Note to Ad Hoc Committee on Intelligence

17 September 2003

Note to Ad Hoc Committee on Intelligence

We were asked by the Chairperson of the Committee to explain the reason for the inclusion of the Schedules to the General Intelligence Laws Amendment Bill [B 47-2003].

1. Both the Intelligence Services Act, 2002 (Act No. 65 of 2002), and the Electronic Communications Security (Pty) Ltd Act, 2002 (Act No. 68 of 2002), contain Schedules which effected consequential amendments to the following provisions:

1) Sections 2(a) and 5 of the Security Services Special Accounts Act, 1969;

2) section 1 (definition of "security matter") of the Protection of Information Act, 1982;

3) section 2 of the Labour Relations Act, 1995;

4) sections 1 (definition of "public service") and 3(1)(a) of the Basic Conditions of Employment Act, 1997; and

5) sections 1 (definition of "public service") and 4(3) of the Employment Equity Act, 1998.

2. Neither the Intelligence Services Act, 2002, nor the Electronic Communications Security (Pty) Ltd Act, 2002, took into consideration the fact that the other Act was amending the same provisions. For example, the Intelligence Services Act, 2002, amended section 1 of the Employment Equity Act, 1998, by the insertion in the definition of "public service" of the following paragraph: "(d) the South African National Academy of Intelligence;". The Electronic Communications Security (Pty) Ltd Act, 2002, also amended section 1 of the Employment Equity Act, 1998, by the insertion in the definition of "public service" of the following paragraph: "(d) Comsec.". Both Acts purported to insert a paragraph (d) into the same definition.

3. The Intelligence Service Act, 2002, came into operation on 20 February 2003 and the Electronic Communications Security (Pty) Ltd Act, 2002, came into operation on 28 February 2003. The result of the different dates of commencement is that the amendments proposed by the Intelligence Service Act, 2002, and which came into effect on the 20 February 2003, were nullified by those amendments proposed by the Electronic Communications Security (Pty) Ltd Act, 2002, which dealt with the same matters and which came into effect on the 27 February 2003. If one looks at the example given in paragraph 2, the definition of "public service" in section 1 of the Employment Equity Act, 1998, now only refers to "Comsec" and not also to the "South African National Academy of Intelligence".

4. In order to correct this anomalous situation, it is proposed that the Schedule to the Electronic Communications Security (Pty) Ltd Act, 2002, be repealed with retrospective effect and that the consequential amendments contained in that Schedule be redrafted, with due cognisance of the amendments proposed by the Intelligence Service Act, 2002, in Schedule 2 to the Bill currently under scrutiny by the Portfolio Committee.

5. Schedule 1 of the Bill seeks to correct references to the Agency and Service in the Public Service Act, 1994 (Proclamation No. 103 of 1994).