done. The issue about the two years was commendable, but confining it to functions designated did not make sense. Another lacuna not yet mentioned was that section eight(1) of the Oversight Act states that any matter that was required or permitted to be prescribed in terms of this Act was discretionary, but it had been excluded in the two years. Hence, limiting eight (B) to just functions designated did not make sense.

Lastly, the current regime of the delegations did not make sense because section 20 of the Services Act states that the Minister may delegate certain powers to the DG, and the Ministerial Delegation of Powers and Direction of Payments (MPD) dealt with certain powers, but the GILAB had now included that powers may be delegated to the DG and the head of the agency or centre. However, when it came to appointments of lower levels, the current MPD talked about powers being delegated to the head of the spending centre. As it stands, the IG was the head of the spending centre, even though they did not want to be a spending centre. This would require a complete overhaul of the MPD.  

Mr Fazel commented on the scope of oversight that the Oversight Act provides for the oversight of the intelligence services and said all matters within the intelligence service are subject to oversight. The defence attache programme was a sub-division of defence intelligence, and among the five sub-divisions within defence intelligence, the foreign programme was one of them and was legally subjected to oversight. It also had an intelligence gathering programme, and for all reasons, they should be subject to oversight -- it was a no-brainer -- and he did not understand why there was a dispute. There was a concern when the defence attache programme was moved to the defence force under the direct command of the Chief of the South African National Defence Force (SANDF), which created another dimension. It could happen for intrusive measures, which was something that needed further discussion at the Committee level -- that one could place certain intelligence functions outside of oversight by placing them in another part of the organisation.

Lastly, regarding the nature of the inputs, they did not have an opportunity to make inputs into this process. As a consequence, there was a workshop with the Committee, and all this information was shared. They had also written to the Minister, and he acknowledged that the OIGI should make its input directly to the Committee and to these hearings. This was the first opportunity to make an official input, and these amendments had been discussed in great detail with the Committee in June.

Further discussion

Mr Hadebe noted that the IG had not addressed the process to review the binding nature of the recommendations, and if any benchmarking studies had been done to ascertain if it was a standard practice to have binding recommendations.

Mr Hendricks said that one of the things they wanted the IG to monitor was the apartheid operatives, and asked if the IG was pleased that this had been dealt with or if it was covered in other legislation. He also wanted to know what the IG’s stance was on torture.

The Chairperson noted that he thought the Committee had received an explanation from the SANDF on the matter related to the defence attache, and it was understood that the Chief of the Army had the prerogative to pick up on any member in any unit and place them somewhere abroad, not necessarily in an intelligence capacity. It was well understood that if the person in question was not in the intelligence environment or not within the IG’s office, to pick on that individual.

Mr Stubbe said the test was that the defence attaches were not collecting intelligence. They might gather information, but that was not intelligence. Intelligence was spying, and getting information was a different thing.

Responses

Mr Fazel replied on the review process, and said there was a need to avoid the recommendations being taken on review, and to introduce further steps and fail-safes in the system. One of those should include the recommendations of the IG being subjected to a consultation process, and once they were agreed upon, they became remedial actions. They needed to follow this route to prevent recommendations from being taken on review. At the crux of what he was talking about was the need to have a proper dual consultation with the Minister and the heads of service. Only when the recommendation had been agreed upon could it be classified as binding.

Secondly, on 12 October, they engaged in a roundtable with foreign inspector-generals (IGs) of very mature democracies and found that they used executive directives to turn IG recommendations into binding actions.

Thirdly, on torture, Section 210 required that the powers and functions must be regulated, and they were regulated at various levels. The legislation existed, but there was a missing layer -- there needed to be more executive directives managing and regulating key intelligence functions. At the lower level, there were operating directives and operating procedures, and the former was important to determine how the intelligence cycle was given expression. This was where the intelligence-gathering methods were expressed, and the methods prescribed must be compatible with the human rights in the Constitution. The principles of proportionality were important, and the least intrusive method must be used to gather information before a more intrusive method was used as a last resort. Torture was not compatible with the Constitution, or the method of gathering intelligence. They had never been confronted with a method that was in breach of the Constitution. Torture was not allowed in their dispensation, and they had not been confronted with that concern.

Mr Hadebe said it appeared as if the IG was suggesting that consultations would ultimately lead to all the recommendations being accepted, and the Committee knew that was not the case. Even after consultations, there might be instances where there were differences. If they inserted the part that it became an offence not to implement, and there were clear dispute instances where parties could not agree, but the IG went ahead with its recommendations, what would happen in that instance, because consultation did not automatically lead to consensus?

Mr Fazel said the practice of sharing information with the intelligence services and finding solutions was very critical to their work. Finding solutions meant understanding different perspectives. The OIGI had made 130 recommendations that were transmitted to the Minister, and only about two or three recommendations had not been agreed upon. This demonstrated the ability to find each other as respective parties on issues confronting them. The optimal approach was not to make the recommendations binding, but to consult on the recommendations and where they were agreed upon, they should be binding remedial actions.

The Chairperson asked Ms Kohler Barnard to extend a vote thanks to the OIGI delegation.

Ms Kohler-Barnard thanked the IG, and welcomed the extraordinary input from Adv Govender. She wished Mr Nchabeleng a farewell for his retirement.

Committee minutes

The Members considered and adopted draft Committee minutes, without any amendments being made.

The meeting was adjourned.