General Intelligence Amendment Bill: deliberations
AD HOC PORTFOLIO COMMITTEE ON THE GENERAL INTELLIGENCE LAW AMENDMENT BILL; AD HOC SELECT COMMITTEE ON GENERAL INTELLIGENCE LAW AMENDMENT BILL: JOINT MEETING
17 October 2000
GENERAL INTELLIGENCE LAW AMENDMENT BILL: DELIBERATIONS
General Intelligence Law Amendment Bill [B36-20]
Intelligence Services Act No. 38 of 1994
National Strategic Intelligence Act No. 39 of 1994
Ministry's Proposed Amendments to General Intelligence Law Amendment Bill (See Appendix 1)
Chairperson: Ms N N Mapisa-Nqakula
Ministry of Intelligence representatives: Mr Dennis Nkosi and Ms Taki Netshitenzhe
The committee deliberated on the General Intelligence Law Amendment Bill that contains proposed amendments to the Intelligence Services Act 38 of 1994 and to the National Strategic Intelligence Act 39 of 1994. These changes were reflected in Clauses 1-20 and 21-24 respectively. The committee's discussions focussed mainly on Clauses 8 (Discharge of members on account of long absence without leave), 14 (Labour relations) and 16 (Restrictions on former members). The first issue was the Department's proposal to reduce the period of absence from 30 days to 14 days. Certain committee members were initially against the reduction but were satisfied when the Department gave their explanation justifying such change. The second issue dealt with intelligence members not being able to strike or to join trade unions. However the committee agreed that the provisions in the Bill did provide feasible solutions to these issues if one considers the nature of the work that members are involved in. The last contentious issue was the restraint of trade period. Committee members had various opinions on what it should be. The Chair responded by giving them a comprehensive explanation as to why an appropriate period should be decided on. They eventually did reach agreement.
The Ministry representatives presented their proposed amendments to the Bill. See document for these proposals:
Objects of the Bill
Ms Netshitenzhe stated that at present there are five objects in the Bill and that they are proposing that a sixth one be added which will read:
" Give the Minister the power to make regulations relating to intelligence information."
Clause 1 (Amendment of section 1 of Act 38 of 1994 as amended by section 35 of Act 47 of 1997)
Ms Netshitenzhe proposed that a whole range of new definitions be included in section 1 of Act 38 of 1994. [See proposed amendments].
Clause 2 (Amendment of section 3 of Act 38 of 1994)
Ms Netshitenzhe stated that section 3 of Act 38 has been replaced by a new section that is set out in the proposed amendments.
Clause 3 (Insertion of section 3A in Act 38 of 1994)
Mr Abram (UDM) suggested the deletion of the phrase, "purporting to have been" in line 12. Ms Netshitenzhe stated that she would make the necessary change. Section 3A(2) now reads, "Any prescribed document signed by the Minster and certifying that any person has been appointed as a member shall be prima facie proof that such person has been so appointed."
Clause 4 (Amendment of section 4 of Act 38 of 1994)
Ms Netshitenzhe stated that they have replaced the word "President" with the word "Minister" in line with the Public Service Act. She suggested the deletion of the word, "superintendence" in the entire section.
Clause 5 (Amendment of section 5 of Act 38 of 1994)
Ms Netshitenzhe stated that she had no other proposed amendments to section 5 other than those technical amendments reflected in the proposed amendments.
Clause 6 (Substitution of section 7 of Act 38 of 1994 by a new section 7 [Retirement age for members])
Ms Netshitenzhe explained that under the old legislation a member had to retire at the age of 65. The new requirement age is 60 years at present but the President had signed a document that provided for old members still to retire at age 65. However this document had no legal effect and therefore she is proposing the inclusion of this provision in the Bill.
Mr Abram asked whether the Department is trying to accommodate previous provisions of previous acts in this clause. Ms Netshitenzhe answered that they are.
Clause 7 (Amendment of section 8 of Act 38 of 1994)
The Chair asked Ms Netshitenzhe to explain why security clearances are expressly provided for in this section in the Bill.
Ms Netshitenzhe explained that previously only new members would have to go through security clearances whereas old members from the old regime were exempted from this. Now security clearances are a requirement for everyone.
Clause 8 (Amendment of section 9 of Act 38 of 1994 [Discharge of members on account of long absence without leave])
Ms Netshitenzhe said that they wish to change the period of absence from 30 to 14 days
Mr Abram noted that legislation is normally amended if it is inadequate. He asked why the period of absence been decreased from 30 days to 14 days. Had members abused the 30-day period?
Ms Netshitenzhe replied that the Minister wanted the period to be decreased to prevent members of the Intelligence Service from moonlighting for long periods of time. The shortening of the period is to ensure that they are focussed on their jobs.
Mr Green (ACDP) asked what happens if a member is detained overseas without his handler's knowledge. Must it be assumed that he is sacked if he is absent for longer than the stipulated period. What happens to his/her family? Do benefits continue?
Ms Netshitenzhe stated that where a member loses his job and he has been living in an official house, he is given 3 months to find alternative accommodations.
Ms Olckers (NNP) stated that section 9 (c) of Act 38 does provide for a member to appeal to the Minister if the Director General refuses to reinstate him but she asked what happens if there is a procedural problem.
Ms Netshitenzhe stated that procedural problems are already included in the appeal being made.
Mr Pillay (DP) asked if there is a limit on the time within which a member may appeal.
Ms Netshitenzhe stated that even if a member was absent for a year, he still has the right to appeal.
Mr Green asked whether the Department had applied their minds in proposing the reduction in the period from 30 days to 14 days or was it merely a technical change.
Mr Nkosi replied that the Minister wants to create a new intelligence culture. One of the areas that was looked at was the role of management. Mr Nkosi explained that if a manager notices that a member is not at work, he must enquire as to his whereabouts. Mr Nkosi stated that 14 days might seem like a short period of time but a day in the life of an operative is long.
The committee accepted his explanation.
Clause 9 (Amendment of section 12 of Act 38 of 1994)
Ms Netshitenzhe proposed amending the clause by deleting the underlined portion in the Bill that was initially inserted and to replace it with the words, "as prescribed".
Ms Olckers felt that "as prescribed" is too wide. She stated that she was under the impression that the committee wants to include as much of the provisions to be included in the regulations into the Act itself.
The Chair stated that the committee would leave the matter of sorting out the regulations to the Joint Standing Committee on Intelligence.
Clause 10 (Substitution of section 13 of Act 38 of 1994)
Ms Netshitenzhe proposed certain technical changes to this clause as well as the insertion of a new clause after this clause so as to repeal section 14 of Act 38 of 1994.
Clauses 11, 12, and13 (Repealed sections 15, 16, and 17 of Act 38 respectively)
These clauses remain unchanged. Ms Netshitenzhe proposed the inclusion of a new clause to repeal section 18 of Act 38 of 1994.
Clause 14 (Insertion of 19A in Act 38 of 1994 [Labour Relations])
Ms Netshitenzhe stated that provision was made in the Bill to deal with the issue of labour relations because Act 38 of 1994 makes no provision for it. She explained that members felt that their rights were not being looked after. The first provision in the clause prohibits members of the Intelligence Service from striking.
Mr Landers (ANC) stated that the Constitutional Court had not declared the prohibition of strikes as being unconstitutional. He stated that what they did declare as unconstitutional was a prohibition on protest action. Mr Landers felt that the provision thus passes the test of constitutionality.
The second provision provides for the Minister to establish mechanisms to maintain fair labour practices. Mr Mangena (AZAPO) felt that that the provision of such mechanisms to look after the rights of members, are acceptable. Mr Pillay agreed with him.
Mr Green stated that having members of the Service join trade unions would not work, as the problem would be the issue of secrecy. He felt that the forums would have to perform the job of trade unions in looking after the rights of members.
The Chair remarked that it seems that there is consensus that the clause is acceptable.
Clause 15 (Substitution of section 22 of Act 38 of 1994)
Ms Netshitenzhe stated that only minor technical changes were made to the clause.
Clause 16 (Insertion of section 22A in Act 38 of 1994 [Restrictions on former members])
Ms Netshitenzhe proposed inserting a restraint of trade provision for a period of one year in the event that a member leaves the service.
Ms Olckers felt that restricting a person's life skill would open up the matter for litigation in the Constitutional Court. Mr Scott (ANC) stated that it is a sensitive area and that it must be dealt with delicately.
Mr Bloem (ANC) was opposed to the one-year period. He felt that the period is too long. Mr Pillay on the other hand felt that the one-year period is reasonable. Mr Landers was convinced that one year is insufficient to restrain a former member.
The Chair asked how they had decided on the one-year period.
Ms Netshitenzhe stated that they looked at international trends and case law that requires a restraint of trade to be reasonable.
Mr Scott (ANC) and Mr Goniwe (ANC) were concerned that they were dealing with national security and that other industries' restraint of trade provisions could not be compared with it.
The Chair expressed similar sentiments and stated that they need to formulate legislation that is in tune with what the needs are. She stated that the problem at present is that many security companies are sprouting up everywhere. Most of the persons being employed by these firms are former members of SAPS, SANDF and even the intelligence and secret services. She emphasised that many of these firms are only acting as fronts for organisations that are providing counter intelligence services. The Chair wished to make it clear that she was not merely making a comment but that she was stating a fact. She felt strongly that the legislation should be appropriate to curb this problem.
Mr Mangena (AZAPO) recommended that the period be between 3-5 years depending on the sensitivity of the work done by the member.
The committee agreed and the Department agreed to reflect it in the amendment document together with other technical changes.
Clauses 18 and 24
Ms Netshitenzhe proposed the insertion of a new clause in addition to minor technical changes. The committee did not see any problems with these and they are reflected in the amendment document.
The Chair concluded the meeting saying that the following day they would peruse the amendments to check that they are as was proposed and thereafter to vote on the Bill.
REPUBLIC OF SOUTH AFRICA
AD HOC COMMITTEE ON THE GENERAL INTELLIGENCE LAW
GENERAL INTELLIGENCE LAW AMENDMENT BILL
On page 1, after line 7, to insert:
the insertion after the definition of "Director-General" of the following definition:
"former member" means any member of the Agency or the Service whose services have been terminated for any reason"
the insertion after the definition of "former member" of the following definition:
"Intelligence Review Board" means the Intelligence Review Board established by section 22B:
On page 1, after line 11, to insert:
the insertion after the definition of "Minister" of the following definition:
(a) a natural person;
(b) a partnership;
(c) a business trust;
(d) a foundation;
(e) any company or close corporation incorporated or registered in terms of any law; or
(f) any other body of persons corporate or unincorporated;
On page 1 to insert:
the insertion after the definition of "person" of the following definition:
"polygraphist" means a person who. in order to ascertain. confirm or examine in a scientific manner the truthfulness or otherwise of statements made by another person, uses skills and techniques in conjunction with any equipment and instrument designed or adapted for this purpose;
In the principal Act to insert after the definition of "prescribed" the following definition:
"private investigator" means a person in a private capacity and who for the benefit of another
(a) investigates and furnishes information regarding the identity,
actions, whereabouts, movements, affiliations, associations, habits,
personal character, reputation, trustworthiness, loyalty, occupation, previous employment, integrity, creditworthiness, transactions, financial position, life history or background of another person without the consent or knowledge of such a person;
(b) searches for someone who has or is alleged to have committed any crime, delict, breach of contract or other wrongful act, or for any evidence of such wrongdoing;
(c) searches for missing persons, property or other assets, or investigates the costs or responsibility for accidents, injuries or damage; or
(d) conducts surveillance or counter-surveillance;
the insertion after the definition of "private investigator":
"security equipment" means, but is not limited to the following security equipment:
(a) an alarm system;
(b) a safe. vault or secured container;
(c) satellite tracking;
(d) closed circuit television,
(e) other electronic monitoring or surveillance equipment;
(f) intrusion detection, access control, bomb detection, fire detection, metal detection, x-ray inspection and telephone security equipment.
used for the protection or safeguarding of persons or property;
the insertion after the definition of "security equipment" the definition:
"security service" means, but is not limited to the following services or activities:
a) protecting or safeguarding a person or property in any manner
b) giving advice on the protection or safeguarding of a person or property, or on the use of security equipment or the services of a private investigator;
c) providing a reactive or response service in connection with the safeguarding of a person or property in any manner;
d) providing a service aimed at ensuring order and safety at premises used for sporting, recreational, entertainment or similar purposes;
e) manufacturing, importing, distributing or advertising of monitoring devices contemplated in section 1 of the Interception and Monitoring Prohibition Act. 1992 (Act No. 127 of 1992);
f) performing the functions of a private investigator;
q) performing the functions of a polygraphist;
h) installing, servicing or repairing security equipment;
monitoring signals or transmissions from electronic security equipment;
i) performing the functions of a locksmith;
k) making a person or the services of a person available, whether directly or indirectly, for the rendering of any service referred to in paragraphs (a) to (k) and (m) to another person;
I) managing, controlling or supervising the rendering of any of the services referred to in paragraphs (a) to (I);
m) creating the impression in any manner that one or more of the services in paragraphs (a) to (m) is rendered.
1. On page 1, after line 15, to insert:
"The following section is hereby substituted for section 3 of the principal Act:
Continued Existence of Agency and Service
3(1) There exists in the Republic the Agency and Service, as the case may be, which consists of persons who became members at the commencement of this Act on 1 January 1995 and those persons appointed as members in terms of the provisions of this Act after commencement
2. On page1, to omit line 16
3. On page 1, to omit line 17
4. On page 1, to omit line 18
5. On page 1, in line 19 to omit "(3)" and to substitute "(2)"
1. On page 3, in line 12, after "document" to omit "purporting to have been"
1. On page 3, in line 21, after "command" to omit, "superintendence"
2. On page 3, in line 26, after "command" to omit, "superintendence"
1. On page 4, from line 2, to omit clause 7 and to substitute:
"7(a) A member shall have the right to retire and shall be so retired on the date when he or she attains the age of 60 years: Provided that a person who is an employee on the day immediately before the commencement of the General Intelligence Law Amendment Act, 2000 has the right to retire on reaching the retirement age or prescribed retirement date provided for in any other law applicable to him or her on that day.
(b) If such a member attains the said age after the first day of a month, he or she shall be deemed to have attained it on the first day of the following month.
(c) If it is in the public interest to retain a member in his or her post beyond the age at, which he or she is required to be retired in terms of subsection (1), he or she may with his or her consent, with the approval of the Minister be so retained from time to time, for further periods which shall not, except with the approval. of Parliament granted by resolution, exceed two years".
1. On page 4, in line 32, after "exceeding" to omit "30" and to substitute "14"
2. On page 4, from line 33 to omit "on account of misconduct"
3. On page 4, in line 38 after "permission" to omit "and" and to substitute "or"
4. On page 4, in line 40 after "exceeding" to omit 30 and to substitute "14"
1. On page 5, in line 5, to omit "in"
2. On page 5, in line 6, to omit "the case of misconduct or inefficiency" and to substitute "as prescribed"
1. On page 5, in line 13, after "3(2) to insert "(a) and (c)"
2. On page 5, in line 13, after "12(1) to omit "(a) (ii) and"
3. On page 5, in line 14, after "21," to omit "22A(2)" and to substitute "22B, 22E, 22F and 22G"
1. On page 5, in line 23, to insert:
"Repeal of section 14 of Act 38 of 1994
11. Section 14 of the principal act is hereby repealed."
1. On page 5, in line 23, after "of" to omit "1944" and to substitute "1994"
2. On page 5, in line 27, after "38" to insert "of 1994"
1. On page 5, in line 29 to insert:
"Repeal of section 18 of Act 38 of 1994
14. Section 18 of the Act is hereby repealed."
On page 6, in line 59, after "22A" to insert "22B, 22C(1), 22D and 22E(1)
1. On page 7, from line 3, to omit clause 16 and to substitute-
Disclosure of classified information by former members of the Agency or Service
22A. (1) A former member may not disclose in any form or any manner any information or material to any other person unless -
(a) the person to whom the information or material is disclosed is authorised by the Director-General to receive
(b) the Intelligence Review Board has granted permission for the disclosure of the information or material.
(2) Subsection (1) applies to any information or material received by the former member during, or subsequent to, the former member's employment or other service with the Agency or Service -
(a) that was marked as classified or that the former member knew or ought reasonably to have known was classified;
(b) that the former member knew or ought reasonably to have known was in the process of being classified at the time of disclosure.
Establishment of Intelligence Review Board
22B. (1) An Intelligence Review Board is hereby established, consisting of not less than three but not more than five persons appointed by the Minister of whom one shall be designated by him or her as the chairperson.
(2) The functions of the Intelligence Review Board are to -
(a) consider any application by a former member to disclose information or material in terms of subsection (1);
(b) perform any other prescribed function.
(3) The Minister shall appoint as members of the Board, fit and proper persons with integrity.
(4) No person shall be a member of the Intelligence Review Board if he or she does not have a security clearance certificate issued by the relevant authority.
(5) The Minister may determine -
(a) the term of office of the members of the Board;
(b) with the concurrence of the Minister of Finance, the remuneration and allowances to be paid to members of the Board:
Provided that employees appointed in terms of the Public Service Act. 1994 (Proclamation No.103 of 1994) and members of the Agency or Service, as the case may be, shall not be entitled to such remuneration and allowances.
(c) any other conditions of employment
(6) The Minister may remove a member of the Intelligence Review Board from office prior to the expiry of that member's term of office if -
(a) a member of the Intelligence Review Board is found guilty of misbehaviour:
(b) is unable to carry out responsibilities as a member of the Intelligence Review Board:
the security clearance of the member is withdrawn.
(7) The Minister may prescribe all matters, which are necessary or expedient for the functioning of the Intelligence Review Board.
Prohibited communications by former members
22C. (1) No former member of the Agency or Service, as the case may be, may communicate in the Republic or elsewhere in a manner that is likely to be detrimental to the security of the Republic with any person-
who is a member, representative or associate of the Agency or Service as the case may be;
(b) that co-operates or has co-operated with the Agency or Service. as the case may be, in respect of matters concerning the security of the Republic.
(2) Subsection (1) does not apply to communications of a purely personal nature.
Prohibited employment by former members
22D. (1) No former member may utilise in the Republic or elsewhere any
skills, information or material acquired as a result of their employment. by the Agency or Service in any manner, which may be detrimental to the security of the Republic or to the interests of the Agency or Service as the case may be.
Employment in private security industry
22E. (1) A former member may not render a security service for a period of
three years after leaving the Agency or Service, as the case may be, unless he or she has first obtained a clearance certificate from the Director-General.
(2) The Minister may make regulations concerning the manner in
which any former member may apply for clearance certificate in terms of subsection (1).
22F. (1) A former member may appeal to the Minister against the decision of the Intelligence Review Board stipulated in section 22B (2)
(2) A former member may appeal to the Minister against the decision of the Director-General to issue a clearance certificate in terms of section in section 22E
(3) The Minister may make regulations concerning the procedure of appeal by former members
Conduct of former members
22G (1) The Minister may prescribe the manner in which former members of the Agency or Service may conduct themselves in order to protect the interests of the Agency or
Service and the security of the Republic
(2) Regulations made by the Minister in terms of Sections 22B. 22E.
22F and 22G shall be made by notice in the Gazette
1. On page 7, after line 20, to insert:
"Amendment of section 26 of Act 38 of 1994
Section 26 of the principal Act, is hereby amended by the substitution for subsection (1) of the following subsection:
26 (1) Any civil proceedings against the State or any person in respect of anything done in pursuance of this Act, shall be instituted within [two] three years after becoming aware that the cause of action arose, and notice in writing of any such proceedings and of the cause thereof shall be given to the defendant not less than [one month] 30 calendar days before it is instituted;"
1. On page 7, in line 33, to omit "all matters relating to misconduct and discipline within" and to insert "as to all matter relating to discipline, command and control of members of"
1. On page 8, from line 25, to omit clause 24.