MINISTRY FOR INTELLIGENCE SERVICES
OFFICE OF THE DEPUTY MINISTER FOR INTELLIGENCE

24 September 1998

MEMORANDUM: COMMENTS ON THE OPEN DEMOCRACY BILL

1. Find attached a memorandum on the comments of the Intelligence Services on the Open Democracy Bill.

2. The comments are for discussion and considerations by your committee before the Bill is debated in the National Assembly.

3. We will be available for any clarification or discussions on the matter if necessary.

4. The contact person is Ms Taki Netshitenzhe (083 630 7737) (012) 323 6738 or (021)401 1800

5. Your attention will be greatly appreciated.

MR DT NKOSI
GENERAL MANAGER
MINISTRY FOR INTELLIGENCE SERVICES

MEMORANDUM

TO: MR J DE LANGE
CHAIRPERSON: JUSTICE PORTFOLIO COMMITTEE

FROM: T NETSHITENZHE
MINISTRY FOR INTELLIGENCE SERVICES

SUBJECT: COMMENTS ON THE OPEN DEMOCRACY BILL

1. Section 36 of the Bill:
The meaning of the words "substantial " in subsection (1) is rather too confusing in its application unless it can be clarified as to what amounts to substantial from an intelligence I security point of view.

One of the legal mandates of the intelligence services is to identify threats or potential threats to the security of the Republic. One may ask as to whether a potential threat identified by the intelligence services may substantially harm the security or defense of the Republic. Failure to meet the "Substantial" requirement in our opinion then renders the intelligence relating to a potential threat fall out of the protection from disclosure.

Disclosure of certain information or intelligence has a potential of frustrating the investigations on threats or potential threats to the security of the Republic, but one could not necessarily be able to prove that it may substantially harm the security.

Intelligence services gather information which sometimes has the potential of harming the security of the Republic if not addressed or attended timeously to neutralize the threat.

Use of this word creates a lot of burden on the state (intelligence services) to prove that substantial harm is likely to be caused when what is in the possession of the services is still "information" and not yet "intelligence".

2. Section 36(1)(iii):
Addition of word "coercion" after "violence" in order to deal with passive resistance which may be a threat to the security and defence of the Republic.

3. Section 63 (3) of the Bill:
The Constitution makes provision for appointment of IG who will be responsible for the civilian monitoring of the intelligence services, who will have unlimited access to information held by the services. It is important to use this institution for whistle blowing in the intelligence services as the institution will have expert knowledge and unlimited access to intelligence.

The Inspector-General will be the "Public Protector" of the intelligence services.

4. Civil liability
Clarity is needed on information collected and at the disposal of the intelligence services which is not yet correlated, and which in future may be proved not to be true, but had already been disclosed to a third party.

What remedy is there for the intelligence services in event of damage caused to the third party.

We propose that there should be a clause in the Bill which will seek to address this issue.

5. Repeal of laws
Transitional arrangements should be provided for in the Bill to accommodate amendments that will have to be made to existing legislation which may be negatively affected by the Bill, especially in light of the abnormal Parliamentary and Legislative process of 1998/99.

We have the Protection of Information Act 1992 (Act 84 of 1992), which deals with the disclosure of information held by the state.

An example of one such vague clauses which may be overridden by the Bill is the definition of a security matter which is defined as "any matter which is dealt with by the Agency or the Service…"

This will also affect the clauses in which the "security matter" is used.

NOTE: The highlighted sections are the most crucial.