ATC240314: Report of the Ad Hoc Committee on the General Intelligence Laws Amendment Bill on the Public Participation Process, Dated 8 March 2024

Ad Hoc Committee on General Intelligence Laws Amendment Bill (NA) (2023)

Report of the Ad Hoc Committee on the General Intelligence Laws Amendment Bill on the Public Participation Process, Dated 8 March 2024

1. INTRODUCTION

Parliament established a multiparty Ad Hoc Committee on the General Intelligence Laws Amendment Bill (hereafter referred to as the Committee) on 12 October 2023 to process the General Intelligence Laws Amendment Bill, [B40-2023] (the Bill). The Bill was formally introduced to Parliament on 17 November 2023.

This report offers a brief introduction to the background and objectives of the Bill and thereafter provides a comprehensive overview of the public participation process inclusive of stakeholder engagements, public hearings, national hearings, and written submissions covering key insights, and recommendations derived from all inputs received on the Bill.

The report is structured into four parts, namely:

Part A: Stakeholder Engagements
Part B: Public (Provincial) Hearings
Part C: National Hearings (Oral Submissions)
Part D: Written Submissions

2. OVERVIEW OF THE PUBLIC PARTICIPATION PROCESS

Sections 59(1)(a) and 72(1)(a) of the Constitution of the Republic of South Africa,1996 (the Constitution) mandate the National Assembly (NA) and the National Council of Provinces (NCOP) to facilitate public participation in their legislative processes. The two aforementioned sections vest a positive Constitutional obligation on Parliament. The said obligation has since become settled in law and its interpretation has been the subject of court adjudication over time, notably in one of the key Constitutional Court decisions on the issue of public participation, in Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others, Sachs J wrote, that “the forms of facilitating an appropriate degree of participation in the law-making process are indeed capable of infinite variation. What matters is that a reasonable opportunity is offered to members of the public and all interested parties to know about the issue and have an adequate say in the law making”.

In Land Access Movement of South Africa and Others v Chairperson of the National Council of Provinces and Others (LAMOSA) the Constitutional Court stated that “the standard to be applied in determining whether Parliament has met its obligation of facilitating public participation is that of reasonableness”. The Court further noted that “reasonableness is dependent on a number of peculiar circumstances and facts”. The Court further held that “some difference should be paid to what Parliament considered appropriate in the circumstances, as the power to determine how participation in the legislative process will be facilitated rests on Parliament”. To this end, reasonable opportunity ought to be offered to members of the public and all interested parties.

In respect of the authority to determine the plan of how public participation will be facilitated, in Mogale and Others v Speaker of the National Assembly and Others, the Constitutional Court held that Parliament has the discretion to determine the manner in which to fulfil the obligation.

In its endeavour to discharge the obligation of facilitating public participation, Parliament codified what it deemed reasonable in a Public Participation Model. The Model has been considered by the Courts and found largely compliant with the Constitution in meeting the threshold for facilitating reasonable public participation. Key features of Parliament’s Model for public participation include:

pre-hearing workshops must be held in order to establish relationships with stakeholders;
develop effective communication and awareness programmes;
ensure that communities are mobilised;
ensure that consultation meetings are convened;
ensure that summaries of the Bill are translated into at least three languages spoken in a particular province; and
transport must be provided to the public hearing venues.

Recognising the Constitutional imperative regarding public participation in legislative processes, the Committee developed its public participation plan to facilitate public involvement in the legislative process. The plan sought to gather public input on the contents of the Bill through various methods, including stakeholder engagements, public (provincial) hearings, oral submissions (national hearings), and written submissions. To this end, between 5 November and 7 December 2023, the Committee held several engagements with interested and affected government stakeholders to receive input into the Bill. The Parliamentary processes subsequently moved to gather public input into the Bill in January and February 2024.

An advertisement with the contents of the Bill was published in national and community newspapers in 11 official languages. Through this advertisement calls for public comment were made, inviting the public to comment from 15 December 2023 to 31 January 2024. During this period several interested parties contacted the Committee requesting an extension of the deadline. Specifically, 13 written submissions were received requesting an extension of the deadline. The Committee therefore acceded to the request and extended the deadline for written submissions to 15 February 2024.

The Committee further conducted public hearings in five provinces, namely, Limpopo, Gauteng, Western Cape, KwaZulu-Natal, and Mpumalanga between 22 January to 18 February 2024. The process culminated with oral submissions to the Committee during a hybrid sitting on 20 and 21 February 2024.

3. BACKGROUND AND OBJECTIVES OF THE GENERAL INTELLIGENCE LAWS AMENDMENT BILL

In 2009, the civilian intelligence services were restructured through Presidential Proclamation 59 of 17 September 2009. Following this Proclamation, the National Intelligence Agency (NIA) and the South African Secret Service (SASS) were amalgamated into a new and centralised service, namely the State Security Agency (SSA). The amalgamation was formalised through government notices (912, 913, 914, and 915) issued by the Department of Public Service and Administration. However, the establishment of the SSA through the Proclamation was irregular due to the Constitutional requirement that the President can only establish intelligence services through legislation.

The establishment of the SSA through a Proclamation was a deviation from section 209(1) of the Constitution on the establishment of new intelligence services. It should be noted that the legislative amendments to rectify this anomaly took effect in subsequent years. Nonetheless, challenges brought about by the amalgamation remained resulting in President Cyril Ramaphosa establishing the High-Level Review Panel (HLRP) on the SSA in July 2018. The HLRP made the following recommendations:

the creation of the SSA through a Presidential Proclamation was irregular and recommended that the SSA be separated into a foreign service and a domestic service with maximum independence of each other with the minimum of shared services between them, if at all;

serious attention should be given to more precise and more focused definitions of the mandate/s of any resulting service and other sections of the broader intelligence community;
the current legislative provisions should be reviewed concerning the Minister’s powers as they relate to the administration of service;
develop a clear definition for manifestly illegal orders as applicable to the intelligence environment and recommend procedures and processes for handling these;
make relevant amendments to legislation to deal explicitly with manifestly illegal orders and the processes for dealing with them, including providing for the criminalisation of the issuing of, or carrying out a manifestly unlawful order;
the current legislative provisions regarding the role of the Minister of State Security vis-a-vis the service itself give too much scope for the Minister to interfere in the administration and operations of the service. Thus, those provisions concerning the Minister’s powers as they relate to the administration of the service should be reviewed;

NICOC should be relocated to the Presidency to give it the necessary authority to ensure compliance by the intelligence departments with the prescripts on intelligence coordination. Therefore, it was recommended to review the legislation in relation to NICOC and intelligence coordination.

In seeking to implement the afore recommendations, the Bill aims to amend the National Strategic Intelligence Act, 39 of 1994, the Intelligence Services Act, 65 of 2002, the Intelligence Services Oversight Act, 40 of 1994, and other relevant legislation. Through these amendments, the Bill seeks to achieve the following:

undo the establishment of the SSA, in line with the recommendations of the HLRP;
establish the South African Intelligence Agency, which will have a domestic focus and be responsible for counter-intelligence and intelligence gathering functions;
establish a South African Intelligence Service responsible for foreign intelligence gathering;
clarify the mandate of the two intelligence services that are to be established;
re-establish the South African National Academy of Intelligence (SANAI), which is responsible for intelligence training;
provide a legislative mandate for bulk interception, in compliance with the Constitutional Court judgement;
provide a regulatory framework for compliance monitoring, coordination, and alignment of intelligence activities;
provide for the regulation of cybersecurity, protection of information and intelligence;
enable the Minister to prescribe issues of accountability and control of intelligence services in line with Section 209 of the Constitution and;
to provide for matters related to former members of the intelligence services.

PART A: STAKEHOLDER ENGAGEMENTS HELD BETWEEN 5 AND 7 DECEMBER 2023

1. INTRODUCTION

Between 5 and 7 December 2023, the Committee engaged with government stakeholders to solicit feedback on the Bill. These stakeholders comprised the National Intelligence Coordinating Committee (NICOC), the South African Police Service - Crime Intelligence (SAPS-CI), and the Inspector-General of Intelligence (IGI).

This section of the report encompasses the submissions made over the course of both days mentioned afore and provides a detailed account of the proceedings and insights shared during each session.

2. OVERVIEW OF THE PROCEEDINGS

The chairperson, Hon JJ Maake, opened and welcomed all present at the respective hearings. He outlined that the purpose of the engagements was to receive submissions on the Bill. The chairperson explained that each stakeholder would be granted an opportunity to make a submission and that Members of the Committee would ask questions of clarity because deliberations on the submissions would take place at a later stage.

3. SUBMISSIONS

3.1 National Intelligence Coordinating Committee

The Coordinator of NICOC underscored the pivotal role played by NICOC within the intelligence community. He explained that NICOC served as a primary interface between intelligence-gathering services and the decision-makers who rely on intelligence to shape government policy direction.

NICOC explained that it was an entity within the SSA reporting to the Minister. It was dependent on the SSA, specifically the Minister, to provide and approve its financing, staffing, and other operational matters. This configuration proved challenging and limited NICOC’s effectiveness.

NICOC revealed previous instances where former Ministers interfered with its operations, including one attempt to downgrade NICOC to a unit within the Ministry. These instances raised concerns about NICOC’s autonomy and its consequent impact on operational effectiveness. Of concern was that the NICOC Coordinator lacked the authority to independently appoint staff within the office and that this authority was given to the Minister.

This centralised control undermined the Coordinator's ability to employ staff tailored to NICOC's specific needs and objectives. Additionally, the frequent overruling of appointments by lower-ranking officials on the SSA Appointment Board, despite the Coordinator's comparable rank to the Director-General, pointed to systemic issues within the organisation's hierarchy and decision-making processes. Such interference not only impeded NICOC's operational efficiency but also highlighted broader governance challenges within the intelligence community, necessitating reforms to safeguard institutional independence and enhance overall effectiveness. Top of Form NICOC made the following clause-by-clause recommendations:

Amendment of section 2 of National Strategic Intelligence Act, 39 of 1994, as amended by section 2 of Act 37 of 1998, section 2 of Act 67 of 2002, and section 2 of Act 11 of 2013

2 (b) (a) The functions of the Agency shall

The proposal is the insertion of (ii) supply intelligence regarding any such threat opportunity to NICOC;

(The deletion or omission of the original subsection that directs the Agency to supply intelligence to NICOC contradicts the provisions of section4 (2) (a) of the Act)

(ix) provide periodic national security briefing to the Joint Standing Committee on Intelligence (JSCI), members of Cabinet, Premiers, Parliamentary Presiding Officers and the Chief Justice;

(The proposal is the deletion of members of Cabinet in line with Section 4 (2) (a) of the Act which mandates NICOC to interact with Cabinet.

ix) provide periodic national security briefing to the Joint Standing Committee on Intelligence, Premiers, Parliamentary Presiding Officers and the Chief Justice;

Amendment of section 4 of Act 39 of 1994, as substituted by section 4 of Act 37 of 1998 and amended by section 25 of Act 66 of 2000, section 4 of Act 67 of 2002 and section 5 of Act 11 of 2013

The proposal is to amend section 4 (1) (f) on the co-option of members of departments of state by NICOC

4 (1) There is hereby established a National Intelligence Co-ordinating Committee, which shall consist of the following persons:

(a) The Co-ordinator for Intelligence appointed under section 5 (1), who shall be the Chairperson;

(b) the Director-General of the Agency;

(c) the Director-General of the Service

(d) the head of the intelligence division of the South African Police Service; and

(e) the chief of the intelligence division of the National Defence Force,

or the alternates of the said persons, and such members of departments of State, and other

relevant stakeholders as and when the need arises, who may be co-opted by Nicoc on a

permanent or on an ad hoc basis.

(c) by the substitution for subsection (3) of the following subsection:”

(3) The Minister—

(a) must appoint members or persons who will provide coordination and administrative support

to NICOC on such conditions of employment and security requirements as are applicable to

members of the intelligence services;

The proposal is as follows:

(3) The Coordinator, with the approval of the Minister—

(a) must appoint members or persons who will provide coordination and administrative support to the Office of the Coordinator on such conditions of employment and security requirements are applicable to members of the intelligence services;

The proposal to amend the section is line with section 5 (1) (a) of the Act which direct the Coordinator to manage and administer the functions of NICOC

(3) (b) The Minister may determine the organisational structure and grading of the posts for the functioning of NICOC in terms of the Intelligence Services Act, 65 of 2002;

The proposal is the amended provision as follows:

The Coordinator may determine the organisational structure and grading of the posts in the Office of the Coordinator for the functioning of NICOC with the approval of the Minister Intelligence Services Act, 65 of 2002;

The proposal is the deletion of this section as it is covered under the proposed section 4(1)(f)

(c) prescribe the manner in which NICOC may co-opt the Private Security Industry Regulator as defined in the Private Security Industry Regulator Act, 56 of 2001 in an adhoc or permanent basis;

(4) The budget of the NICOC shall be appropriated by Parliament as part of the budget vote of the intelligence services and shall be expended in accordance with the rules and procedures set out in the Public Finance Management Act, 1 of 1999).

The Proposal is to amend the section to read as follows

(4) The budget of the Office of the Coordinator shall be appropriated by Parliament as part of the budget vote of the intelligence services and shall be expended in accordance with the rules and procedures set out in the Public Finance Management Act, 1 of 1999.

3.2 Analysis of key issues emanating from deliberations with NICOC

This section will cover the salient issues raised during deliberations regarding NICOC’s input to the Bill. The points were as follows:

Independence

NICOC operated as a spending centre under the financial and resource administration of the SSA. However, this financial reliance had, over time, posed challenges to NICOC's autonomy and impeded its ability to carry out its mandate efficiently. In response to these concerns, NICOC advocated for a restructuring of its financial appropriations to safeguard its independence. This proposal suggested that NICOC's funding should either be allocated through an Act of Parliament or be specifically ring-fenced for its exclusive use.

Financial Independence

NICOC's financial dependency on the SSA had been a historical constraint, hampering its autonomy in executing its coordinating functions. To address this, NICOC proposed a fundamental change in its funding mechanism. By seeking financial allocations through an Act of Parliament or by establishing dedicated funds earmarked for NICOC, the influence of external entities could be mitigated and operational independence enhanced.

Organisational Empowerment

The legislation currently grants the Minister the authority to determine NICOC's organisational structure and post-grading. NICOC proposed amending these provisions to confer the Coordinator of NICOC the power to shape the organisational structure and post grading within the Office of the Coordinator. This autonomy would be subject to the Minister's approval and would empower the Coordinator to streamline NICOC's operations more efficiently.

Addressing Coordination Concerns

NICOC plays a pivotal role in coordinating intelligence among intelligence services. However, concerns were raised regarding its proximity and reliance on the SSA, leading to questions about its autonomy in the coordination role. NICOC’s submission emphasised the need to address these concerns, ensuring that NICOC can maintain its independence while effectively fulfiling its crucial coordination responsibilities.

The proposed changes in funding allocation and organisational empowerment were essential for enhancing NICOC's independence and efficiency. By safeguarding financial autonomy and empowering the Coordinator with greater control, NICOC could strengthen its coordination functions, thereby addressing concerns and solidifying its pivotal role in the intelligence community.

Top of Form

3.3 South African Police Service-Crime Intelligence

SAPS-CI showed support for the Bill and noted that it would strengthen the capabilities of the national intelligence structures and enhance cooperation. SAPS-CI made the following clause-by-clause recommendations:

Clause 1

Cybersecurity: The Bill proposes the insertion of a definition for “cybersecurity” in the National Strategic Intelligence Act, 39 of 1994, but the SAPS noted that it is unclear how this will impact the Cybersecurity Bill that is to be promoted by the Department of Justice and Constitutional Development.

Definitional syntax: The syntax of the first two definitions below differ slightly.

“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”

Security competence test: Provision is made for a definition of “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.

Clause 20(a)

The SAPS is in support of the amendments on the establishment of the national academy of intelligence but notes that the inclusion of other intelligence structures in the command, control, and the Advisory Committee of the SANAI will ensure more involvement and relevancy of other intelligence structures.

3.4 Analysis of key issues emanating from deliberations with SAPS-CI

SAPS-CI was supportive of the Bill and made minimal suggestions for substantive changes. The Division noted that clarity on selected definitions as well as the standardisation of terminology would assist in improving the Bill.

SAPS-CI proposed that consideration be given to clarify the vetting requirement for an ‘applicant to an organ of state’. Should the Bill require the vetting of all applicants to an organ of state as opposed to vetting only the appointed candidate, it may become an administrative burden on the country's intelligence services and/or result in unnecessary delays in appointments. Such delays were evident in, for example, the Portfolio Committee on Police's process to appoint candidates to serve on the Critical Infrastructure Council. The Portfolio Committee has been unable to complete the process due to delays in the vetting.

Inspector-General of Intelligence

The IGI expressed that the Constitution established intelligence services as crucial components of a democratic society. However, intelligence services operated in secret, which could be incompatible with the features of a democratic state. The absence of adequate safeguards to regulate these powers posed a threat to democracy. Therefore, the Constitution recognised the need to maintain a balance between transparency and secrecy by ensuring proper oversight and regulation of the functions of the intelligence services.

The Constitution provides for civilian oversight of the intelligence services through an IGI which serves as an impartial ombud and assurance function. The Intelligence Services Oversight Act, 40 of 1994 defines the role and function of the IGI and states that the incumbent ought to perform their duties independently, in good faith, and without fear, bias, or prejudice.

However, the current institutional and administrative arrangements were incompatible with the aforementioned provisions, making the IGI subordinate to the intelligence services. This has been recognised by the HLRP on the SSA in 2018, and the Judicial Commission of Inquiry into Allegations of State Capture, Corruption, and Fraud in the Public Sector including Organs of State in 2022, which was endorsed by the President. These review initiatives recommended granting the IGI independent status to allow them full control of the financial, human resources, and administrative functions. The IGI made the following clause-by-clause recommendations:

PART A – PROPOSED AMENDMENTS TO THE INTELLIGENCE SERVICES OVERSIGHT ACT, 40 OF 1994 (OVERSIGHT ACT)
	CURRENT PROVISION / NOT PROVIDED FOR	PROPOSED AMENDMENT	REASON / MOTIVATION
A	DEFINITIONS
	The Bill only provides for definitions in the Oversight Act that gives effect to the separation of the SSA. It is therefore suggested that the following definitions be included that will provide greater clarity for the execution of the oversight mandate
1	Monitor	Monitor means to oversee, examine, evaluate, and investigate the compliance of the intelligence and counterintelligence activities of a Service with the Constitution, applicable laws, and relevant policies	Meaning assigned in legislation
2	Review	Review means to oversee, examine, evaluate, and assess the conduct of intelligence and counter-intelligence activities of a Service	Meaning assigned in legislation
3	Significant Intelligence Failure Section 7 (11) (b)	Significant Intelligence Failure means, but is not limited to, an incident, act, or omission, which has occurred within a Service’s statutory mandate, which resulted in a failure by that Service to comply with any of its statutory functions and operational priorities and which impacted on a national security interest of the Republic	Reporting obligation of Heads of Services The definition proposed would cure a subjective discretion on the part of Heads of Services on meanings assigned to these terms

PART A – PROPOSED AMENDMENTS TO THE INTELLIGENCE SERVICES OVERSIGHT ACT, 40 OF 1994 (OVERSIGHT ACT)
	CURRENT PROVISION / NOT PROVIDED FOR	PROPOSED AMENDMENT	REASON / MOTIVATION
A	DEFINITIONS
	The Bill only provides for definitions in the Oversight Act that gives effect to the separation of the SSA. It is therefore suggested that the following definitions be included that will provide greater clarity for the execution of the oversight mandate
4	Unlawful Intelligence Activity	Unlawful Intelligence Activity means an activity carried out by a Service that is in contravention of the Constitution and applicable laws on intelligence and counter-intelligence	Reporting obligation of Heads of Services The definition proposed would cure a subjective discretion on the part of Heads of Services on meanings assigned to these terms
5	Fair presentation	Fair presentation means compliance with and including complete, accurate and reasoned representation of the intelligence and counter-intelligence activities of a Service in accordance with the Regulation on Certification	This would serve to assign a meaning to this term used in the proposed amendment to section 7 (11) (c) and to provide context on the assurance of the intelligence report of a Service
6	Intelligence	The Oversight Act provides for a definition of intelligence that differs from the definition of intelligence contained in the National Strategic Intelligence Act, 39 of 1994. It is suggested that definition of intelligence in either the Oversight Act or the National Strategic Intelligence Act, 39 of 1994, be amended to reflect the same definition or a combination of both definitions	To ensure unambiguity and standardization
7	Constitution	Citation to be removed (108 of 1996)	Provided for in the Citation of Constitutional Laws Act, 5 of 2005

PART A – PROPOSED AMENDMENTS TO THE INTELLIGENCE SERVICES OVERSIGHT ACT, 40 OF 1994 (OVERSIGHT ACT)
	CURRENT PROVISION / NOT PROVIDED FOR	PROPOSED AMENDMENT	REASON / MOTIVATION
A	SCOPE
8	Clause 7 - Services and Intelligence Services Entities Section 7(7) of the Oversight Act provides that the functions of the Inspector-General, are in relation to the Services -……..	Section 7 (7) to be amended as follows: ‘The functions of the Inspector-General are, in relation to the Services and the Intelligence Services Entities’	The exclusion limits the scope of the oversight mandate through the exclusion of the Academy and the Centre. Training has a direct impact on the conduct of the intelligence and counter-intelligence activities. Moreover targeted and bulk interception are the most intrusive of the powers of the Services and which must necessitate oversight
9	Section 7 (7A) refers to reports on monitoring and review investigations shall contain findings and recommendations to the exclusion of referrals from the JSCI, functions designated and complaints	Section 7 (7A) should be amended to read : ‘The reports of the IG contemplated in subsection (f) shall contain the findings and recommendations of the IG, which shall be binding’	To ensure consistent and standardised reporting by ensuring that all reports of the IGI contain findings and recommendations Section 7A to include an offence for non-implementation of recommendations
10	Currently Section 7 (7) (c) provides for the IGI to perform functions designated to him/her by the President or any Minister responsible for a service. There is no explicit provision for the IGI to perform functions designated by the JSCI.	Section 7 (7)(c) should be amended to include the JSCI	Currently the JSCI may refer complaints to the IGI in terms of section 3 (f). Whilst it may be argued that section 7 (6) empowers the JSCI to request the IGI to perform oversight functions, it is submitted that section 7 (6) is a reporting provision for the purpose of the accountability by the IGI to the JSCI for the overall functioning of the OIGI

PART A – PROPOSED AMENDMENTS TO THE INTELLIGENCE SERVICES OVERSIGHT ACT, 40 OF 1994 (OVERSIGHT ACT)
	CURRENT PROVISION / NOT PROVIDED FOR	PROPOSED AMENDMENT	REASON / MOTIVATION
A	INDEPENDENCE
11	Section 210 provides for the civilian monitoring of the activities of the Services. The need to provide for civilian monitoring of the Intelligence Services arose as part of the constitutional reforms adopted during the development of the new dispensation of SA. The mission of the IGI is to provide assurance that the Intelligence Services operate within the framework of the rule of law and due process and act with probity and respect for human rights. The independence of the IGI was recommended by the 2006 and 2008 Commissions and endorsed by the High Level Review Panel Report and the Judicial Commission of Inquiry into allegations of State Capture
12	Clause 11 - The Minister must, after consultation with the Inspector-General, appoint such number of persons to the office of the Inspector-General as may be necessary for the performance of the functions of that office, on such conditions of employment and security requirements as are applicable to members of the intelligence services (section 7 (12)).	It is recommended that there should be a new provision inserted in the Oversight Act to replace section 7 (12) which should read as follows: ‘The Inspector-General may, subject to this Act, do and cause to be done all things necessary for the efficient superintendence, control and functioning of the OIGI including the appointment of persons to the office and the management of the budget, as prescribed’	The amendment in the Bill limits the independence of the IGI. The suggested amendment entrenches the independence of the IGI and will provide for the IGI the power to appoint persons, deal with disciplinary matters, manage the budget and administration. This is in line with the HLRP Report and the Judicial Commission of Inquiry
13	Clause 11 – The Minister may determine the organisational structure and grading of posts for the function of the Office of the Inspector-General in terms of the Intelligence Services Act, 65 of 2002.	New provision that replaces the current one in the Bill to read: ‘The Inspector-General may determine the organisational structure and grading of posts for the functioning of the Office of the Inspector-General.	This is a new provision that was not consulted on and limits the independence of the IGI.

PART A – PROPOSED AMENDMENTS TO THE INTELLIGENCE SERVICES OVERSIGHT ACT, 40 OF 1994 (OVERSIGHT ACT)
	CURRENT PROVISION / NOT PROVIDED FOR	PROPOSED AMENDMENT	REASON / MOTIVATION
A	CERTIFICATION FUNCTION
	The certification function of the IGI is a key function that is a culmination of the other oversight functions into an annual certificate. Certification is regarded by Ministers responsible for the Services and the JSCI as a key element of oversight over the intelligence community. The IGI is currently required to issue a certificate stating the extent to which he/she is satisfied with the report on the activities of a Serve and an opinion on the lawful conduct of the Services. In the absence of reporting standards, the Services have relied on their PFMA Annual Report for certification purposes which has resulted in the IGI having to issue a declaimer. This is clearly not what is envisaged in the execution of this function.
14	Current section 7 (11) (c) As soon as practicable after receiving a copy of a report referred to in paragraph (a), the Inspector-General shall submit to the Minister responsible for the Service in question, a certificate stating the extent to which the Inspector-General is satisfied with the report and whether anything done by that Service in the course of its activities during the period to which the report relates, in the opinion of the IGI ………..‘	Section 7 (11) (c) should be amended to read: ‘As soon as practicable after receiving a copy of a report referred to in paragraph (a), the Inspector-General shall submit to the Minister responsible for the Service in question, a certificate in which an opinion is expressed on the fair presentation of the report and whether anything done by that Service in the course of its activities during the period to which the report relates, in the opinion of the IGI……….. ‘	Section 7 (11) (c) is unclear of what is required for inclusion in the certificate through the use of the phrase ‘the extent to which the IGI is satisfied with the report.’ This is highly discretionary and challenging to measure

PART A – PROPOSED AMENDMENTS TO THE INTELLIGENCE SERVICES OVERSIGHT ACT, 40 OF 1994 (OVERSIGHT ACT)
	CURRENT PROVISION / NOT PROVIDED FOR	PROPOSED AMENDMENT	REASON / MOTIVATION
A	REGULATIONS
	Section 8 provides for Regulations to be issued by the Minister acting in concurrence with the JSCI. This section is all encompassing by providing for the regulation of the performance of the functions by the IGI and any other matter that is requires or permitted to be prescribed. This provision imports an aspect of discretion on what is required to be regulated.
14	Clause 12 – The Minister, acting with the concurrence of the Committee must make regulations regarding – (b) the performance of the functions designated to the Inspector-General under 7(7) (c)	The current provision in section 8 (1) (b) must remain unchanged to enable the Minister and the JSCI to regulate the performance of all the functions of the IGI	This amendment is highly problematic in that it only provides for ‘designated functions’ to be regulated, to the exclusion of the other functions of the IGI which is inexplicable taking into that the other functions of the IGI is executed on a daily basis and the Constitution provides for the monitoring of the activities of the Services. Moreover this amendment limits the power of the Minister and the JSCI

PART B - NATIONAL STRATEGIC INTELLIGENCE ACT, 39 OF 1994
	CURRENT PROVISION / NOT PROVIDED FOR	PROPOSED AMENDMENT	REASON / MOTIVATION
B	GENERAL PROVISIONS
1	Clause 1 - Definition of intelligence gathering means the acquisition and processing of relevant and reliable information into intelligence products related to any domestic or foreign opportunity or potential opportunity or threat or potential threat to national security or threats to the advancement or protection of national security;’’;	Suggested amendment: ‘intelligence gathering’ means the acquisition and dissemination of relevant and reliable information for the development of intelligence products related to any domestic or foreign opportunity or potential opportunity or threat or potential threat to national security or threats to the advancement or protection of national security’	The definition of covert collection is deleted and replaced by this definition. Gathering is a lower order term referred to the action of collection. This definition conflates collection (acquisition or gathering) and processing which are 2 separate intelligence activities. Alternatively covert collection should be appropriately defined
2	Clause 2 – (v) impede and apprehend members suspected of contravention of this Act and related regulations and hand them to the relevant law enforcement agencies	Apprehend confers the powers of arrest. It is therefore unclear whether intelligence members have now been given the powers of arrest. In the absence of an offences provision in the National Strategic Intelligence Act, it remains uncertain on how a contravention will take place	The power to apprehend (arrest) resides within SAPS. To confer these powers onto members of the SSA seeks to undermine the intention of the Constitution and the White Paper and counters the segregation of functions between SSA and SAPS
3	Clause 2 – (ix) provide periodic national security briefing to the JSCI, members of Cabinet, Premiers, Parliamentary Presiding Officers and the Chief Justice;	The scope of parties included and excluded in this provision needs to be reviewed	Consideration must be given to the separation of powers and the exclusion of parties such as inter alia the National Security Advisor and the IGI

PART C - INTELLIGENCE SERVICES ACT, 65 OF 2002
	CURRENT PROVISION / NOT PROVIDED FOR	PROPOSED AMENDMENT	REASON / MOTIVATION
C	GENERAL PROVISIONS
1	Clause 13 – Civilian Intelligence Structures Defined as Agency, Service and the Academy	Civilian Intelligence Service not defined despite being referred to in the Bill.	This terms creates ambiguity between civilian intelligence structures , which is defined and civilian intelligence service
2	Clause 32 No member of the Civilian Intelligence Service may strike or induce or conspire with any other member or person to strike.	Suggested amendment ‘No member of the Civilian Intelligence Service may strike or induce or conspire with any other member or person to strike nor may the employer cause the lock-out of a member or person	To give effect to section 23 read with section 36 of the Constitution.
3	Clause 32 The Minister must in the prescribed manner make provision for internal rules to deal with complaints, grievances and consultation on conditions of service and human resources within the Civilian Intelligence Service.’’.	Suggested amendment ‘The Minister must in the prescribed manner make provision for internal rules to deal with complaints, grievances, alternate dispute resolution mechanisms and consultation on conditions of service and human resources within the Civilian Intelligence Service.’’.	To provide for independent dispute resolutions mechanism outside the management hierarchy of the SSA

Analysis of key issues emanating from deliberations with the IGI

This section will cover the salient issues raised during deliberations regarding IGI’s input to the Bill. The points were as follows:

Independence

The current funding structure for the IGI stands as a significant impediment to its operational efficiency and overall effectiveness. Historically, the IGI was reliant on financial support from the SSA. This arrangement led to a conflation of roles between the SSA and the IGI, thereby hampering the latter's ability to exercise effective oversight.

To address these inherent challenges, proposals were made for the amendment of section 7(12) of the Oversight Act. The proposed amendments advocated for empowering the IGI to undertake all necessary actions within the framework of the Act to ensure the efficient superintendence, control, and functionality of the Office of the Inspector-General of Intelligence (OIGI). This included the pivotal aspects of personnel appointments and budget management as prescribed. By advocating for these amendments, the IGI sought to rectify the existing funding mechanism, thereby fostering an environment conducive to robust oversight and enhanced operational effectiveness.

Binding Recommendations

In execution of the mandate, the IGI makes findings and recommendations on oversight matters, but these have been subject to non-implementation. To address this, the IGI proposed an amendment to section 7(7A), suggesting that findings and recommendations made in reports be binding. This proposal sought to strengthen the impact of the IGI's recommendations, ensuring that recommendations were not disregarded. However, the term binding raised questions about enforceability and the recourse available in cases where a Service disagreed with or challenged the recommendations.

The use of Legislative language

Clause 11 states that the Minister may determine the organisational structure and grading of posts for the function of the OIGI in terms of the Intelligence Services Act, 65 of 2002. The new provision in the Bill should read: The Inspector-General may determine the organisational structure and grading of posts for the functioning of the Office of the Inspector-General.

The Committee noted that legal advice ought to be sought on the use of the word ‘may’ and the legal ramifications thereof.

Provision for a Deputy Inspector-General

An important aspect not included in the amendments was the provision for a Deputy IGI. The absence of such a role, despite historical challenges, raised concerns about continuity in leadership. The issue of continuity was critical for the effective functioning of oversight, and the omission of the Deputy Inspector-General role requires further consideration and justification.

PART B: PUBLIC HEARINGS HELD BETWEEN 22 JANUARY AND 18 FEBRUARY 2024

INTRODUCTION

This section of the report details the statistical analysis of the hearings, an overview of the public hearings, and proposed legislative amendments.

2. THE PUBLIC HEARING PROCESS

The Committee conducted public hearings in five provinces, namely, Limpopo, Gauteng, Western Cape, KwaZulu-Natal, and Mpumalanga between 22 January to 18 February 2024. In each province, the Committee targeted a minimum of two Districts wherein one Local Municipality would host the hearing. The District Municipality determined the location and attendance per Local Municipality. Parliament provided transport and refreshments for mobilised participants. For safety and logistical reasons, Parliament would only collect participants within a 100km geographical radius.

Public hearings were not exclusively limited to border towns, but several border-adjacent towns were included in the process. This approach was informed by the fact that intelligence plays a pivotal role in the development and security of nations, particularly in border-lying towns. For developing nations, a robust intelligence service serves as a critical tool for safeguarding national interests, promoting economic growth, and ensuring political stability. In border areas, where potential security threats are pronounced, intelligence becomes even more crucial. It provides essential insights into cross-border activities, helps identify and address security challenges, and facilitates effective border control measures along with other government agencies. Intelligence allows governments to make informed decisions, allocate resources efficiently, and collaborate with neighbouring countries to tackle shared security concerns. In border-adjacent towns specifically, intelligence helps to inform the government’s management of the flow of people and goods, its efforts to prevent illicit activities, and programmes to foster a sense of safety and well-being among residents. Ultimately, a well-developed intelligence service is not only a shield against potential threats but also a key driver for the sustainable development of both developing nations and their border regions.

Table 1: Committee programme for public hearings per province

Date	Province	Municipality	Venue
22 January 2024	Limpopo Province	Musina Local Municipality	Musina Multipurpose Centre
23 January 2024	Limpopo Province	Greater Tzaneen Local Municipality	Nkwankowa Community Hall
24 January 2024	Limpopo Province	Lephalale Local Municipality	Seleka Community Hall
26 January 2024	Gauteng	City of Tshwane	Council Chamber
27 January 2024	Gauteng	City of Johannesburg	Jabula Recreational Centre
6 February 2024	Western Cape	Garden Route Municipality	Rosemoore Community Hall, George
7 February 2024	Western Cape	City of Cape Town	Belthorn Community Centre, Athlone
10 February 2024	KwaZulu-Natal	uPhongolo Local Municipality,	Ncotshane Community Hall
11 February 2024	KwaZulu-Natal	eThekweni Metropolitan Municipality	Yellowwood Park Civic Hall
12 February 2024	KwaZulu-Natal	Msunsuzi Local Municipality	Sakhumuzi Hall at Edendale (kwaDambuza)
17 February 2024	Mpumalanga	Nkomazi Local Municipality	Kobwa Community Hall
18 February 2024	Mpumalanga	Msukaligwa Local Municipality	Mayor’s Parlour

The successful execution of public hearings relied on planning and proactive measures. At the heart of this planning was the establishment of a team, comprising Committee support service personnel along with key support units from Parliament, including Health and Safety, Protection Services, Public Education, Public Relations, Media Relations, Broadcasting, Household Services, and Language Services. The combined services of these units ensured that the public hearings in the identified Municipalities were conducted in adherence with Parliament’s model for public participation.

In detailing the process followed, the initial planning phase was done by an advanced team which included Health and Safety, Household Services, and the Public Education Office units.

The Public Education Office was responsible for conducting pre-hearing educational workshops to educate and establish relationships with stakeholders. It was through these workshops that communities were mobilised to participate in the hearing. Furthermore, the workshops were also used to educate communities on the objectives of the Bill. Summaries of the Bill were translated into at least three languages spoken in a particular province and made available at the workshops.

The Health and Safety units embarked on on-site visits to each hearing venue to assess the viability, suitability, and compliance status of the identified. These units provided regular feedback to support personnel, identifying any additional requirements necessary for each venue to ensure the success of upcoming hearings. Based on the insights gathered during these visits, hearings proceeded without significant disruptions.

On the day of the public hearings, Protection Services were responsible for access and egress control. Whilst Language Services provided translation services for the hearings, including sign language, as such participants were encouraged to make input in a language of their choice. The Committee Section personnel assisted with catering and transportation at all the hearings.

In terms of media coverage, mainstream radio stations and television channels conducted several interviews with the Chairperson. Community radio stations were utilised to air promotions about the hearings. Furthermore, all public hearings were streamed live on Parliamentary social media platforms, namely, Facebook, YouTube, and X - formerly Twitter. Additionally, media statements and interviews with local radio stations were conducted daily to further inform those who were not in attendance of the salient matters arising from the hearings.

Reports of each public hearing were drafted including matters that needed to be referred to other Committees as a way of providing feedback on matters that fall outside the scope of the Bill. In light of the aforementioned considerations, the Committee's planning and execution of public hearings adhered closely to Parliament's established Public Participation model as reflected previously.

3. STATISTICAL ANALYSIS OF THE PUBLIC HEARINGS

The table presented below reflects consolidated figures from all public hearings conducted in each province, aiming to provide a comprehensive overview of the total number of participants and their respective submissions. These consolidated figures encompass submissions made in support of the Bill, those against it, as well as those expressing partial support. Additionally, the table accounts for submissions where participants did not explicitly indicate their stance on the Bill.

Table 2: Statistics of public hearings

TOTAL STATISTICAL ANALYSIS OF THE PUBLIC HEARINGS
	Limpopo	Gauteng	Western Cape	KwaZulu-Natal	Mpumalanga	Total
Total Number of Participants	Musina: 250 Tzaneen: 260 Lephalale: 250	Pretoria: 240 Johannesburg: 170	George: 171 Cape Town: 170	uPhongolo: 125 eThwekwini: 155 Msunsuzi: 183	Nkomazi: 168 Musukaligwa: 157	2 299
Submissions	Musina: 26 Tzaneen: 18 Lephalale: 20	Pretoria: 28 Johannesburg: 21	George: 29 Cape Town: 25	uPhongolo: 17 eThwekwini: 20 Msunsuzi: 15	Nkomazi: 18 Musukaligwa: 16	253
In support	Musina: 5 Tzaneen: 10	Pretoria: 13 Johannesburg: 3	George: 13 Cape Town: 11	uPhongolo: 3 eThwekwini: 6 Msunsuzi: 1	Nkomazi: 14 Musukaligwa: 9	88
Against	Musina: 6 Tzaneen: 2	-	George: 1 Cape Town: 3	uPhongolo: 3 eThwekwini: 1	Nkomazi: 1 Musukaligwa: 3	20
Partly support		Johannesburg: 2	-	-	-	2
No indication	Musina: 15 Tzaneen: 6 Lephalale: 20	Pretoria: 15 Johannesburg: 13	George: 15 Cape Town: 11	uPhongolo: 14 eThwekwini: 11 Msunsuzi: 13	Nkomazi: 3 Musukaligwa: 4	140

The statistical analysis conducted on the public hearings held across various provinces provides insights into the level of public engagement and the spectrum of opinions expressed regarding the proposed legislation. A total of 2 299 individuals participated in the hearings across all provinces, indicating a substantial level of interest and active participation in the public consultation process. Upon further examination of the submissions, certain noteworthy patterns emerged. Specifically, 88 individuals expressed explicit support for the proposed legislation, whereas only 20 individuals were noted as opposing it. Additionally, two submissions indicated partial support for the legislation.

4. OVERVIEW OF THE PUBLIC HEARINGS PROCESS PER PROVINCE

Below is an overview of the public hearings per province, detailing the attendance, general observations, summary of inputs, and analysis of inputs.

MUSINA LOCAL MUNICIPALITY

General observations on the public hearings process

On 22 February 2024, the Committee held a public hearing in Musina Local Municipality within the Vhembe District. The hearing was attended by more than 250 people from the region and a total of 26 oral submissions were made during the proceedings. Of the 26 oral submissions, 5 participants indicated their support of the Bill while 6 participants opposed the Bill. 15 participants did not express their support or opposition to the Bill.

Summary of inputs

Community raised several concerns, primarily around security and service delivery affecting the Musina area. Concerns raised revolved largely around the porous South African borders and the resultant cross-border crime that affected the area. Community members expressed concern with the increase in crime allegedly perpetrated by undocumented foreign nationals.

Community members bemoaned the broader impact of cross-border crime on the community specifically as it related to the increase in drug trade and the subsequent increases in substance abuse in the local community. Similarly, the alleged use of undocumented foreign nationals by local industry at the expense of the domestic workforce was of concern.

The state’s ability to respond effectively to border safeguarding issues was questioned. Members expressed the need for more South African Police Service (SAPS) and South African National Defence Force (SANDF) members to be deployed in the border areas. This was of particular concern to some community members allegedly that foreign nationals cross into South Africa with weapons threatening the safety of border adjacent towns.

Community members also alleged that bribery of SAPS and SANDF members was a concern that diminished the security forces’ capacity to respond to cross-border security threats. The capacity of the judiciary to deal with criminal cases in the area was further noted as a concern. Linking the broader security concerns around border safeguarding in the area to the functions of the intelligence services, community members questioned whether the intelligence services were effective given the high rate of cross-border crime.

Analysis of inputs

Border towns face a plethora of cross-sectional security challenges exacerbated by porous borders, posing significant threats to both national and local security. Primarily, porous borders enable the unchecked flow of illegal goods, weapons, and people, fostering an environment ripe for criminal activities such as drug trafficking, human smuggling, and terrorism. Furthermore, porous borders heighten the risk of transnational crimes, as criminals can easily evade law enforcement by crossing back and forth between neighbouring countries. This constant influx of illicit activities not only destabilises the socio-economic fabric of border communities but also strains resources and undermines the rule of law. This was evident with all submissions made during the hearing.

Concerns around border safeguarding and the proliferation of cross-border crime and unregulated migration illustrated the need for intelligence-driven border safeguarding and effective intelligence services. Improved intelligence should inform more effective border safeguarding.

The border environment was illustrative of an environment in need of effective domestic and foreign intelligence-gathering capabilities. In this complex setting, effective intelligence services would be vital in ensuring national security by monitoring and understanding activities within and beyond the borders. Both domestic and foreign intelligence were crucial components in safeguarding against potential threats, such as illegal border crossings, criminal activities, and security breaches.

A key objective of the Bill is to establish dedicated domestic and foreign intelligence services. The effectiveness of these services is paramount in dealing with the aforementioned matters related to national security. Furthermore, the Bill outlines provisions for both the Agency and Service to furnish intelligence related to national strategic intelligence to NICOC for coordination. This aims to enhance coordination among different stakeholders, including those in the border environment, and foster a more streamlined and effective approach within the intelligence community.

GREATER TZANEEN LOCAL MUNICIPALITY

General observations on the public hearings process

On 23 February 2024, the Committee held a public hearing in the Greater Tzaneen Local Municipality within the Mopani District Municipality. The hearing was attended by over 260 people from the region and a total of 18 oral submissions were made during the hearing. 10 participants indicated that they supported the Bill while 2 participants opposed the Bill. Other participants did not express their support or opposition to the Bill.

Summary of inputs

The primary concern submitted during oral submissions related to the IGI. Members of the public expressed the need for the role of the IGI to be strengthened and its independence reinforced. This submission was specifically related to the need for greater accountability of intelligence services.

Input emphasised security concerns that directly affect communities. Many members highlighted poor border control and associated cross-border crime as significant issues. Examples cited included drug smuggling, which had a tangible impact on local communities, as well as the trafficking of stolen vehicles and the escalating problem of undocumented migration in the area due to lax enforcement of migration laws. Concerning these security challenges, participants expressed doubts about the extent of intelligence gathering in the region and its effectiveness in informing security forces.

Analysis of Inputs

Concern around the need for the role of the IGI to be strengthened and its independence reinforced requires careful consideration during further deliberations on the Bill. These concerns noted by the public should be viewed against the input that the IGI provided to the Ad Hoc Committee on 7 December 2023.

Similar to input from residents of Musina, concerns around border safeguarding and the proliferation of cross-border crime and unregulated migration relate to the Bill it was evident that intelligence-driven border safeguarding required effective intelligence services.

The combination of concerns around border safeguarding and crime further highlighted the need for an integrated intelligence-gathering approach. Effective intelligence coordination capabilities are therefore essential, with NICOC playing a central role in this regard.

LEPHALALE LOCAL MUNICIPALITY

General observations on the public hearings process

On 24 February 2024, the Committee held a public hearing in the Limpopo province at the Seleka Community Hall in the Lephalale Local Municipality within the Waterberg District. The event was attended by around 250 members and a total of 20 oral submissions were made during the proceedings. None of the participants express their support or opposition to the Bill.

Summary of inputs

Further community input focused specifically on security concerns affecting communities. Poor border control and related cross-border crime were noted by many members. Examples included drug smuggling, which ultimately affects local communities; the smuggling of stolen vehicles from South Africa; rising undocumented migration in the area and the lack of implementation of migration laws. About undocumented migration, participants noted concerns around allegations that some migrants were involved in criminal activities, and that their businesses did not comply with legislation, and that some may even be involved in transnational crime and terrorism. Some members also highlighted concerns around human trafficking, especially that of children.

About these security concerns, some participants questioned whether intelligence gathering was taking place in the area and whether it informed the security forces. Another member noted the rise in online scams affecting the community, which shows the importance of addressing matters of cybersecurity.

Analysis of Inputs

The inputs illuminated critical security concerns that impacted communities, particularly in regions with porous borders. Among the concerns were poor border control and cross-border crime, exemplified by drug smuggling and the trafficking of stolen vehicles, which not only directly endangered public safety but also carried broader socio-economic ramifications, ultimately jeopardising the welfare of residents.

Furthermore, the escalating issue of undocumented migration exacerbated these security challenges, emphasising the necessity for robust laws and their diligent enforcement. The failure to address this matter not only compromised border integrity but also exposed communities to exploitation by criminal elements.

The concerns and doubts regarding the adequacy of intelligence gathering in the area added another layer of complexity to the security landscape. Effective intelligence was indispensable for identifying and mitigating security threats, yet uncertainties surrounding its reliability raised questions about the overall efficacy of security measures in addressing identified risks. Without dependable intelligence, security forces may have struggled to anticipate and respond effectively to emerging threats, leaving communities vulnerable to exploitation. The afore underscored the need for effective intelligence-gathering capabilities. By addressing these multifaceted challenges and enacting appropriate intelligence laws, authorities could better safeguard communities and mitigate the various security risks posed by cross-border crime and undocumented migration.

CITY OF TSHWANE METROPOLITAN MUNICIPALITY

General observations on the public hearings process

On 26 January 2024, the Committee held a public hearing in the City of Tshwane in the Gauteng Province. The hearing was attended by 240 people and 28 oral submissions were made during the proceedings. A total of 13 participants indicated that they supported the Bill while 15 made no express statements either in support or opposition to the Bill.

Summary of inputs

Several members of the public raised concerns about the state of cyber security in South Africa and expressed the need for this to be addressed in the Bill. This was closely linked to the concept of data security and the right to privacy. Members of the public also claimed that the Bill in its current form did not provide for adequate checks on bulk surveillance and therefore failed to safeguard privacy and freedom of expression. Concern was further raised regarding the Bill’s perceived inclusion of compulsory vetting of civil society organisations.

Some members of the public cautioned that the intelligence structures should remain accountable as they have access to sophisticated technology that can be used against people. As such, several members expressed the need for the powers of the IGI to be strengthened, independence ensured, and further consideration given to the length of the IGI’s term in office.

Members of the public made the following recommendations:

further deliberation on the definitions used in the Bill is required, specifically the definition of National Security;
members expressed the need for the powers of the Minister to be kept in check in terms of the day-to-day activities of the intelligence services;
members expressed the need for professionalism to be enshrined in the Bill;
it was proposed that all Members of the intelligence services be forced in law to attend the Intelligence Academy;
clause 2 should provide for a parliamentary process for the appointment of the Directors-General of the intelligence services;
clauses 7 to 12 should make provision for alternative labour relations mechanisms as is found in, for example, the South African National Defence Force;
clause 11 which refers to the non-renewable term of five years of the IGI should be reconsidered and;
clause 18 should make provision for the recruitment of personnel who are not from tertiary institutions.

Other broader themes addressed by public input include high levels of crime affecting communities and the proliferation of undocumented migration. The public requested that intelligence operations also address crime and assist in strengthening border safeguarding.

Analysis of inputs

Overall, the public input reflects a comprehensive set of concerns and recommendations aimed at enhancing the effectiveness, accountability, and responsiveness of South Africa's intelligence services in the context of evolving security challenges and technological advancements.

Several substantive comments were made that will require further deliberation. These include:

whether the Bill makes sufficient provision for cybersecurity concerns. This should be viewed against the Cybercrimes Act, 19 of 2020, and the omission of the concept of cyber security from said Bill as well as proposals that a separate cybersecurity Bill be developed;
whether the Bill in its current form sufficiently addresses the safeguards as detailed in the Court judgement on Bulk Surveillance;
whether sufficient accountability is enshrined in the Bill concerning the vetting of civil society organisations;
whether the Bill allows sufficient independence for the IGI;
ensuring that definitions in the Bill are aligned with legislation and not ambiguous;
whether the Bill provides sufficient limitations on the power of the Minister of Intelligence;
input on the appointment of the Directors-General in the intelligence services;
ensuring that the Bill aligns with labour relations requirements in other legislation and, if not, whether alternative legislative or structural requirements exist and;
ensuring that the Bill allows for effective recruitment and training processes for the intelligence services.

In addition to the above, concerns around border safeguarding and the proliferation of cross-border crime and unregulated migration relate to the Bill as it is evident that intelligence-driven border safeguarding requires effective intelligence services.

CITY OF JOHANNESBURG METROPOLITAN MUNICIPALITY

General observations on the public hearings process

On 27 January 2024, the Committee held a public hearing in the City of Johannesburg in the Gauteng Province. The hearing was attended by 170 people and 21 oral submissions were made during the proceedings. 3 participants indicated support for the Bill while 3 were against it and 2 were partly in support. 13 made no express statements either in support or opposition to the Bill.

Summary of inputs

The Committee received several substantive submissions from the public focusing on the content of the Bill. These included the need for the Committee to reconsider some of the definitions used in the Bill, notably that of national security. Other members of the public expressed the need for safeguards to be built into the Bill, especially regarding the provisions for bulk surveillance conducted by the intelligence services. The public reiterated the need for the right to privacy to be considered in the final Bill.

Members of the public also commented on the structural design of the security services as outlined in the Bill. Notably, there were calls for the NICOC to operate independently from the services, echoing similar sentiments for the independence of the IGI.

Additionally, there was a widespread call for strengthening the accountability of intelligence services within the Bill. This included submissions mirroring those from Tshwane, emphasising the necessity to bolster the independence and powers of the IGI.

Analysis of inputs

Several substantive comments were made that will require further deliberations, most notably the definitions outlined in the Bill. Moreover, there was a need to scrutinise whether the scope of intelligence gathering by the intelligence services concerning potential opportunities to national security is overly broad and whether there should be stronger mechanisms for accountability in this aspect.

To address the public concern raised about the independence of NICOC, deliberations on NICOC’s relocation to the Presidency was required as this was a recommendation of the HLRP. Further deliberations on the Bill’s provisions for independence and powers of the IGI are also required. More broadly, it is essential to ensure that the Bill incorporates adequate measures to uphold accountability within the intelligence services.

Furthermore, review of the Bill to clarify ambiguous provisions, strengthen safeguards against abuse of power, and ensure alignment with democratic principles and constitutional values. This may involve refining language to clearly define the scope of surveillance powers and establish robust oversight mechanisms to prevent overreach by intelligence services.

GEORGE LOCAL MUNICIPALITY

General observations on the public hearings process

On 6 February 2024, the Committee held a public hearing in the George Local Municipality within the Garden Route District Municipality in the Western Cape Province. The hearing was attended by 171 people and 29 oral submissions were made during the proceedings. In total, 13 participants indicated that they supported the Bill, 1 participant opposed the Bill and others made no express statements either in support or opposition to the Bill.

Summary of inputs

Many of the submissions received related to safety and security at the local level, highlighting the need for effective domestic intelligence and specifically crime-intelligence capability to inform policing in the area. Input on the Bill focused on the need for closer cooperation between local communities and the intelligence services. Members of the public noted that structures such as neighbourhood watch and ward communities could provide valuable information to intelligence services. They also expressed the need for intelligence services to recruit from local communities, universities, and unemployed youth.

There was specific input to some sections of the Bill, including a proposed additional requirement in Section 2(b)(iii) for the President to inform Premiers of provinces affected about national security-related matters in order for local authorities can direct provincial law enforcement agencies to react.

Additionally, a call was made for intelligence sharing with agencies that combat the smuggling of endangered wildlife. Other participants noted the need for the Bill to make a more concerted effort to prevent torture by operatives of intelligence services. Calls were further made for improved cybersecurity capabilities and for intelligence-sharing between South African and international intelligence agencies in this regard. Requests for the strengthening of the IGI and measures to ensure the IGI’s independence were repeated.

Analysis of inputs

Several aspects raised during the public engagements in George were already addressed in the Bill or other legislation. For instance, calls for clauses on torture in the Bill may be considered redundant as there is no reference to torture in the Bill. Furthermore, this aspect would be extensively covered in the Prevention of Combating and Torture of Persons Act, 13 of 2023.

To effectively address the concerns raised in the public submissions regarding safety and security at the local level, as well as the specific recommendations related to the Bill it is essential to consider potential amendments to the legislation. One strategy could involve integrating provisions that foster closer collaboration between intelligence services and local communities, such as establishing formal channels for information sharing and partnerships with neighbourhood watch groups and community organisations. Additionally, proposed enhancements to sections of the Bill such as notifying provincial authorities of security threats and facilitating intelligence-sharing to combat wildlife smuggling should be carefully reviewed and incorporated to enhance the legislation’s efficacy. Addressing concerns about the independence of the IGI could involve clarifying and reinforcing their powers within the legislative framework.

CITY OF CAPE TOWN MUNICIPALITY

General observations on the public hearings process

On 7 February 2024, the Committee held a public hearing in the City of Cape Town in the Western Cape. The hearing was attended by approximately 170 people and 25 oral submissions were made during the proceedings. 11 participants indicated support for the Bill while 3 opposed it and others made no express statements either in support or opposition to the Bill.

Summary of inputs

The Committee received several substantive submissions from the public focusing on the content of the Bill. Central to the submissions received was that while the Bill aimed at restructuring the SSA, the Bill fell short in addressing several critical issues. It neglected findings of malfeasance uncovered by the HLRP and the Judicial Inquiry into State Capture. Additionally, it overlooked recommendations from the 2008 Ministerial Review Commission on Intelligence and rulings from the High and Constitutional Courts regarding communications and interception.

A major concern with the Bill was its problematic definitions, particularly regarding national security. Inputs put forward mentioned that the vague and circular nature of these definitions created ambiguity and allowed for potential abuse of power. Furthermore, the Bill lacked provisions to ensure the independence and effectiveness of oversight bodies such as the IGI and the JSCI. Without adequate safeguards and transparency measures, the risk of abuse and impunity within intelligence agencies remained high.

Another contentious issue was the proposal for mandatory security vetting of individuals and institutions deemed of national security interest, which may include non-profit and religious organisations. This broad scope raised concerns about privacy infringement and the potential for abuse of power, particularly given the intelligence services’ history of targeting civil society groups. Moreover, some inputs mentioned that the Bill’s approach to mass surveillance through the National Communicants Centre lacked sufficient oversight and failed to address previous court rulings aimed at safeguarding privacy and freedom of expression.

Overall, many submissions mentioned that the Bill required significant revisions to address concerns and ensure alignment with constitutional principles and international standards and that failure to enact meaningful reforms risked perpetuating past failures and undermining public trust in intelligence agencies.

Analysis of inputs

Several substantive inputs were made that will require further deliberations by the Committee. The Bill was criticised for its failure to address crucial issues despite aiming to restructure the SSA. To remedy these shortcomings and ensure effective governance, several recommendations were proposed:

the Bill’s definitions, particularly those related to national security, ought to be refined for clarification to avoid ambiguity and potential abuse of power. Clear and precise definitions will provide a solid framework for intelligence activities while safeguarding against overreach;
provisions should be included in the Bill to ensure the independence and effectiveness of oversight bodies such as the IGI and the JSCI. Enhanced safeguards and transparency measures are essential to prevent abuse and maintain public trust in intelligence agencies;
the proposal for mandatory security vetting of individuals and institutions deemed of national security interest should be carefully reviewed. To address concerns about privacy infringement and potential abuse of power, vetting procedures should be tailored to focus on those with access to classified information and critical infrastructure, rather than broad categories such as non-profit and religious organisations and;
the approach to mass surveillance through the National Communicants Centre requires robust oversight mechanisms to safeguard privacy and freedom of expression. The Bill should address previous court rulings and ensure that surveillance activities adhere to constitutional principles and international standards.

uPHONGOLO LOCAL MUNICIPALITY

General observations on the public hearings process

On 10 February 2024, the Committee held a public hearing in uPhongolo local municipality in the Zululand District Municipality in the KwaZulu-Natal Province. The hearing was attended by 125 people and 17 oral submissions were made of which only 3 participants indicated that they supported the Bill. Other participants made no express statements either in support or opposition to the Bill.

Summary of inputs

The majority of submissions received during the review focused on South Africa’s insufficient border safeguarding and widespread illegal migration. Observations from members of the public highlighted how these conditions enabled undocumented foreign nationals to engage in various criminal activities, including drug trafficking, illicit cigarette trade, illegal mining, and running small businesses. Consequently, several participants questioned the effectiveness and presence of the country's intelligence services in addressing these issues.

Furthermore, participants raised doubts about the intelligence services’ efficacy, citing recent events such as the unrest in July 2021, the docking of the Lady R Russian cargo vessel at a South African naval port with alleged munitions exports, and reports of explosives in Sandton. Additionally, the high rate of killings of councillors and traditional leaders in KwaZulu-Natal were all evidence that intelligence services were not functioning inadequately.

Participants also highlighted the prevalent crime levels in the area and emphasised the importance of intelligence services being more closely integrated with communities. They stressed the need for protecting whistle-blowers who expose crime and other illicit activities as a specific requirement.

Analysis of inputs

The examples of perceived lapses in intelligence put forward by participants, such as during the July 2021 unrest, highlight the need for intelligence services to improve efficiency. The Bill seeks to deal with the shortcomings of the intelligence service, to some extent through the re-establishment of a dedicated domestic branch. Furthermore, the Bill seeks to ensure that intelligence reaches the relevant decision-makers in time to prevent a reoccurrence of intelligence lapses such as in July 2021. In this regard, NICOC plays a key role in ensuring that intelligence is well coordinated.

The public further provided input on the need for whistle-blowers to be protected. The protection of whistle-blowers is accommodated in alternative legislation, such as the Protected Disclosures Amendment Act, 5 of 2017. However, the Ad Hoc Committee may further deliberate on whether sufficient safeguards exist in current legislation and the Bill as it relates to whistle-blowers and their informing of the intelligence services.

Finally, the focus on border safeguarding, cross-border crime, and the need to address undocumented migration again points to the need for border safeguarding to be addressed and the role of the intelligence services in this environment enhanced. Improved intelligence should inform more effective border safeguarding. This is, however, a practical intelligence-services arrangement and may not warrant specific legislative changes. The Ad Hoc Committee may wish to satisfy itself that the new structure of the intelligence services as proposed in the Bill provide adequate scope for the services to address these challenges.

eTHEKWENI METROPOLITAN MUNICIPALITY

General observations on the public hearings process

On 11 February 2024, the Committee held a public hearing in the eThekwini Metropolitan Municipality in the KwaZulu-Natal Province. The hearing was attended by 155 people and 20 oral submissions were made. Of the total submissions, 6 participants indicated that they supported the Bill, 3 rejected the Bill and other participants made no express statements either in support or opposition to the Bill, with some noting the Bill required significant amendments.

Summary of inputs

Many of the inputs received from participants in eThekwini revolved around the lack of capacity of the intelligence services. These observations were informed of the July 2021 unrest and the evident lapse in intelligence early warning and responses. Members of the public also questioned the services’ capacity to deal with illegal migration, cross-border crime, and the high number of foreign nationals in the country. Participants also pointed to the high crime rate in Durban and its surroundings and noted the need for better crime intelligence.

Members of the public noted that definitions in the Bill needed to be strengthened as they were too open-ended and likely to cause abuse of power by the intelligence services. Specific reference was made to the definitions of national security, potential opportunities of threats, domestic intelligence, foreign intelligence, and threats. Questions were also raised around the determination of a threat to the state, and that this concept was deemed too wide with many actions, or non-actions, potentially being perceived as a threat to the state.

Members of the public further noted that the Bill increased the powers of the Minister. Concerns were raised around vetting, specifically the provision to vet any person or institution of national security interest and that this may impede freedom of expression. The Bill also calls for vetting of persons with access to critical infrastructure. It was noted that this was impractical and that it may impede certain freedoms. An example was made of the SABC buildings which are considered critical infrastructure and having a vetting requirement for employees working there may impact journalistic freedom.

Furthermore, there were calls for the Bill to have safeguards against the abuse of secret funds. Participants also called on the Committee to ensure that the Bill aligns with other legislation such as the Anti-Money Laundering and Combating Terrorism Financing Amendment Act, 22 of 2022. Clarity was sought on the placement of NICOC within the presidency given that the Minister appoints members of NICOC, but they are reporting to the President.

Analysis of inputs

Key considerations in terms of deliberations on the Bill include the refinement of definitions to ensure that it is not open to abuse. Specific definitions mentioned include:

• national security;

• potential opportunities for threats;

• domestic intelligence;

• foreign intelligence and;

• threats

Deliberations may be required on the aspect of vetting a person or institution of national security interest and how this relates to existing legislation. Furthermore, the matter of accountability of the intelligence services requires consideration. This includes that the powers allocated to the Minister are limited and not open to abuse and, secondly, that the IGI and NICOC have sufficient powers to carry out their functions. Further consideration is also required as to whether enough oversight safeguards are built into the Bill to prevent the misuse of secret funds.

MSUNDUZI LOCAL MUNICIPALITY

General observations on the public hearings process

On 12 February 2024, the Committee held a public hearing at the Msunduzi Local Municipality in the KwaZulu-Natal Province. The hearing was attended by 183 people and 15 oral submissions were made. Only one person indicated support for the Bill while one person opposed it. Other participants made no express statements either in support or opposition to the Bill.

Summary of inputs

The input was predominantly focused on service delivery matters with little substantial input to the Bill. General themes that relate to the Bill include concerns around border security and the high number of undocumented foreign nationals in the country. High crime levels in the area and the lack of adequate police responses were also raised.

Members of the public noted the need for accountability of South Africa’s intelligence services. Specific reference was made to the need for accountability in terms of the spending of the intelligence services’ allocated funds. Participants further called for careful consideration of the Constitutional Court judgement on bulk surveillance and that it must be ensured that the Police can still use evidence from electronic devices in criminal cases.

Analysis of inputs

During further deliberations, it must be ensured that the Bill aligns with the Constitutional Court judgement on bulk surveillance as well as guarantees in terms of accountability of the intelligence services. Such deliberations may include whether the Bill provides sufficient oversight guarantees of the intelligence services’ expenditure.

NKOMAZI LOCAL MUNICIPALITY

General observations on the public hearings process

On 17 February 2024, the Committee held a public hearing in the Nkomazi Local Municipality, Ehlanzeni District, in the Mpumalanga Province. The hearing was attended by 168 people and 18 oral submissions were made during the proceedings. In total, 14 participants indicated that they supported the Bill, one participant opposed the Bill and others made no express statements either in support or opposition to the Bill.

Summary of inputs

The Bill garnered widespread support from most members of the public in the Nkomazi Local Municipality. A significant area of endorsement was in the Bill's establishment of the Intelligence Academy (SANAI), which participants believed would have enhanced the quality of intelligence services. They stressed the importance of implementing specific recruitment criteria to ensure a professional workforce. Additionally, participants highlighted the potential of a more professional and well-trained intelligence service to address instances of intelligence failures, such as the unrest in July 2021.

Similar to other border regions, cross-border crime was a major concern in the area. This encompassed activities such as the smuggling of stolen vehicles, drug trafficking, human trafficking, and the trafficking of counterfeit medicine.

Moreover, the public emphasised the importance of safeguarding the constitutional rights of South Africans in their submissions. They called for clarification of the Minister's role and advocated for limitations on the Minister's powers. There was also a suggestion to establish a council, akin to the Judicial Services Council, responsible for appointing senior leaders within the organisation, including the Director-General and Deputy Director-General. Additionally, participants proposed that intelligence structures should be held accountable to Parliament and underscored the need for adequate infrastructure to support these initiatives.

Analysis of inputs

The feedback from the public regarding the Bill presents several key insights into their perspectives on intelligence services and border security. Firstly, the establishment of the Academy within the Bill was widely supported, indicating a recognition of the importance of investing in training and professional development for intelligence personnel. This reflected a desire for improved quality and effectiveness within the intelligence services.

Additionally, the emphasis on specific recruitment criteria highlighted concerns about the current capabilities and professionalism of intelligence personnel. Participants recognised the need for a skilled and competent workforce to effectively address security challenges, such as cross-border crime and intelligence failures.

The mention of intelligence failures, particularly the unrest in July 2021, underscored the public's expectation for intelligence services to proactively identify and address security threats. There was a clear desire for a more robust and proactive approach to intelligence gathering and analysis to prevent similar incidents in the future. The concerns raised about cross-border crime highlighted the significant security challenges facing border regions, including the smuggling of vehicles, drugs, and counterfeit goods, as well as human trafficking. This emphasises the importance of intelligence-driven measures.

MSUKALIGWA LOCAL MUNICIPALITY

General observations on the public hearings process

On 18 February 2024, the Committee held public hearings in the Msukaligwa Local Municipality, Gert Sibande District, in the Mpumalanga Province. The event was attended by 157 people and 16 oral submissions were made during the proceedings. Nine participants indicated that they supported the Bill while three were not in support. Others made no express statements either in support or opposition to the Bill.

Summary of Inputs

The Committee received substantive submissions from the FW de Klerk Foundation. In response, the foundation proposed the need for the Committee to clarify definitions in the Bill and to enhance oversight mechanisms. Another submission asserted that the Bill was not aligned with several sections of the Constitution and emphasised the importance of safeguarding democratic rights within the Bill.

Despite these concerns being raised, the majority of participants expressed support for the Bill. They noted the positive impact of implementing the recommendations of the HLRP to split the intelligence services into domestic and foreign branches. Many members of the public associated this with the expectation that a domestic intelligence agency would strengthen border safeguarding and address the high levels of crime in South Africa. Additionally, they believed that this restructuring would enable the intelligence services to prevent a recurrence of the unrest witnessed in July 2021.

Analysis of Inputs

The submissions received by the Committee, particularly those from the FW de Klerk Foundation, offer significant insights into the concerns and suggestions regarding the proposed Bill. The foundation's emphasis on the need for clarifying definitions within the Bill and enhancing oversight mechanisms highlights a desire for greater clarity and transparency in the legislation are areas that must be thoroughly deliberated.

Despite these concerns, the majority of participants expressed support for the Bill, particularly in light of its proposed restructuring of the intelligence services. The endorsement of implementing recommendations from the HLRP to establish separate domestic and foreign intelligence branches suggests a recognition of the potential benefits such a restructuring could bring, including improved border security and crime prevention capabilities. Moreover, the anticipation that these changes could help prevent future instances of civil unrest demonstrates a proactive approach to addressing security challenges.

Overall, the input indicates a nuanced response to the proposed Bill, with stakeholders highlighting both areas of concern and potential areas for improvement.

PROPOSED AMENDMENTS EMANATING FROM PUBLIC HEARINGS

This section outlines the six recurring amendments identified during the public hearings held across five provinces, namely:

Broad and ambiguous definitions;
Apprehension;
Security vetting;
Bulk interception;
Independence and powers of the IGI and;
Independence of NICOC.

While there were variations in the emphasis on specific amendments, the aforementioned amendments were consistently raised by participants. Each proposed amendment will be thoroughly discussed, and recommendations from public hearings will be presented below.

Broad and ambiguous definitions

The Bill seeks to amend several definitions, but concern arose over the broad and ambiguous nature of the proposed changes. Participants highlighted the inherent dangers of vague definitions in intelligence legislation, noting that they could potentially grant intelligence service excessive powers with limited oversight. Notably, participants emphasised that the vague language used in the definitions could facilitate expansive interpretations, posing risks to privacy rights. For example, definitions such as opportunities and potential opportunities were identified as particularly problematic, introducing uncertainty and increasing the likelihood of misuse.

In light of these concerns, the definitions in the Bill require careful consideration, especially considering the recommendation of the HLRP to streamline definitions, particularly those pertaining to mandates and other sections of intelligence. Additionally, participants stressed the importance of tight definitions in intelligence laws to ensure clarity, transparency, and adherence to democratic principles. The below recommendations were made:

PROVISION IN THE BILL	PROPOSED PROVISION
Amendment of Section 1 of Act 39 of 1994, as amended by Section 1 of Act 37 of 1998, section 24 of Act 66 of 2000, section 1 of Act 67 of 2002, section 1 of Act 52 of 2003, and section 1 of Act 11 of 2013
National Security “the capabilities, measures, and activities of the State to pursue or advance – (a) any threat; (b) any potential threat; (c) any opportunity; (d) any potential opportunity; or (e) the security of the Republic and its people, in or outside the Republic by section 198 of the Constitution” The existing definition of “national security” is expanded to include “opportunity or potential opportunity”.	National Security “the protection of the Republic's interests, citizens, institutions, and sovereignty from internal and external threats, as governed by the principles set out in section 198 of the Constitution”.
Opportunity or Potential Opportunity “Such capability measure or activity employed to pursue and advance national security by section 198 of the Constitution”	“opportunity or potential opportunity” is unworkable because it is ambiguous, overbroad, subjective, and circular. This makes the definition open to abuse which could result in the unreasonable and unjustifiable limitation of various fundamental rights. The inclusion of “opportunity or potential opportunity” makes the definition of “national security” unconstitutional and open to abuse – which is arbitrary and contrary to the rule of law and could result in the unreasonable and unjustifiable limitation of various fundamental rights. Delete the definition of “opportunity or potential opportunity” from the Bill.
Person or Institution of National Security Interest “any person or institution, identified by the Agency in the form and manner prescribed, that conducts himself/herself or itself or engages in activities that are inconsistent with the principles set out in section 198 of the Constitution including any person or institution that engages in activities that are defined as a threat to national security in terms of this Act” The new definition of “person or institution of a national security interest” is overbroad. It includes conduct and engagement in activities inconsistent with section 198 of the Constitution. This means religious organisations (and their leaders, employees, and members) can be considered of national security interest because they affect and reflect South Africans’ resolve to seek a better life.	“any person or institution suspected of espionage”.
Threat to National Security The expanded definition of “threat to national security” includes “subversion and undue influence by hostile interests on government processes, policies and the sovereignty of the State and its organs”. The definition is so wide that it could potentially include persons and institutions who oppose government policies, regulations, and draft legislation (Bills) – especially since it does not expressly exclude and protect “lawful political activity, advocacy, protest or dissent”. Religious institutions (and their leaders, employees, and members) and other members of society can engage in political activity, advocacy, protest, or dissent that is lawful and that is their constitutional right. Thus, it is in the interest of our constitutional democracy that such activities be excluded from the Bill. The overbroad definition will enable the State to gather intelligence on anyone it deems a “threat to national security” including religious institutions, civil society, activists, concerned citizens, and journalists without ever telling them.	The Bill does not define “threat”. Insert definition and define as “impending danger of serious harm to the Republic as one, sovereign, democratic state founded on the values set out in section 1 of the Constitution”.
Security Competence Test “administering a vetting investigation to determine the security competence of a person or institution and if such person or institution is suitable to access classified information or critical infrastructure of the State or is viewed as vulnerable to blackmail, undue influence or manipulation or security compromise or is a person or institution of a national security interest in terms of Section 4(2)(a)(i)” The disjunctive reading of the new definition of “security competence test” makes the definition overbroad. Almost any person is vulnerable to blackmail, undue influence and manipulation. However, that does not mean that they are a threat to national security and that the State should be able to perform a security competency test on them. That would be irrational. Security competence tests should be limited to only those individuals with access to classified information and critical infrastructure of the State.	“administering a vetting investigation to determine the security competence of a person to determine whether such person is suitable to access classified information or critical infrastructure of the State. Such vetting investigation should consider whether the person is a security compromise because they are seen as vulnerable to blackmail, undue influence or manipulation”.
Domestic Intelligence “intelligence on any internal threat or opportunity or potential opportunity or threat or potential threat to national security”	“intelligence on any internal threat to national security”.
Foreign Intelligence “intelligence on any external threat or opportunity or potential opportunity or threat or potential threat to national security”	“intelligence on any external threat to national security”.
Intelligence Gathering “the acquiring and processing of relevant and reliable information into intelligence products related to any domestic or foreign opportunity or potential opportunity or threat or potential threat to national security or threats to the advancement or protection of national security”	“the acquiring and processing of relevant and reliable information into intelligence products related to any domestic or foreign threats to national security”.

PROVISION IN THE BILL

PROPOSED PROVISION

Amendment of Section 1 of Act 39 of 1994, as amended by Section 1 of Act 37 of 1998, section 24 of Act 66 of 2000, section 1 of Act 67 of 2002, section 1 of Act 52 of 2003, and section 1 of Act 11 of 2013

National Security

“the capabilities, measures, and activities of the State to pursue or advance – (a) any threat; (b) any potential threat; (c) any opportunity; (d) any potential opportunity; or (e) the security of the Republic and its people, in or outside the Republic by section 198 of the Constitution”

The existing definition of “national security” is expanded to include “opportunity or potential opportunity”.

National Security

“the protection of the Republic's interests, citizens, institutions, and sovereignty from internal and external threats, as governed by the principles set out in section 198 of the Constitution”.

Opportunity or Potential Opportunity

“Such capability measure or activity employed to pursue and advance national security by section 198 of the Constitution”

“opportunity or potential opportunity” is unworkable because it is ambiguous, overbroad, subjective, and circular. This makes the definition open to abuse which could result in the unreasonable and unjustifiable limitation of various fundamental rights.

The inclusion of “opportunity or potential opportunity” makes the definition of “national security” unconstitutional and open to abuse – which is arbitrary and contrary to the rule of law and could result in the unreasonable and unjustifiable limitation of various fundamental rights.

Delete the definition of “opportunity or potential opportunity” from the Bill.

Person or Institution of National Security Interest

“any person or institution, identified by the Agency in the form and manner prescribed, that conducts himself/herself or itself or engages in activities that are inconsistent with the principles set out in section 198 of the Constitution including any person or institution that engages in activities that are defined as a threat to national security in terms of this Act”

The new definition of “person or institution of a national security interest” is overbroad. It includes conduct and engagement in activities inconsistent with section 198 of the Constitution. This means religious organisations (and their leaders, employees, and members) can be considered of national security interest because they affect and reflect South Africans’ resolve to seek a better life.

“any person or institution suspected of espionage”.

Threat to National Security

The expanded definition of “threat to national security” includes “subversion and undue influence by hostile interests on government processes, policies and the sovereignty of the State and its organs”.

The definition is so wide that it could potentially include persons and institutions who oppose government policies, regulations, and draft legislation (Bills) – especially since it does not expressly exclude and protect “lawful political activity, advocacy, protest or dissent”.

Religious institutions (and their leaders, employees, and members) and other members of society can engage in political activity, advocacy, protest, or dissent that is lawful and that is their constitutional right. Thus, it is in the interest of our constitutional democracy that such activities be excluded from the Bill.

The overbroad definition will enable the State to gather intelligence on anyone it deems a “threat to national security” including religious institutions, civil society, activists, concerned citizens, and journalists without ever telling them.

The Bill does not define “threat”.

Insert definition and define as “impending danger of serious harm to the Republic as one, sovereign, democratic state founded on the values set out in section 1 of the Constitution”.

Security Competence Test

“administering a vetting investigation to determine the security competence of a person or institution and if such person or institution is suitable to access classified information or critical infrastructure of the State or is viewed as vulnerable to blackmail, undue influence or manipulation or security compromise or is a person or institution of a national security interest in terms of Section 4(2)(a)(i)”

The disjunctive reading of the new definition of “security competence test” makes the definition overbroad. Almost any person is vulnerable to blackmail, undue influence and manipulation. However, that does not mean that they are a threat to national security and that the State should be able to perform a security competency test on them. That would be irrational.

Security competence tests should be limited to only those individuals with access to classified information and critical infrastructure of the State.

“administering a vetting investigation to determine the security competence of a person to determine whether such person is suitable to access classified information or critical infrastructure of the State. Such vetting investigation should consider whether the person is a security compromise because they are seen as vulnerable to blackmail, undue influence or manipulation”.

Domestic Intelligence

“intelligence on any internal threat or opportunity or potential opportunity or threat or potential threat to national security”

“intelligence on any internal threat to national security”.

Foreign Intelligence

“intelligence on any external threat or opportunity or potential opportunity or threat or potential threat to national security”

“intelligence on any external threat to national security”.

Intelligence Gathering

“the acquiring and processing of relevant and reliable information into intelligence products related to any domestic or foreign opportunity or potential opportunity or threat or potential threat to national security or threats to the advancement or protection of national security”

“the acquiring and processing of relevant and reliable information into intelligence products related to any domestic or foreign threats to national security”.

Apprehension

The Bill makes provision for the SSA to apprehend individuals. Submissions made in various public hearings raised a point regarding the potential misunderstanding of the term apprehend by the general public, often equating it with an arrest, which is not accurate. The Bill makes provision for suspects to be apprehended in a prescribed manner before being handed over to the relevant law enforcement agencies.

However, concerns were raised about the constitutional implications of apprehension versus arrest, particularly regarding the rights afforded to individuals under Section 35 of the Constitution. This section guarantees rights such as the right to remain silent, access to bail, and a fair trial, but it applies specifically to those who are arrested, and not apprehended. As such, questions were raised about the prescribed manner of apprehension and the rights individuals have in such circumstances.

PROVISION IN THE BILL	PROPOSED PROVISION
Amendment of section 2 of Act 39 of 1994, as amended by section 2 of Act 37 of 1998, section 2 of Act 67 of 2002, and section 2 of Act 11 of 2013
(v) impede and apprehend members suspected of contravention of this Act and related regulations and hand them to the relevant law enforcement agencies.	Remove this provision

Security Vetting

A key recommendation from the HLRP) was the requirement of an urgent policy review of the Agency's security vetting mandate. The authors of the HLRP had thought that this review would evaluate the scope and division of responsibilities between employing departments and the SSA concerning vetting procedures. The Panel's recommendations emphasised the need for a nuanced approach to security vetting, one that balances legal obligations with policy considerations. However, the proposed provisions in the Bill widen the scope of vetting. Whilst the provisions of security vetting are foundational for national security, the proposed provisions have inherent risks.

Furthermore, the HLRP recommended that security vetting be restricted to individuals working with classified information, as existing backlogs already existed for vetting unnecessary individuals. The inclusion of provisions for vetting investigations on persons or institutions of national security interest raised concerns, as it seemed to conflate vetting with criminal investigations or intelligence assessments which it is not.

New provisions in the Bill make it compulsory for the South African Intelligence Agency to conduct a vetting investigation to determine the security competence of persons or institutions suspected of being threats or potential threats to national security.

Arguments were made that the proposed provisions in the Bill, read with the wide definitions of national security, threat to national security, and person or institution of national security interest, provide that the effect of these clauses could be that even religious institutions (and their leaders, employees, and members) are seen as persons or institutions of national security interest and threats to national security. This will subject them to compulsory secret and invasive vetting investigations to determine their security competence and whether to issue them with a security clearance certificate with the consequence of a denial of a security clearance certificate being unclear.

Careful consideration ought to be given to the recourse that applicants have if the security clearance is denied. Specifically, determining sufficient safeguards are in place to ensure fair recourse. The below recommendations were made:

PROVISION IN THE BILL	PROPOSED DEFINITIONS
Amendment of section 2A of Act 39 of 1994, as inserted by section 3 of Act 67 of 2002 and amended by section 2 of Act 52 of 2003 and section 3 of Act 11 of 2013
Clause 2(b) amends section 2(b) of the Act to expand the functions of the South African Intelligence Agency to include “(a) be to fulfil national counter-intelligence responsibilities and for this purpose to conduct and coordinate counter-intelligence and to gather, correlate, evaluate, analyse information regarding counterintelligence and domestic intelligence to – (xi) conduct security competence tests on categories of persons or institutions referred to in section 2A of the Act to issue or decline to issue a security clearance certificate”.	Amend to clause 2(b) to read: “Conduct security competence test on categories of applicants and employees of organs of the State and Departments of State to issue or decline to issue a security clearance certificate”.
Clause 3(a) amends section 2A of the Act to read: ‘‘(1) The relevant members of the National Intelligence Structures must conduct a vetting investigation in the prescribed manner to determine the security competence of a person, if such a person – (a) falls within a prescribed category of persons or institutions who must have a security clearance – (iv) if a person or institution of national security interest in terms of Section 4(2)(a)(i) of the Act”.	Amend to clause 3(b) – a reference to section 4(2)(a)(i) – to read: “(b) is seen as a threat or potential threat to the national security of the Republic.”

PROVISION IN THE BILL

PROPOSED DEFINITIONS

Amendment of section 2A of Act 39 of 1994, as inserted by section 3 of Act 67 of 2002 and amended by section 2 of Act 52 of 2003 and section 3 of Act 11 of 2013

Clause 2(b) amends section 2(b) of the Act to expand the functions of the South African Intelligence Agency to include “(a) be to fulfil national counter-intelligence responsibilities and for this purpose to conduct and coordinate counter-intelligence and to gather, correlate, evaluate, analyse information regarding counterintelligence and domestic intelligence to – (xi) conduct security competence tests on categories of persons or institutions referred to in section 2A of the Act to issue or decline to issue a security clearance certificate”.

Amend to clause 2(b) to read: “Conduct security competence test on categories of applicants and employees of organs of the State and Departments of State to issue or decline to issue a security clearance certificate”.

Clause 3(a) amends section 2A of the Act to read: ‘‘(1) The relevant members of the National Intelligence Structures must conduct a vetting investigation in the prescribed manner to determine the security competence of a person, if such a person – (a) falls within a prescribed category of persons or institutions who must have a security clearance – (iv) if a person or institution of national security interest in terms of Section 4(2)(a)(i) of the Act”.

Amend to clause 3(b) – a reference to section 4(2)(a)(i) – to read: “(b) is seen as a threat or potential threat to the national security of the Republic.”

Bulk Interception

Bulk interception refers to the mass collection and analysis of data from various communications sources by intelligence services. This practice, in the South African context, enables intelligence services to monitor and analyse foreign signals.

While proponents argue that bulk interception is necessary for national security and counterterrorism efforts, critics raised significant concerns about its potential for abuse and infringement on privacy rights. The indiscriminate nature of bulk surveillance means that it can capture data from innocent individuals, undermining the principles of privacy, freedom of speech, and due process.

Participants outlined two main concerns with provisions on bulk interception. First, the lack of legal provisions and secondly, inadequate safeguards in the Bill. Participants highlighted that the Constitutional Court judgement set out safeguards that ought to be included when making new provisions. The safeguards were as follows:

safeguard the independence of the specially designated judge issuing interception warrants (for instance, by having such a judge appointed by the judiciary instead of the minister);
compensate for the fact that one cannot defend oneself when state intelligence agencies apply for a surveillance warrant, since that warrant is sought in secret;
create special protections when the surveillance subject is a lawyer or a journalist (two professions where confidentiality is key to upholding democracy);
better regulate the storage and deletion of the intercepted communications and data; and
compel intelligence services to notify all surveillance targets – after the fact – that they were intercepted (as long as that notification doesn’t jeopardise any ongoing investigation)

Independence of the Inspector-General of Intelligence

Submissions made during public hearings regarding the IGI often revolved around the critical issue of independence. Central to these discussions was the concern that the IGI must remain entirely autonomous and not be influenced or beholden to any particular intelligence service.

Participants argued that this independence was crucial for the effective functioning of the inspectorate. Arguments were put forward that safeguards were needed to prevent any undue influence from intelligence agencies and the Executive Authority, advocating for robust measures to guarantee the IGI autonomy in carrying out their duties effectively.

Another key aspect highlighted during hearings was the scope of the Inspector-General's authority over administrative functions within their office. Participants stressed the necessity for the Inspector-General to have comprehensive superintendence over all administrative aspects, ranging from staffing decisions to procedural protocols, and that the Minister’s role ought to be curtailed in this regard. The latter ensures that the office operates efficiently and transparently, free from internal biases or bureaucratic impediments. Furthermore, granting the IGI’s overall superintendence over administrative functions enhances the effectiveness of intelligence oversight mechanisms. Furthermore, submissions underscored the critical importance of allocating a dedicated budget to the IGI to adequately support the functions of the office. Input emphasised the necessity of ring-fencing the funds to ensure that they are exclusively earmarked for the IGI's use.

Furthermore, calls were made for the Inspector-General's recommendations to carry binding authority, ensuring that their findings and directives are not merely advisory but have tangible legal and operational consequences. It was argued that binding recommendations strengthen the accountability of intelligence agencies and provide clear guidance for remedial actions, thereby enhancing the overall effectiveness of intelligence oversight mechanisms in safeguarding national security while upholding civil liberties and democratic principles. A repeated call was made for all 20 submissions put forward by the IGI in his submission to be included in the Bill.

Independence of the National Intelligence Coordinating Committee

The inputs garnered from public hearings underscored the critical need for NICOC to function independently and efficiently. Participants emphasised the necessity of ensuring that NICOC was provided with unrestricted access to intelligence vital for its coordination function. Participants stressed the importance of explicitly mandating NICOC's autonomy in accessing such intelligence, highlighting its significance in fostering transparency and facilitating effective coordination across intelligence agencies.

Furthermore, participants highlighted the essential requirement of allocating sufficient, ring-fenced budgets to NICOC. Such an allocation would equip NICOC with the necessary financial resources to fulfil its functions effectively, without encountering undue constraints or external pressures.

Moreover, the comments from the public hearings underscored the significance of preserving NICOC's independence in decision-making processes, particularly regarding personnel appointments and budget management. Participants emphasised the importance of granting NICOC full control over its budget and staffing decisions to uphold its autonomy and effectiveness. By prioritising NICOC's independence, the proposed Bill would strengthen its capacity as a crucial coordinating and oversight body within the intelligence community, aligning with the feedback received during the public consultation process.

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5.7 Other matters emanating from public hearings

Many submissions were made relating to the triple threat of poverty, unemployment, and inequality. Highlight the serious challenges that many citizens battle daily. All matters raised that were outside of the ambit of the Bill were consolidated and referred to the relevant Committees.

During the public hearings, participants strongly advocated for the removal of torture clauses within relevant legislation, highlighting the need to uphold human rights and prevent any form of abusive practices. They emphasised that such clauses undermine fundamental rights and dignity, and their removal is crucial for ensuring that intelligence activities adhere to legal and ethical standards. Furthermore, participants voiced concerns regarding the involvement of former National Intelligence Service (NIS) members in intelligence services, citing potential conflicts of interest and biases. They argued for the removal of such individuals from positions within the services. Additionally, participants called for greater inclusivity in employment practices within intelligence agencies, urging for consideration of women and people living with disabilities. They emphasised the importance of diversity and representation within intelligence organisations to foster a more inclusive and equitable work environment. These inputs underscored the significance of upholding human rights, impartiality, and diversity within intelligence operations, shaping discussions on legislative reforms during the public hearings.

PART C: NATIONAL HEARINGS (ORAL SUBMISSIONS) HELD FROM 20 TO 21 FEBRUARY 2024

1. INTRODUCTION

Through written submissions received between 15 December 2023 and 31 January 2024, the Committee received several requests to make oral submissions to elaborate on issues raised in the written submissions. Informed by these requests and its desire to engage with critical stakeholders within the sector the Committee moved to hold national hearings at Parliament from 20 to 21 February 2024 to receive oral submissions.

On 20 February 2024, the Committee received submissions from the FW de Klerk Foundation, the Association of Christian Media, AfriForum, and the Congress of South African Trade Unions (COSATU). On 21 February 2024, the Committee received submissions from Prof (Dr) S Dintwe, Freedom of Religion South Africa (FOR SA), Dear South Africa, Intel Watch, and Prof Jane Duncan.

This report encompasses the oral submissions made over the course of both days of the hearings. It will provide a detailed account of the proceedings and insights shared during each session.

2. OVERVIEW OF THE PROCEEDINGS

The Chairperson, Hon JJ Maake, opened and welcomed all present at the respective hearings. He outlined that the purpose of the national hearings was to receive oral submissions on the Bill. The chairperson explained that each stakeholder would be granted an opportunity to submit and that Members would ask questions of clarity only because deliberations on the submissions would take place at a later stage.

3. ORAL SUBMISSIONS MADE AT NATIONAL HEARINGS

3.1 FW De Klerk Foundation

The FW de Klerk Foundation’s (the Foundation) submission focused on three main issues namely, definitions, compulsory vetting, and the disregard for Constitutional Court judgment regarding bulk interception. The Foundation provided the below input on each area of concern.

Definitions

Clause 1(m) of the Bill defines national security as encompassing the capabilities, measures, and activities of the State to address threats, potential threats, opportunities, and the security of the Republic and its people, both within and outside the Republic, as outlined in section 198 of the Constitution.

Additionally, Clause 1(o) of the Bill defines opportunity or potential opportunity as any capability, measure, or activity employed to pursue and advance national security, subject to the Bill of Rights and constitutional principles.

However, when these definitions are applied, a circular reference emerges. The definition of national security refers back to itself, incorporating the concept of national security within its definition. Similarly, the definition of opportunity or potential opportunity refers back to itself, including the concept of opportunity within its definition. This circularity presents a challenge in achieving clear and distinct definitions within the legislation. The below recommendations were presented:

Definition in the Bill	Problems	Proposed Definition
“person or institution of national security interest”	s198 of the Constitution: vague concepts and open to abuse. “threat to national security”: fails to exclude: lawful political activity, advocacy, protest, or dissent. This is overbroad, open to abuse	Amend the definition to read: “any person or institution suspected of espionage” The Bill defines “espionage” as “the unlawful and intentional communication, delivery, or making available of classified information directly or indirectly benefit a foreign state, person or institution.”
“national security” and “opportunity or potential opportunity”	unworkable and open to abuse due to circularity. • “potential” threat or opportunity is redundant • no parameters • Arbitrary, irrational i.e. failure to comply with rule of law, failure of s36 justification analysis	Delete “opportunity or potential opportunity” from Bill entirely. 2. Amend the definition of “national security” to read: “the protection of the Republic's interests, citizens, institutions, and sovereignty from internal and external threats, as governed by the principles set out in section 198 of the Constitution”
“Domestic intelligence”	Relies on the definition of: “threat or opportunity or potential opportunity or threat or potential threat to national security”.	Amend the definition to read: “intelligence on any internal threat to national security”.
“Foreign intelligence”	Amend the definition to read: “intelligence on any external threat to national security”.
“Intelligence gathering”	Amend the definition to read: “the acquiring and processing of relevant and reliable information into intelligence products related to any domestic or foreign threats to national security”.
“national security intelligence”	Relies on the definition of: “threat or opportunity or potential opportunity or threat or potential threat to national security”.	Amend the definition to read: “intelligence which relates to or may be relevant to the assessment of any threat to the national security of the Republic in any field”
“Security competency test”	Disjunctive reading, resulting in clause failure to achieve its purpose, resulting in an arbitrary infringement of the affected constitutional rights – contrary to rule of law and section 36.	Amend the definition to read: “administering a vetting investigation to determine the security competence of a person to determine whether such a person is suitable to access classified information or critical infrastructure of the State. Such vetting investigation should consider whether the person is a security compromise because they are seen as vulnerable to blackmail, undue influence, or manipulation”.

Definition in the Bill

Problems

Proposed Definition

“person or institution of national security interest”

s198 of the Constitution: vague concepts and open to abuse.

“threat to national security”: fails to exclude: lawful political activity, advocacy, protest, or dissent. This is overbroad, open to abuse

Amend the definition to read:

“any person or institution suspected of espionage”

The Bill defines “espionage” as “the unlawful and intentional communication, delivery, or making available of classified information directly or indirectly benefit a foreign state, person or

institution.”

“national security” and

“opportunity or potential

opportunity”

unworkable and open to abuse due to circularity.

• “potential” threat or opportunity is redundant

• no parameters

• Arbitrary, irrational i.e. failure to comply with

rule of law, failure of s36 justification analysis

Delete “opportunity or potential opportunity” from Bill entirely.

2. Amend the definition of “national security” to read:

“the protection of the Republic's interests, citizens, institutions, and sovereignty from internal and external threats, as governed by the principles set out in section 198 of the Constitution”

“Domestic

intelligence”

Relies on the

definition of: “threat or

opportunity or potential

opportunity or threat or

potential threat to

national security”.

Amend the definition to read:

“intelligence on any internal threat to national security”.

“Foreign

intelligence”

Amend the definition to read:

“intelligence on any external threat to national security”.

“Intelligence

gathering”

Amend the definition to read:

“the acquiring and processing of relevant and reliable information into intelligence products related to any domestic or foreign threats to national security”.

“national security

intelligence”

Relies on the

definition of: “threat or

opportunity or potential

opportunity or threat or

potential threat to

national security”.

Amend the definition to read:

“intelligence which relates to or may be relevant to the assessment of any threat to the national security of the Republic in any field”

“Security competency test”

Disjunctive reading,

resulting in clause failure

to achieve its purpose,

resulting in an arbitrary

infringement of the

affected constitutional

rights – contrary to rule

of law and section 36.

Amend the definition to read:

“administering a vetting investigation to determine the security competence of a person to determine whether such a person is suitable to access classified information or critical infrastructure of the State. Such vetting investigation should consider whether the person is a security compromise because they are seen as vulnerable to blackmail, undue influence, or manipulation”.

Vetting

Concerns were raised regarding the necessity of mandating vetting for institutions identified as being of national security interest, as the criterion for such institutions was unclear and this provision could be abused. Furthermore, the Foundation drew attention to inaccuracies, detailed below in the Bill's referencing of sections.

The Agency’s functions expanded	Compulsory vetting Agency’s functions expanded investigations	Any (potential) threat to national Security
Clause 2(b) expands the functions of the South African Intelligence Agency to include: “(a) be to fulfil national counter-intelligence responsibilities and for this purpose to conduct and coordinate counterintelligence and to gather, correlate, evaluate, analyse information regarding counterintelligence and domestic intelligence to—(xi) conduct security competence test on categories of persons or institutions referred to in section 2A of the Act to issue or decline to issue a security clearance certificate”	Clause 3(a) amends section 2A of the Act referred to in clause 2(b), to read: ‘‘(1) The relevant members of the National Intelligence Structures must conduct a vetting investigation in the prescribed manner to determine the security competence of a person, if such a person— (a) falls within a prescribed category of persons or institutions who must have a security clearance— (iv) if a person or the institution is of national security interest in terms of Section 4(2)(a)(i) of the Act”.	Section 4(2)(a)(i) of the National Strategic Intelligence Act, 1994 reads that: “(2) The functions of Nicoc shall be (a) to coordinate the intelligence supplied by the members of the National Intelligence Structures to Nicoc and interpret such intelligence for use by the State and the Cabinet for - (i) the detection and identification of any threat or potential threat to the national security of the Republic

The Agency’s functions expanded

Compulsory vetting Agency’s functions expanded investigations

Any (potential) threat to national Security

Clause 2(b) expands the functions of the South African Intelligence Agency to include:

“(a) be to fulfil national counter-intelligence responsibilities and for this purpose to conduct and coordinate counterintelligence and to gather, correlate, evaluate, analyse information regarding counterintelligence and domestic

intelligence to—(xi) conduct security competence test on categories of persons or institutions referred to in section 2A of the Act to issue or decline to issue a security clearance certificate”

Clause 3(a) amends section 2A of the Act referred to in clause 2(b), to read:

‘‘(1) The relevant members of the National Intelligence Structures must conduct a vetting investigation in the prescribed manner to determine the security competence of a person, if such a person—

(a) falls within a prescribed category of persons or institutions who must have a security clearance— (iv) if a person or the institution is of national security interest in terms of Section 4(2)(a)(i) of the Act”.

Section 4(2)(a)(i) of the National Strategic

Intelligence Act, 1994 reads that:

“(2) The functions of Nicoc shall be (a) to coordinate the intelligence supplied by the members of the National Intelligence Structures to Nicoc and interpret such intelligence for use by the State and the Cabinet for - (i) the detection and identification of any threat or potential threat to the national security of the Republic

Failure to comply with the Constitutional Court ruling

The Foundation referred the Committee to the Amabhungane Centre for Investigative Journalism NPC and Another v Minister of Justice and Correctional Services and Others 2021 case where the Constitutional Court found that the Regulation of Interception Communications and Provisions Communication and Provision of Communication- Related Information Act, 70 of 2002 (RICA) to be unlawful since safeguards were not included. The proposed Bill has the same problem, which renders it unlawful at first glance. As such the Bill needs to allow for notification following surveillance.

3.2 Association of Christian Media

The Association of Christian Media's submission to the Committee underscored several significant concerns regarding the proposed Bill. Foremost among these concerns was the perceived vagueness of definitions, which were deemed overly broad and mandated state intelligence agencies to engage in the vetting of religious organisations and NGOs. This ambiguity raised apprehensions about potential overreach and infringement upon freedom of expression and association. Additionally, the Association highlighted the Bill's provision for the state to request information from other governmental departments, cautioning that such powers should be more clearly defined and balanced to prevent misuse or undue intrusion into private matters. Furthermore, the Association advocated for the strengthening of the powers of the IGI to ensure effective oversight and accountability.

AfriForum

AfriForum stated concerns regarding several critical aspects of the Bill. Chief among these was the expansion of vetting powers, mandating security vetting of entities specified in the Bill. This sparked significant unease within civil society due to its perceived implications for democratic values, human rights, and societal advancement. Additionally, AfriForum highlighted the ambiguity surrounding the definition of person or institution of a national security interest arguing that such vagueness could enable potential abuse.

The organisation also emphasised the fundamental human rights to privacy and freedom of association, expressing apprehension over perceived threats posed by the provisions in the Bill. Particularly worrisome was the possibility of a surveillance state emerging, driven by extensive vetting procedures for private entities.

3.4 COSATU

COSATU was concerned about the constitutionality and impact of the Bill and its unintended consequences. Furthermore, there was concern that the Bill did not enhance the oversight role of the IGI and was worryingly vague regarding checks and balances on bulk interception.

Several sections of the Bill followed the HLRP recommendations and were largely clear. These included separating domestic and foreign intelligence services and formalising the National Intelligence Academy. These provisions were primarily administrative, sensible, and well-supported. However, the Bill failed to fully address the difficulties posed by recent abuses of the functions of state security and intelligence services.

Ambiguous definitions of threats to national security may present difficulties for SAPS in their investigations, the National Prosecuting Authority (NPA) in prosecutions, and courts in convictions. Such ambiguous definitions are prone to misinterpretation and may generate confusion. Some definitions of national security threats still need to be tightened, cleaned up and clarified.

COSATU recommended that definitions in section 1 (t)(a) and (b) be significantly tightened definitions and vague concepts deleted. Regarding the IGI, COSATU made the following recommendations:

incorporate the IGI’s proposed amendments to enhance the Office of the OIGI;
revise the Bill to integrate recommendations from the HLRP aimed at rectifying legislative shortcomings that undermine the OIGI's effectiveness and;
strengthen the OIGI's role, statutory authority, organisational autonomy, oversight functions, and accountability mechanisms, empowering it to issue binding findings to intelligence services.

COSATU notes that the Bill provides extensive powers for intelligence services to undertake bulk interception. Whilst a role for judicial authorisation has been provided there were few checks and balances beyond that. As such COSATU makes the following recommendation:

provide greater motivation for applications;
institute continuous mechanisms for reporting to oversight authorities for such bulk monitoring and;
limit such bulk monitoring to specific periods or instances.

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3.5 Prof (Dr) S Dintwe (Former IGI)

In his oral submission, the former IGI, Prof (Dr) S Dintwe, focused on achieving and maintaining the independence of civilian oversight, primarily discussing oversight-related matters. He emphasised the need to define the form and nature of the inspectorate to solve existing problems, suggesting the utilisation of the Public Service Act for further classification. While acknowledging the sufficiency of legislative provisions regarding the establishment of the OIGI, he proposed strengthening measures concerning the non-implementation of IGI recommendations by introducing the term corrective measures for enforceability and legal recourse.

Prof Dintwe also addressed resource allocation issues, advocating for determining resources through an Act of Parliament akin to models such as the Public Protector and the Independent Police Investigate Directorate (IPID). Additionally, he suggested considering a seven-year tenure for IGIs to ensure work continuity, given that significant time during the initial two years was often spent familiarising with responsibilities. Furthermore, he proposed granting Certificates of Activities similar status as audit reports by the Auditor General of South Africa (AGSA), contingent upon any constitutional considerations.

3.6 Freedom of Religion South Africa (FOR SA)

FOR SA was interested in the Bill due to its direct impact on the religious sector, which it represents. The organisation was concerned that the current wording of the Bill could potentially categorise religious institutions, their leaders, employees, and members as being of national security interest, perceived as threats, subjected to security tests, and denied security clearance certificates.

FOR SA made the following recommendations:

insert definition of threat and define as “impending danger of serious harm to the Republic as one, sovereign, democratic state founded on the values set out in section 1 of the Constitution”.
delete the definition of (and all references to) opportunity or potential opportunity from the Bill.
redefine national security as the protection of the Republic's interests, citizens, institutions, and sovereignty from internal and external threats, as governed by the principles set out in section 198 of the Constitution.
redefine person or institution of national security interest as any person or institution suspected of espionage or engaged in activities that are defined as a threat to national security in terms of this Act.
consolidate clauses 1(t)(a) and (b) and redefine them as the resolve of South Africans to live as equals, to live in peace and harmony, to be free from fear and want, and to seek a better life.
redefine threat to national security as subversion and undue influence by hostile interests on government processes, policies and the sovereignty of the State and its organs but does not include lawful political activity, advocacy, protest or dissent.
remove all references to opportunity or potential opportunity.
redefine the security competence test as administering a vetting investigation to determine the security competence of a person to determine whether such person is suitable to access classified information or critical infrastructure of the State. Such vetting investigation should consider whether the person is a security compromise because they are seen as vulnerable to blackmail, undue influence or manipulation.
amend clause 2(b) to read: Conduct security competence test on categories of applicants and employees of organs of the State and Departments of State to issue or decline to issue a security clearance certificate. (I.e. persons with access to classified information and/or critical infrastructure). Amend to clause 3(b) – a reference to section 4(2)(a)(i) – to read: (b) is seen as a threat or potential threat to the national security of the Republic.
provide for post-surveillance notification and legal remedies to address rights violations, including unlawful investigations.

3.7 IntelWatch

IntelWatch was of the view that other than splitting the State Security Agency (SSA) into two services, the Bill did not do enough to address the findings of several investigative bodies, including the HLRP, the Judicial Commission of Inquiry into Allegations of State Capture, the 2008 Ministerial Review Commission on Intelligence (the Matthews Commission), the 2006 Report of the Task Team on the Review of Intelligence-Related Legislation, and the Report of the expert panel into the July 2021 civil unrest.

The Bill provided highly problematic definitions for a number of core constructs that were central to the Bill's interpretation once enacted. These included the definitions of national security, opportunity or potential opportunity, and threat to national security.

These definitions were criticised for being vague, overly broad, and often relying on circular reasoning, which detracted from their meaningfulness. The net result was that various aspects of the Bill that relied on the meaning of these definitions were open to unacceptably wide interpretations by the state intelligence services and entities. Such potential interpretations left room for a wide scope of abuses by the services and entities. IntelWatch provided the following recommendations:

concepts of opportunity and potential opportunity, along with their definition in the Bill, must be discarded in their entirety and all references removed from the Bill. Likewise, references to potential threats must also be removed entirely from the Bill;
concepts of lawful political activity, advocacy, protest, and dissent need to be clearly defined, and the definition of threat to national security should make explicit that these activities are not threats to national security;
In the past, a submission was made outlining the requirements for the Evaluation Committee to be established and fully functioning;
JSCI to have equal representation from all political parties and access to all classified documents deemed necessary;
the JSC to be empowered, in legislation, to initiate investigations and bring charges.
the IGI ought to be financially independent of services, with control over its staff, structure, and office;
the IGI should be empowered to issue binding recommendations without requiring concurrence from the services; and
NICOC and the Office of the Coordinator ought to be provided with the required financial independence, control over staff appointments and office structure, and access to all classified material.

3.8 Prof J Duncan

Prof Duncan, in her submission, noted that the disestablishment of the SSA and the establishment of the South African Intelligence Service and South African Intelligence Agency were appropriate, although a prior architectural review should have been conducted.

Her concerns with the definitions were regarding the potential misuse of broad definitions within the Bill, prompting calls for narrowing down these definitions. Terms such as domestic intelligence, foreign intelligence, intelligence gathering, national security, national security intelligence, opportunity or potential opportunity, and threat to national security were deemed overly broad, and, as such, Prof Duncan advocated for more focused definitions and mandates.

The Bill outlined the responsibilities of the new Agency and the Service for collecting and analysing domestic and foreign intelligence, respectively, concerning threats, opportunities, potential opportunities, or potential threats to national security. However, these definitions were criticised as repetitive and overly broad, potentially leading to overlaps with the mandates of other government entities. Concerns were raised about the normalisation of intelligence activities in everyday government functions, posing threats to democracy.

Prof Duncan highlighted the fact that the HLRP had recommended vetting to be restricted to individuals working with classified documents, as existing backlogs already existed for vetting unnecessary individuals. The inclusion of provisions for vetting investigations on persons or institutions of national security interest raised concerns, as it seemed to conflate vetting with criminal investigations or intelligence assessments.

The National Communication Centre (NCC) had been a subject of controversy in the past, with reports of domestic surveillance on politicians, journalists, and businesspeople. Despite the 2021 Constitutional Court ruling mandating a law authorising bulk surveillance, the Bill lacked clear, precise terms outlining the functions and procedures of bulk interception. Although the Bill required permission from a retired judge before conducting bulk surveillance, the appointment process lacked clarity on the judge's basis for decision-making and raised concerns about political independence.

Section 12 of the Intelligence Services Act empowered the Minister to oversee the functioning of the Agency, but this provision was replaced in the Bill with Section 23, which expanded the Minister's powers. It was suggested that this provision be amended to confine the Minister's role to Executive oversight, with no involvement in operational matters.

Additionally, NICOC required more independent organisational status, allowing the coordinator to appoint members and determine the organisational structure with minimal Ministerial involvement.Top of Form

4. ANALYSIS OF SUBMISSIONS

Overall, comprehensive revisions were deemed necessary to address the identified shortcomings and strengthen the Bill’s adherence to constitutional principles, transparency, and accountability within the intelligence sector. By incorporating these recommendations, the legislation could better safeguard democratic values and protect citizens' rights while effectively addressing national security concerns.

Upon analysis, there are three main issues of concern which were recurrent namely, definitions, compulsory vetting, and compliance with the Constitutional Court ruling on bulk interception.

Definitions: These were deemed to be circular and overly broad particularly concerning were the definitions of national security, opportunity or potential opportunity, and related terms. These circularities pose challenges to clear and distinct definitions, essential for effective legislation.

Compulsory Vetting: Concerns were raised regarding the necessity and criteria for mandating vetting for institutions identified as national security interests. The lack of clarity in these provisions could lead to abuse and infringements on constitutional rights.

Compliance with Constitutional Court Ruling: Shortcomings in the Bill concerning compliance with the Constitutional Court ruling on bulk interception were identified which included failure to include post-surveillance notification renders the proposed legislation potentially unlawful.

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PART D: WRITTEN SUBMISSIONS RECEIVED ON THE GENERAL INTELLIGENCE LAWS AMENDMENT BILL BETWEEN 15 DECEMBER 2023 AND 31 JANUARY 2024

INTRODUCTION

Parliament advertised the Bill for public comment in national and community newspapers in 11 official languages. The public was invited to submit written submissions from 15 December 2023 to 31 January 2024. During this period, several interested parties contacted the Committee requesting an extension of the deadline. Specifically, 13 written submissions were received requesting an extension of the deadline. The Committee therefore acceded to the request and extended the deadline for written submissions to 15 February 2024. The Committee received a total of 23 502 written submissions on the Bill during the prescribed period.

This section of the Report outlines the process of advertising the Bill and provides a breakdown of the various categories of written submissions received. The report provides a clause-by-clause summary of the most pertinent issues raised in written submissions as well as additional matters raised not pertaining to a specific clause.

ADVERTISING THE BILL FOR WRITTEN COMMENT

The Committee advertised the Bill for public comment on 15 December 2023 in the below-mentioned newspapers as well as on the Parliament website and Parliament’s social media platforms. The Table below reflects advertisements of the Bill for public comment in print media publications.

Item	Newspapers: 11 official languages
Placement of Adverts	National Newspapers
Afrikaans	Die Burger – Afrikaans
English	City Press –English
	Local Newspapers
SeTswana	Business Ink-Setswana
isiXhosa	Isolezwe –isiXhosa
isiZulu	Isolezwe- isiZulu
siSwati	Coal City-siSwati
sePedi	Nthavhela News
isiNdebele	Thembisile News-isiNdebele
tshiVenda	Ngoho News-tshiVenda
xiTsonga	Bushbuckridge News-xiTsonga
seSotho	Free State Sun

PUBLIC SUBMISSIONS RECEIVED BY THE COMMITTEE

The Committee received a total of 23 502 written submissions on the Bill during the prescribed period for public comment. The submissions can be viewed in two categories. Firstly, the vast majority of submissions (23 326 or 99.26%) were submitted via the platform Dear South Africa (DearSA). In addition to these, a further 176 submissions were made to the Committee, which contained at least 26 substantive submissions. The following sections will provide an overview and then a clause-by clause- summary of the input received.

Submissions via the Dear South Africa Platform

DearSA is a non-partisan online platform to assist the government by facilitating meaningful public participation in policy formation or decision-making processes at municipal, provincial, and national levels. Through its online platform, members of the public submit input to the Committee as to whether they are in support of the Bill and further comments.

The methodology of DearSA is such that it allows the participant to select whether he/she supports the Bill. If a participant selected that the Bill is not supported, the platform would then generates ‘auto-generated responses’ from which participants may select. For this specific Bill, the following responses were generated:

mass surveillance of all South Africans' communications.
my right to privacy.
other
no concern

In terms of the above auto-generated responses, the platform seems to be prescriptive as it leads participants in their responses, although it allows for further comments to be submitted as well. Nonetheless, the majority of submissions made use of a prescribed ‘concern’, with limited substantive input on the clauses of the Bill.

The Committee received 23 326 submissions through DearSA over the period 15 December 2023 to 15 February 2024. The majority (39%) of submissions were from the Gauteng Province, 28% from the Western Cape Province, and 10% from the Eastern Cape Province. Of the submissions received:

22 736 did not support the Bill
401 did not fully support the Bill
189 supported the Bill.

The main reason for not supporting the Bill related to ‘my right to privacy’ (11 817) followed by concerns around state security vetting (See Chart 1). Of the 22 736 submissions not in support of the Bill, 875 (3.8%) opted not to use the auto-generated responses and submitted another response. However, most of these responses did not refer to specific clauses in the Bill or make specific recommendations but rather spoke to the overall sentiment.

The 23 326 submissions submitted via DearSA were received individually on Parliament’s email address for submissions to the Bill. Following the closing date, a comprehensive report from DearSA was submitted to the Committee, containing all input received. This report was analysed for relevant input into the Bill, with the following main points relevant to the Committee’s consideration:

the Committee notes the general opposition to the Bill in its current form as per the statistics noted above.
the auto-generated responses most cited as problematic in submissions are contained in the clause-by-clause analysis in this report.
substantive submissions with relevant input to specific sections of the Bill are referenced in the clause-by-clause analysis in this report, specifically the section dealing with ‘other matters raised in written submissions’.

Chart 1: DearSA reasons for not supporting the Bill

Written submissions received (excluding via DearSA)

The Committee received 176 submissions on the Bill that were not submitted via the DearSA platform. The Table below provides a breakdown of the 176 submissions.

Table 1: Categories of written submissions received (excluding via Dear South Africa)

Requests for extension of deadline	13
Full substantive submissions attached	26
Repeat submissions by faith-based institutions on definitions of the Bill	30
Email empty/undelivered; submission on the wrong Bill or unrelated to the Bill	25
Opposition to the Bill without substantive input (Including broad reference to Right to Privacy and Freedom of Expression/Religion)	70
Support of the Bill without substantive input	2
Partially substantive inputs	10
Total written submissions (excl via DearSA)	176

For further deliberations on the Bill, three of the categories above have specific relevance for consideration. First, the ‘repeat submission by faith-based institutions on the definitions of the Bill’ requires considerations. While these parties submitted a standard form with input, it raises questions on the definitions that warrant deliberation. Second, partially substantive submissions require consideration. These submissions were not necessarily substantive in nature but included reference to a specific clause of the Bill. Third, the 26 substantive submissions require careful consideration as they raise specific and often clause-by-clause analysis of the Bill. Many of these submissions are technical in nature and warrant further legal consideration. The table below notes the 26 substantive submissions by individuals and organisations. The table also indicates which of these made further oral presentations, largely based on their written submissions (See Part A of this report).

Table 2: Full substantive written submissions submitted

No	Name/Institution	Oral presentation
	Freedom Under Law and the Ahmed Kathrada Foundation	No
	Jane Duncan	Yes
	Malan Vorster	No
	Ms Michelle Phillips (Transnet)	No
	AmaBhungane	No
	FW de Klerk Foundation	Yes
	Free Market Foundation	No
	Adam Phatlhane Bakgatla Ba Ga Lekhuleni Traditional House	No
	Intel Watch	Yes
	Helen Suzman Foundation	No
	Afriforum	No
	Anonymous (requested not to be identified publicly)	No
	Anton Harper - Campaign for Free Expression	No
	OUTA	No
	Razia Rasdien	No
	Association of Muslim Accountants and Lawyers of SA	No
	Privacy International	No
	SA Catholic Bishops Conference PLO	No
	Sonke Gender Justice	No
	FOR SA	Yes
	Louise Bick	No
	Phillip Rosenthal ACM	Yes
	NPO Working Group	No
	Anthoni van Nieuwkerk	No
	Nozuko Pikoli (State Security Agency: Intelligence Council on Conditions of Service)	No
	Department of Defence (Defence Legal Services)	No

Methodology of the analysis

The following sections of the report provide a clause-by-clause summary based on written submissions. Two approaches were followed in terms of categorising the submissions. First, where submissions provided input into a specific clause of the Bill, such input was aligned with the quoted clause. Second, where submissions did not state a specific clause, an effort was made to link the main point of the submission to the relevant clause. The clause-by-clause summary below should therefore not be viewed as a full repeat of written submissions received, but a summary of the main points contained within the written submissions, arranged per the relevant clause.

Clause-by-clause summary of written submissions

The tables below provide a summary of public submissions that were received per individual clause.

Clause 1: Definitions

Clause 1 clarifies and introduces new definitions of various national security concepts and terminology relevant to the amendments in the Bill such as the definitions of the Agency, Service, Centre, cybersecurity, Academy, National Security, threats to National Security, domestic and foreign intelligence, and intelligence gathering amongst others.

ORGANISATION	COMMENT
Freedom Under Law and the Ahmed Kathrada Foundation	Expanding definitions: The Bill expands the definition of ‘national security’ which would effectively expand the reach of the state security agencies into every aspect of public life. This is contrary to the recommendations of the Review Panel - and indeed best practice - that national security powers should be narrowly defined. By jettisoning the requirement that ‘national security’ is principally concerned with threats to the constitutional order, the new definition expands the concept to one which is vague and all-encompassing, and which could potentially turn almost any matter into one of national security. the suggestion that these concepts are embodied in section 198 of the Constitution is misleading. While section 198 refers to equality, peace and harmony, and the ability to seek a better life, the section does not guide as to the ‘national values’ allegedly at the heart of ‘national security’ The definitions of ‘domestic intelligence’, ‘foreign intelligence’, intelligence gathering’, and ‘national security intelligence’ go far beyond the legitimate scope of state intelligence, and given the State Security Agency’s track record of meddling in politics and civic life, are extremely concerning.
Jane Duncan	The below definitions, amending Section 1 of the National Strategic Intelligence Act, 39 of 1994, are concerning, as they are too broad and need to be narrowed: Domestic Intelligence Foreign Intelligence Intelligence gathering National security National security intelligence Opportunity and potential opportunity Threat to national security These definitions allow the Agency and the Service to undertake any activity that could advance South Africa’s interests, creating the potential for overlap with the mandates of other government and state entities. The above definitions need to be narrowed to ensure that they focus on domestic and foreign threats of organised violence against society and other maladies that threaten physical survival on a national scale.
	References to national security opportunities should be removed in all definitions, as should the entire definition of opportunity or potential opportunity.
	Section 1(a)(iv) of the Bill should be removed in its entirety.
Malan Vorster	The Bill’s definition of “persons or institutions of national security interest” is so broad, that it includes: People who want to start a church or nonprofit organisation. Any action that can be cross-referenced to section 198 of the Constitution. In other words, any action that someone else perceives as affecting his ability to Live as equals; to Live in peace and harmony; to Be free from fear and want; and to Seek a better life. Threats, potential threats, opportunities, and even potential opportunities.
Malan Vorster	When it comes to what will be seen as “subversion and undue influence by hostile interests on government processes, policies and the sovereignty of the State and its organs”, the bill chooses not to exclude and protect “lawful political activity, advocacy, protest or dissent” (something it expressly does elsewhere with regard to other provisions).
Transnet (Michelle Phillips)	The proposed amendment to the term “critical infrastructure” does not take into consideration the Criminal Matters Amendment Act, 18 of 2015 which has defined essential infrastructure. It is recommended that the Bill also include essential infrastructure and refer to critical and essential infrastructure. It is recommended that the following definition be inserted: “essential infrastructure has the meaning ascribed to it in the Criminal Matters Amendment Act, 18 of 2015.
	The proposed amendment on “national security” is ambiguous and there is no rationale for the change. It is therefore recommended that the proposed amendment be deleted. It is recommended that the definition in the Principal Act be maintained.
	The proposed amendment to the term “security competence test” creates confusion. The said amendments contain the existing definition of “vetting investigation” which has not been deleted or amended. It is recommended that the definition of “security competence test” be deleted and the definition of ‘vetting investigation’ be amended to read: “vetting investigation’ means the prescribed investigation followed in determining a person or institution’s security competence; if such person or institution is suitable to access classified information or critical infrastructure of the State or is viewed as vulnerable to blackmail, undue influence or manipulation or security compromise or is a person or institution of national security interest in terms of Section 4(2)(a)(i) of the Act;”
Amabhungane	There is no definition of bulk surveillance in the Bill. However, it is referenced in the amendment introduced in section 2, and the explanatory notes recognise that the Constitutional Court had found that there was no legal basis for bulk interception activities.
	The Bill introduces a new definition of ‘national security’ and ‘threats to national security’ which are too broad and this is exacerbated by the use of the word ‘potentially’. For something to constitute a threat to national security if it ‘potentially’ causes damage, harm or loss is impermissibly broad. At its most fundamental, the law does not enable individuals to understand what conduct is prohibited or sanctioned.
	The activities in subsections (f) – with its focus on ‘government processes’ and ‘policies’ – could include activities that call for a change in government policy, in government itself, or for other legitimate expressions of discontent. This is an overreach. All democracies have to respect the contestation of government processes and policies.
	The overly broad and vague definitions will have a particularly dangerous effect in the new vetting powers the Bill introduces. We (Amabhungane) align ourselves with the Intel Watch's input on the matter.
FW de Klerk Foundation	Problematic definitions: “threat” a crucial concept underpinning the entire Bill and various definitions, is undefined. (Neither is this crucial concept defined in any of the principal acts.) The definition of “person or institution of national security interest” hinges on two (2) problematic concepts, namely: (i) these people or institutions’ activities are deemed by the Agency to be inconsistent with section 198 of the Constitution, including, but importantly, not limited to, (ii) activities that are defined as a “threat to national security”. These concepts are problematic. Both “national security” and “opportunity or potential opportunity” are highly problematic because it results in a circular definition that reads: national security: “the capabilities, measures, and activities of the State to pursue or advance (a) any threat; (b) any potential threat; (c) national security; (d) national security; or (e) the security of the Republic and its people, in or outside the Republic in accordance with section 198 of the Constitution”
	An “opportunity or potential opportunity” is effectively defined as any opportunity or any potential opportunity the State pursues. First, the definition is unworkable and open to abuse due to circularity. Second, the concept of “potential” threat or opportunity is redundant as both a threat and opportunity by definition are a potential danger and potential good respectively. Third, the Agency seems to have carte blanche in deciding what will be deemed as either a threat or opportunity as the Bill fails to give any parameters (i.e. factors) to be considered for the identification and establishment of either a threat or an opportunity.
	“National security”, similarly, is defined as the pursuit and advancement of national security. Not only is this unworkable and open to abuse due to circularity, but due to being arbitrary and thus, irrational, it fails to comply with the Republic’s founding value of the rule of law15 and is unconstitutional.
	The definitions of “domestic intelligence”, “foreign intelligence”, “intelligence gathering” and “national security intelligence” all include the concepts of “threat or opportunity or potential opportunity or threat or potential threat to national security.”
	The definition of “security competency test” contains a disjunctive reading (i.e. use of “or” as opposed to “and”) of the factors, making it overbroad, because literally every citizen in the Republic can be deemed to be vulnerable to e.g. “manipulation”.
	Note: The FW de Klerk Foundation submitted a comprehensive list of proposed definitions for the Bill.
Free Market Foundation	The Bill defines ‘national security’ to mean ‘the capabilities, measures, and activities of the State to pursue or advance any threat, potential threat, opportunity, potential opportunity, or the security of the Republic and its people, in or outside the Republic, in accordance with section 198 of the Constitution.’ A ‘person or institution of national security interest’ should be identified by the government, and conduct themselves or engage ‘in activities that are inconsistent with the principles set out in section 198 of the Constitution’. Those who are defined as a ‘threat to national security’ are automatically persons or institutions of national security interest. Section 198 of the Constitution is not meant to be deployed in the manner envisaged in the Bill. For example, section 198(a) provides that national security ‘must reflect the resolve of South Africans […] to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life.’ This does not mean that anyone who advocates for or holds a discriminatory belief or subscribes to a value system that defines ‘freedom from want’ differently than government, is falling foul of this provision.
Free Market Foundation	The inclusion of the notion of ‘measures that seek to advance and promote equality’ must be seen in light of the new Equality Amendment Bill and its new, broadened definition of equality that might soon become law. Here it suffices to say that a virtually innumerable amount of normal and uncontentious phenomena in contemporary South African society would qualify as ‘undermining […] equality’ in this sense and thus qualify as a ‘threat to national security.’
Bakgatla Ba Ga Lekhuleni Traditional House	Include the definition of ‘traditional leadership’ and the ‘House of Traditional Leaders’ in line with section 1(m).
Helen Suzman Foundation	A “person or institution of national security interest” is defined in clause 1(p). There are several concerns with this Bill: It does not indicate that meaningful procedural safeguards guide the Agency in identifying persons “in the form and manner prescribed”. The “principles set out in s 198 of the Constitution” are general principles that guide South Africa in protecting its national security interest and, therefore, are too broad to determine who should be the subject of security vetting. The Bill defines “threat to national security” in dangerously broad terms, as “any action or omission which may potentially cause damage, harm or loss to the national security”.
AfriForum	AfriForum expresses profound concern regarding the expansion of vetting powers proposed in the Bill. We contend that such extensive vetting powers may lead to undue surveillance, particularly affecting civil society. The broad definition of “person or institution of a national security interest” raises apprehensions about potential infringements on freedom of association and the right to privacy. This contravenes the fundamental principles of the rule of law and the Constitutional Court’s insistence on rational and proportional exercise of public power. The potential for unequal treatment and the absence of a rational justification further underscores the inadequacy of this provision. The expansive and vague nature of the Bill’s provisions regarding “persons or institutions of a national security interest” raises red flags in relation to the right to privacy. The vague and broad language used in the Bill, coupled with the above-mentioned history of political interference surrounding state security, leaves the door open for intelligence services to target organisations and individuals engaged in lawful political activities, protests, dissent, or advocacy
*Anonymous*	Several definitions are vague and creates opportunities to be misused or open for different interpretations, including: National Security Opportunity or potential opportunity persons or institutions of national security interest security competency test threat to national security
Campaign for Free Expression	The definition of ‘national security’ is confusing, ungrammatical, and very broad for the following reasons: It is not clear what is meant by “to pursue” any threat. “Any potential threat” is extremely wide. The unqualified phrases “any opportunity” or “potential opportunity” would give the Agency the power to do almost anything, whether or not there are national security concerns. We suggest ‘national security’ be defined as “the capabilities, measures, and activities of the state to (a) prevent or deal with any threat to or (b) advance any opportunity to protect the Republic and its people in or outside the Republic by the Constitution.”
Campaign for Free Expression	The phrase “potential opportunity” is used repeatedly in the Bill in a way that is vague and unclear and would allow for almost any activity.
OUTA	OUTA raised concern around the definition of “person or institution of a national security interest” and how this relates to vetting. Granting state intelligence agencies the authority to conduct mandatory security vetting of any "person or institution of national security interest," with the definition being so excessively broad, could empower the state to vet private individuals or institutions, including non-profits, faith-based organisations, and businesses, opening the door to potential abuse of this intrusive power. The Agency is given the power to decide which “person or institution”, according to its definitions, is identified to engage in activities deemed as “inconsistent” There is also no clarity in the Bill on the “form and manner” which will be used by the Agency.
	The Bill broadens a few definitions including the definitions of domestic intelligence, foreign intelligence, intelligence gathering, national security, national security intelligence, and threats to national security. This allows unrestricted intrusion by these agencies into various aspects of our daily lives, beyond the legitimate scope of state intelligence.
	Section 1(k) of the Bill inserts “national critical information infrastructure”. Without the various categories of “infrastructure, products or systems” being specified, it disconcertingly provides the platform for the State to manipulate its meaning to suit its purposes. In addition, the scope for items critical for “the socio-economic well-being of citizens” is left wide open for mis/interpretation.
	The terms “classified information” and “critical infrastructure” are left open to mis/interpretation, allowing the State to decide on an ad hoc basis which instances it might apply to. The State is also given the power to classify any such information and infrastructure it may deem to be made private, and therefore, not available to the public which is contrary to Section 31 of the Constitution. Further, the inclusion of this definition within the amended bill, together with the lack of examples provided, significantly weakens the rights of citizens to exercise their civic duty.
Various contributors (via DearSA)	Although non-substantive in nature, more than 200 references to ‘definitions’ were made in the submissions submitted via DearSA, with the most common concern raised that these were vague in nature and would therefore be open to abuse by the intelligence services.
International Religious Freedom (IRF) Roundtable (Africa Working Group)	The nomenclature of this proposed bill is so vague that the definition of basic terms such as “intelligence” is confusing. Specific reference was made to the Bill not defining and Non-Governmental Organisation.
Sunna Ulama Council Gauteng	The institution noted concerns about several definitions in the Bill: National Security: We refer to the SADC Protocol on Politics, Defense and Security Cooperation signed in 2001 where matters of state security were stated as follows: “Recognizing and reaffirming the principles of strict respect for sovereignty, sovereign equality, territorial integrity, political independence, good neighborliness, interdependence, non - aggression and non-interference in internal affairs of other states”. We therefore submit that the following definition be adopted: The obligation to provide measures, capabilities, and activities that will protect the sovereignty, territorial integrity, and political independence from any aggression from internal and external threats of the Republic of South Africa and its people” as obligated in section 198 of the Constitution. Opportunities or potential opportunity: This has no relevance and would be covered in the definition of “national security” and should be removed. Person or institution of national security interest: New proposed definition: “Means any person or institution identified after following due process by the Agency, who acts in a way that threatens the sovereignty, territorial integrity and political independence of the Republic and the people of South Africa”. Security competency test: This should be strictly limited to those within the intelligence structures and those that deal with the intelligence structures. Threat to national security: There should be an exclusion to lawful political activity, advocacy, and other lawful protest.
	Subparagraph (e): “terrorism, terror financing, illicit money flows, money laundering,” has not been clearly and unambiguously defined and this could lead to abuse taking into account rising islamophobia. This clause should be removed for the reasons stated as well as the fact that it is already dealt with in the Anti Money Laundering Act.
	Subparagraph (j) has no relevance to the Bill and should be removed in its entirety.
Dominique Pitot	Circumstances under which citizens can be investigated are now significantly broadened and the justification for investigations is significantly weakened with ambiguous language that will be interpreted to favour the agenda of powerful individuals. For example, any threat to "equality, peace, and harmony" are justifications for attention by the intelligence apparatus. This can be manipulated to mean anything that is disliked by someone in power.
Heyns van der Merwe	The wording is far too vague in defining the aspects and reasons for these special powers to be applicable to inspect/monitor/vet anyone deemed to be a threat to national security.
Rustum	Of particular concern is the potential impact of the “Spy Bill” on freedom of religion. The broad and open-ended definitions within the bill could empower the South African Intelligence Agency to conduct invasive vetting investigations on religious institutions and their leaders, potentially leading to the arbitrary denial of security clearance certificates. This constitutes an unacceptable infringement on the constitutionally protected right to freedom of religion and could have far-reaching consequences for religious communities across the country.
Tania Ahlfeldt	The Bill raises concerns with its broad definition of 'threat to national security,' including 'equality,' 'peace,' and 'harmony.' The mandate for security services to act on 'opportunities' alongside threats may lead to excessive state interference.
DOD	The Definition of ‘domestic Intelligence” does not include an explanation of domestic military intelligence. The existing definition of “domestic military intelligence” in the National Strategic Intelligence Act, 39 of 1994, does not make provision for situational awareness and early warning derived from continuous intelligence collection overtly and covertly due to national security threats or emerging threats of a military and non-military nature. Recommendation: Domestic intelligence means intelligence, including domestic military intelligence, on any internal threat opportunity or potential opportunity or threat or potential threat to national security Recommendation: Domestic military intelligence means the proactive collection of information on any domestic threat or opportunity or potential opportunity or threat or potential threat to national security in preparation for possible deployment of the SANDF in terms of section 227 (1) of the Constitution (1993) and Section 200(2) of the Constitution (1996) to neutralise any threat to national security.
Collection of 30 submissions from faith-based organisations (same submission)	I oppose the Bill because the Bill’s broad definition of “persons or institutions of a national security interest” will include religious organisations and their employees and subject them to a vetting investigation by the South African Intelligence Agency (“spies”). It could cause religious institutions that fail to a security clearance certificate to close. I ask that the Bill be changed as follows: “National security” be defined as: “the protection of the Republic's interests, citizens, institutions, and sovereignty from internal and external threats, as governed by the principles set out in section 198 of the Constitution” “opportunity or potential opportunity” be deleted entirely from the Bill. “person or institution of a national security interest” be defined as: “any person or institution suspected of espionage”. “Security competency test” be defined as: “administering a vetting investigation to determine the security competence of a person to determine whether such person is suitable to access classified information or critical infrastructure of the State. Such vetting investigation should consider whether the person is a security compromise because they are seen as vulnerable to blackmail, undue influence or manipulation”. “Threat to national security” be defined as: “subversion and undue influence by hostile interests on government processes, policies and the sovereignty of the State and its organs; but does not include lawful political activity, advocacy, protest or dissent”.
Association of Muslim Accountants and Lawyers of South Africa	The definition of threats to national security, now encompasses not only potential dangers to equality and access to opportunity but also efforts to foster peace, harmony, and freedom from fear and want. These definitions lack clarity and precision. The Bill also significantly broadens the range of activities that could be categorised as potential threats to national security.
Privacy International (PI)	Overly broad definition of national security and its impact on interconnected terms. The original definition was already quite broad and the addition of "any opportunity and potential opportunity" further exacerbates the problem rather than building a definition that is more precise and aligned with the principle of legality. PI submits that this expansion of the definition of national security is vague and broad and does not align with international legal standards on national security and surveillance, especially to the principle of legality. Regarding the definition of national security, the Report of the United Nations High Commissioner of the Human Rights on the Right to Privacy in the Digital Age highlights that vague and overbroad justifications, such as unspecific references to "national security," fail to meet the standard of adequately clear laws. Similarly, the UN General Assembly Resolution on the Right to Privacy in the Digital Age stipulates that surveillance of digital communications must adhere to international human rights obligations and be conducted based on a legal framework that is publicly accessible, clear, and precise. We are concerned that none of these criteria are met with the proposed amendments. It is crucial to emphasise that the definition of national security is interconnected with definitions of domestic intelligence, foreign intelligence, intelligence gathering, national critical information infrastructure, person, or institution of national security interest, and threat to national security. Each of these definitions references the term “national security”'. Following the same line of reasoning, this correlation may lead to the discretionary application of these concepts, thereby resulting in unjustifiable and unlawful intrusions into daily lives.
	The definition of “person or institution of a national security interest” encompasses “any person or institution, identified by the Agency in the form and manner prescribed, that conducts himself/herself or itself or engages in activities that are inconsistent with the principles set out in section 198 of the Constitution…” In the initial segment of the definition, it is crucial to note that the term "inconsistent" lacks a specific legal meaning. Recommendation: Replace the term "inconsistent" with "in contravention".
	According to the Bill, a threat to national security includes "any action or omission which may potentially cause damage, harm or loss to the national security, which includes: (…) (f) subversion and undue influence by hostile interests on government processes, policies and the sovereignty of the State and its organs (…).”The concepts of damage, harm, loss, undue influence, and hostile interests are overly broad and require more precise criteria to avoid excessive discretion. Recommendation: Clarify the concepts of damage, harm, loss, undue influence, and hostile interests. Prevention of chilling effect and misuse of this clause: introduction of a preventive clause. We propose the following insertion: (f) subversion and undue influence by hostile interests on government processes, policies and the sovereignty of the State and its organs; [but this does not include lawful political activity, advocacy, protest or dissent].”
Southern African Catholic Bishop’s Conference Parliamentary Liaison Office	The key problem, in our submission, is the definition of ‘National Security’. If this definition, and the associated definitions of ‘person or institution of national security interest’, ‘opportunity or potential opportunity’, and ‘threat to national security’ can be clarified and narrowed, many of the other concerns that have been raised by civil society will be addressed. This definition is so broad as to be effectively useless. The proposed definition of ‘national security’, as well as the definition of ‘opportunity or potential opportunity’, refer to section 198 of the Constitution, which sets out the governing principles of national security. Unfortunately, this does not make the definitions any less broad or vague. Section 198, typically of a constitutional provision, contains aspirational rather than definitional language – ‘to live in peace and harmony’; ‘to seek a better life’. These phrases cannot be used to justify wholesale interference in people’s rights by the state’s security organs.
Sonke Gender Justice	The section 1(m) definition of “national security” is vague. Whereas it provides for the actions that may be taken by the state to advance national security it does not clarify what national security means for the purpose of the Bill. It begs the question “what is national security?” Recommendation: “The protection of the Republic's interests, citizens, institutions, and sovereignty from internal and external threats, as governed by the principles set out in section 198 of the Constitution.”
	Section 1 (p) “persons or institution of a national security interest”. The definition is open to the subjective interpretation of security institutions. Whereas we applaud the removal of the terms “religious and Non-profit institutions from this provision we would submit the provision materially remains the same. Thus, leaving religious and non-profit institutions open to State harassment, undue influence, and persons working in such institutions open to victimisation by the state.
	Section 1(q) “Security competency test”. This provision is so broad that instead of providing protections for institutions and persons from the vulnerability of blackmail to the detriment of national security, it places persons and institutions in a vulnerable position open to the manipulation, undue influence, and blackmail by state officials. The vetting process may be applied to unduly deny competency to organisations and persons within such organisations for their political dissent and for dissenting against the state.
	Section 1 (t) “threat to national security”. Since the Bill does not define what national security should look like, it makes the definition of a threat to national security untenable. Recommendation: “the subversion and undue influence by hostile interests on government processes, policies and the sovereignty of the State and its organs; but does not include lawful political activity, advocacy, protest, or dissent and litigation brought against the State.”
Freedom of Religion South Africa (FOR SA)	Clause 1(p) of the Bill inserts a new definition of “person or institution of a national security interest”. It is important to note that this is not a closed definition. The use of the word “including” extends the scope of the definition beyond engagement in activities that are a threat to national security. This means a person or institution whose conduct falls short of section 198, can still be regarded as a “national security interest” even if not engaged in activities that threaten national security. In the context of section 198 of the Constitution, potentially anything could be seen as affecting South Africans’ resolve to seek a better life. Also, to a certain degree, views on what a “better life” is, are subjective. Incorporating section 198 into the definition of “persons or institutions of national security interest”, makes the definition vague and very wide.
	Clause 1(m) substitutes and expands the existing definition of “national security”. The amended and expanded definition of “national security” is problematic because it includes more than one concept that is broad and ambiguous. This causes the definition of “national security” to suffer the same fate of being vague and overbroad, and as a result, it is unconstitutional. The problematic elements of the definition of “national security” are the concepts of “threat”, “potential threat”, “opportunity” and “potential opportunity”. Note: FOR SA provided an extensive explanation as to why “threat” and “potential threat” as well as “opportunity” and “potential opportunity” are considered legislatively problematic.
	Clause 1(t) inserts the new definition of “threat to national security. Clauses 1(t)(a) and (b) divides section 198(a) of the Constitution. FOR SA sees no rational basis for doing so. The right to equality in section 9 of the Constitution does not include “equitable access to opportunities” but rather “the full and equal enjoyment of all rights and freedoms” and “the right not to be unfairly discriminated against”. This means the Bill’s concept of “equality” (specifically the inclusion of equitable access to opportunities) goes much further than the right to equality contemplated by section 9 of the Constitution.
	Clause 1(t)(f) includes the “subversion and undue influence by hostile interests on government processes, policies and the sovereignty of the State and its organs” in the definition of “threat to national security”. Conspicuously, lawful political activity, advocacy, protest, and dissent in opposition to government processes and policies is not excluded or protected.
	Definitions of domestic intelligence, foreign intelligence, intelligence gathering, and national security intelligence: Each of these definitions includes the nonsensical, ambiguous, and overbroad concepts of “opportunity” and “potential opportunity”. Each also includes the undefined concepts of “threat” and “potential threat”. The reference to “threats to the advancement or protection of national security” in the definition of “intelligence gathering” is unnecessary because logically it is already included under “threat to national security”
	The definition of “security competence test” is disjunctive. I.e. it uses “or” as opposed to “and”. This makes the definition overbroad. Conceivably every South African citizen and institution is potentially vulnerable to blackmail, undue influence, manipulation, or security compromise. However, this does not make every citizen or institution a threat or even a potential to national security.
	Note: FOR SA provided a comprehensive list of alternative wording for the Bill’s definitions.
Louise Bick	The overbroad definitions of inter alia the terms “national security”, “threat to national security” and specifically the definition of a “person or institution of a national security interest”, in the context of the proposed legislation would include civilians or civilian institutions, whose expressed opinions or beliefs do not accord with those of the government. This would expose civilians or civilian institutions such as religious, civil society, and educational institutions to undisclosed unilaterally determined extensive surveillance without recourse to just administrative process.
	Intelligence gathering: the insertion of the terms “opportunity or potential opportunity” is too open to subjective interpretation and too wide of a net to cast.
	Opportunity or potential opportunity: This definition is lacking in substance and is broad enough to include any capability, measure, or activity that doesn't contradict the law however, due to the nature of these actions being clandestine, there is no oversight thereof.
	National security intelligence: This definition, in repeating the word “any” is too all-inclusive and gives the Agency excessive extension of the type of intelligence that can be obtained.
	National security: The inclusion of the term “potential” is too subjective and the Bill does not create any parameters for assessing this or the oversight of this decision.
	Person or institution of national security interest; Security competence test; Threat to national security: How will the “potential” cause of harm be determined? What oversight and safeguarding measures will exist to ensure that this wide power is not abused? The term “subversion” is undefined.
NPO Working Group	The Bill expands the definitions of national security and intelligence, which would expand the reach of the intelligence services into all aspects of life. The following definitions are vague and broad: Domestic Intelligence Foreign Intelligence Intelligence gathering National security National security intelligence Threats to national security For social justice and climate change/environmentalist organisations, there is a heightened risk that these expanded powers could be misused.
Association of Christian Media	The November 2023 Draft of the Bill has raised concerns regarding its definition of 'threat to national security,' which now includes threats to 'equality' and 'peace and harmony.' This broad language, coupled with the mandate for security services to act on 'opportunities' as well as threats, has been criticized as overly expansive. Such wording could potentially allow state security to engage in intrusive practices such as vetting religious and non-profit organisations, as was explicitly mandated in the May 2023 Draft of the Bill. The concern stems from the political philosophy that advocates for the freedom of religion from state interference, which is rooted in Biblical beliefs regarding the autonomy of religious expression and skepticism towards the state's ability to arbitrate religious matters. Special interest groups have been accused of misinterpreting Christian teachings on issues such as sexuality, the sanctity of human life, and gender, labeling them as a 'threat to equality.' This misinterpretation could provide a pretext for government officials to justify vetting and monitoring religious and non-profit leaders. Critics argue that there are already sufficient criteria in place to identify genuine threats to national security and that the Intelligence services should focus on their legitimate duties rather than engaging in potentially infringing activities. The definitions of ‘threat to national security’ and ‘persons of national security interest’ need to be narrowed, particularly by the deletion of the vague criteria of ‘equality’, ‘peace and harmony’, and ‘opportunities’ or ‘potential opportunities’. If the powers of state security are to be increased by allowing mass surveillance, investigation on behalf of other government departments, and access to information of other government departments, then the powers and independence of the Office of the Inspector-General need to be correspondingly strengthened as they have themselves proposed.

Clause 2: Functions

Clause 2 of the Bill outlines the functions of the Agency, Service, and the Centre.

ORGANISATION	COMMENT
Jane Duncan	This clause suggests that members of the Agency will have the power of arrest. Section 2(b)(v) should be replaced with the following: Refer cases involving members suspected of contravention of this Act and related regulations to the relevant law enforcement agencies
Bakgatla Ba Ga Lekhuleni Traditional House	Section 2(b)(ix) should include traditional leadership representatives to whom the periodic national security briefing has to be extended.
Bakgatla Ba Ga Lekhuleni Traditional House	Sections 2(a) to 2(c) refers. The Committee referred to must include two persons, one representing the religious stream and the other the traditional leaders stream.
OUTA	The Bill attempts to expand the powers of state security agencies’ surveillance capabilities through the National Communications Centre (“NCC”). Section 2(b)(b) that will substitute section 2 of the National Strategic Intelligence Act, 39 of 1994, sets out how this will be achieved. However, the section does not provide for the requisite protections for privacy and freedom of expression, nor meaningful oversight of the NCC, in that, although the NCC’s mass surveillance system would have formal oversight from a retired judge, that judge would be appointed by the President and advised by two ‘interception experts”. This falls far short of the new standards for surveillance oversight set by the Constitutional Court in the amaBhungane judgement.
Razia Razien	Note: No reference to a specific clause, but below has a reference to Clause 2 of the Bill: Domestic intelligence must include the following: Intelligence on Commerce and Industry. Security service providers operating as para-military organisations for foreign parties. Digital and cyber-intelligence. The directors of companies that fund foreign military groups.
Razia Razien	Government departments must be subject to intelligence screening every three years. All [SOE] and Non-Profit Company that receive funding from social development must be investigated.
Ninette Tarlton	Note: No reference to a specific clause, but below has reference to Clause 2 of the Bill: There is a concern regarding the appointment of a retired judge (by the presidency alone) for the purpose of the judge being the authority to grant permission for intelligence exercises to be undertaken. Again, there should be independent representation from civil society groups in assisting the president to make such an appointment. The bill provides too much power to the appointed Intelligence Minister (the Minister should not be the one to appoint the two experts - there needs to be representation from civil society groups in making this call) and does not have sufficient safeguards against potential abuse by persons in power seeking to manifest their agendas, without interference from the general public.
Intel Watch	Intel Watch points to dangers related to further regulations. In terms of Section 2(2)(B), there is a danger that the judge him/herself may be left in the dark as to the real consequences of an application granted for such interception. As to how this provision may be amended, some guidance may be found in s16 of RICA to the extent that it has been found to be constitutionally compliant. Intel Watch also proposes best practices form other jurisdictions.
	Intel Watch proposes that s2(2B)(1) of National Strategic Intelligence Act, 39 of 1994, must be significantly revised to include: safeguards to ensure that the designated Judge is sufficiently independent. safeguards to address the fact that interception directions are sought and obtained ex parte. detailed grounds upon which bulk interception of communications may be authorised. provision for notifying the subject of surveillance of the fact of her or his surveillance as soon as notification can be given without jeopardising the purpose of surveillance. procedures to ensure that data obtained pursuant to the interception of communications is managed lawfully and not used or interfered with unlawfully. safeguards where the subject of surveillance is a practising lawyer or journalist. provision for independent ex post facto review of bulk communications interception, such as by the IGI.
Privacy International (PI)	The Court mandated a cessation of bulk interception practices until legislation was enacted. The Court was precise in the judgment, saying that to be lawful they needed to provide “...the nuts and bolts of the [Centre’s] functions", and say explicitly the "...clear, precise terms the manner, circumstances or duration of the collection, gathering, evaluation, and analysis of domestic and foreign intelligence." The Bill fails in our view to address this issue adequately, as it simply takes the clause on the strategic intelligence mandate of the National Intelligence Agency from the National Strategic Intelligence Act, 39 of 1994. Recommendations: Remove mass surveillance powers authorisation as they impair the essence of the right to privacy and that it is neither strictly necessary nor proportionate in a democratic society. There are often less invasive alternatives. And even where there may not be, we question whether a democratic society can survive under constant surveillance. Alternatively, if those powers are retained to introduce enhanced end-to-end safeguards regarding the use of these powers. The Bill should offer comprehensive explanations of the steps involved in selecting, examining, and utilising intercept material. Incorporate at least the safeguards established by the European Court of Human Rights into the legal framework. Specifically, this entails defining clear and transparent grounds for authorising bulk interception, establishing robust procedures for granting such authorisation, and implementing strict limits on the duration of interception activities.
	Section 2B(1)(i) stipulates that the Minister of Justice must designate a retired judge after consultation with the Chief Justice. While this represents an improvement by moving away from the notion of sole appointment by an executive authority, there is a concern regarding the phrase "in consultation". This wording implies that the Chief Justice's opinion is merely advisory and not binding.
	The absence of concrete legal or regulatory frameworks defining how authorisation judges make their decisions poses a significant challenge. The European Court of Human Rights has established specific safeguards in the domain of judicial authorisation that must be incorporated into legislation.31 Therefore, it is imperative to clearly define the grounds upon which bulk interception may be authorised, establish transparent procedures for granting such authorisation, and set clear limits on the duration of such interception activities
Louise Bick	Reference to ‘critical infrastructure’ means critical infrastructure as defined in section 1 of the Critical Infrastructure Protection Act, 8 of 2019, (“the CIPA”), meaning “any infrastructure which is declared as such in terms of section 20 (1) and includes a critical infrastructure complex where required by the context.” Section 20 of the CIPA has not yet been proclaimed. Therefore, the extent of application of this requirement is unknown, specifically in relation to critical infrastructures of an electronic nature. T
	It is wholly unclear from the Bill as to the purpose or application of a security clearance certificate and the consequences of a person or institution failing to have one, other than the aforementioned circular reference in the Bill. This means that the Agency is essentially empowered by the Bill to gather, correlate, evaluate, and analyse information on any person and any institution for the reason of security competency testing with no explanation as to what precipitates such a test or the purposes of the result of said test.
	This extended definition of “security competence test” includes a person or institution of “interest”, which is defined as “any person or institution, identified by the Agency in the form and manner prescribed, that conducts himself/herself or itself or engages in activities that are inconsistent with the principles set out in section 198 of the Constitution 5 including any person or institution that engages in activities that are defined as a threat to national security in terms of this Act;” is broad. The inclusion of Section 2A(1)(a)(iv) is no longer within the ambit of the current content of Section 2A, the remaining categories of which have a rational basis for the need for a security competence test.
	“Security clearance certificate” is undefined in the Bill and is not mentioned in the current NSI Act.

Clause 3: Security competence assessment

Clause 3 of the Bill provides the responsibility for the conducting of security competence assessment test and vetting of persons employed by applicants to organs of state, or rendering services to organs of state which is the responsibility of the Agency.

ORGANISATION	COMMENT
Freedom Under Law (FUL) and the Ahmed Kathrada Foundation	Matters related to vetting: The definition of ‘person or institution of National Interest’ is extremely broad, it potentially casts a wide net over almost all civic structures. Security vetting is extremely intrusive and FUL is sceptical of the state’s need for this power. The Bill is imprecisely drafted and the ambit of extensive state powers, such as security vetting, is ambiguous and ill-defined. What was previously a discretionary power to conduct security vetting (‘may conduct vetting’) has now been made compulsory (‘must conduct vetting’). The Bill widens the definitions of operative terms in a way that would allow for the unconstrained intrusion of state security agencies into every aspect of citizens’ daily lives. The Bill gives state security agencies the power to vet individuals who wish to access national key points, such as the SABC. This is a dire threat to journalistic independence. By including national ‘opportunities’ in the ambit of the state security apparatus’ objectives, the Bill impermissibly expands the SSA’s mandate beyond the furtherance of public safety. The definition of ‘persons or institutions of national security interest’ is exceedingly broad. The increased scope of security vetting effectively permits the SSA to conduct extra-judicial investigations into persons and organisations in a manner that is contrary to the Financial Task Force’s (FATF) Recommendation 8. Given that powers of investigation have already been conferred upon the Financial Intelligence Centre and the Hawks to combat terrorism finance and money laundering, conferring the same powers on the SSA is superfluous.
Transnet (Michelle Phillips)	Clause 3(a)(1) of the Draft Bill states that the relevant members of the National [Security] Intelligence Structures [may] must conduct a vetting investigation in the prescribed manner to determine the security competence of a person. The proposed amendment means the vetting investigation process is changed from discretionary to mandatory. It is recommended that the consequences for non-compliance by persons or institutions subject to vetting investigation be stipulated in the Regulations. Further, the Regulations should outline the performance matrix in respect of turnaround times associated with the completion of a vetting investigation.
	The proposed amendments to Clause 3(a)(1)(a) provide for a prescribed category of persons or institutions, the risk of a limited scope may be that certain key positions or institutions may be left out. Extensive consultation with the relevant stakeholders must be held to determine what this prescribed category should be. The Bill should also refer to political appointees such as Ambassadors, Directors General, Chief Executive Officers, etc who by the virtue of their role, are required to access classified information. It is recommended that the prescribed category of persons or institutions be outlined in the Regulations and the Bill adopt a risk-based approach when determining such persons or institutions. Further, that prescribed category also provide for political appointees, as noted above.
	The proposed amendments to Clause 3(a)(1)(a)(1) specifically exclude existing employees. The change in the scope of the application poses a risk as most people who require security clearances are already employed, to exclude them will significantly reduce the efficacy of the vetting investigation process.
The Helen Suzman Foundation (HSF)	While HSF recognizes that the state has a legitimate interest in vetting persons listed in the proposed section 2A(1)(a)(i) to (iii), the proposed section 2A(1)(a)(iv) is dangerously broad as it effectively exposes all institutions and individuals to the risk of being vetted by the agency. The Bill’s definitions offer little solace for those looking to interpret the proposed section 2A(1)(a)(iv) to protection protect against abuse
Intel Watch	The Bill makes certain changes to the security structures’ mandate to provide vetting investigations. Ostensibly, the amendment to this section is meant to “enable” the Intelligence structures “to conduct security assessments and investigations on institutions that may be used illegally for terror financing and money laundering.” This amendment, more than any other, is the proposal that is meant to “address the weaknesses identified through the Financial Action Task Force process, including measures to combat money laundering and terrorist financing.” The following changes are problematic: The Bill changes the previously hortatory language in s2A(1)(a) of the National Strategic Intelligence Act, 39 of 1994, to mandatory. The reason for this change is unclear. Another major change to this section is the addition of a category of persons and institutions whom the intelligence structures must vet, namely “a person or institutions of a national security interest in terms of Section 4(2)(a) (i) of the [National Strategic Intelligence] Act.”. If read with Section 4(2)(a)(i) of the National Strategic Intelligence Act, 39 of 1994, the proposed definition of “person or institution of a national security interest” seems to imply that the Agency may determine who ought to be vetted, while the reference cross-reference to s4(2)(a)(i) of the National Strategic Intelligence Act, 39 of 1994, seems to suggest that NICOC will be responsible for such a determination. The principles outlined in Section 198 of the Constitution also do not assist in providing any further clarity.
Intel Watch	The purpose of vetting also remains unclear. Section 2A(1)(a) itself makes it clear that it only applies to “a prescribed category of persons or institutions who must have security clearance”. The addition of the fourth category of persons and institutions makes little sense in this context. However, the implication appears to be that NICOC and/or the Agency itself may determine which category of persons or institutions are required to have security clearance. This is even more concerning given that the revocation of security clearance has been used as a weapon in the past to silence those who opposed state capture. All proposed amendments to s2A(1)(a) of the National Strategic Intelligence Act, 39 of 1994, ought to be abandoned.
FISH HOEK VALLEY RATEPAYERS & RESIDENTS ASSOCIATION	Note: No reference to a specific clause, but below is a reference to Clause 3 of the Bill: Our Constitution's Bill of Rights (Chapter Two) guarantees the rights of privacy, freedom of association, religion, and free speech to all South Africans. Citizens should be encouraged to lawfully participate actively in the faith-based sector, civil society organisations, and NGOs within our constitutional democracy. The problem with the SSA vetting is that it delays appointments to these organisations due to its backlog. Also, the SSA has often tried to identify actual security risks, such as corrupt officials. The vetting process itself is corrupt when it is used to revoke the security clearances of its critics.
International Religious Freedom (IRF) Roundtable (Africa Working Group)	Note: No reference to a specific clause, but below is reference to Clause 3 of the Bill: In a previous iteration, there was language included that would have allowed the intelligence services to conduct security competency tests for those who wanted to start a new religious organization or an NGO. Even though this language has been removed, this proposed legislation seemed to target new institutions. What about current houses of worship regardless of faith that are currently open? Will they be targeted by the intelligence services regardless of this language being removed?
Dane du Plessis	Note: No reference to a specific clause, but below is a reference to Clause 3 of the Bill: The November 2023 draft of the Bill contains several provisions that will not protect religious leaders and NGOs from spying. The idea that we need a surveillance state with the power to spy on anyone anywhere for almost any reason to protect democracy is logically inconsistent. We need clear limits on the powers granted to any spy agency in the BIll. The provisions given are too vague in their current form.
Helen Suzman Foundation	The Bill’s proposed section 2A(1)(a)(iv) of the National Strategic Intelligence Act, 39 of 1994, remains vague and overbroad, and, thereby, still risks the South African Intelligence Agency (“Agency”) abusing its vetting powers to target innocent individuals and institutions of civil society. We submit that the Bill’s proposed section 2A(1)(a)(iv) of the National Strategic Intelligence Act, 39 of 1994, be removed.
Campaign for Free Expression	The Bill instructs the Agency to conduct a vetting investigation of any person who “falls within a prescribe category of persons or institutions who must have a security clearance …if a person or institution of national security interest”. This is grammatically problematic as the word “is” appears to have dropped and it should read, “if a person or institution is of national security interest”. Read with the expanded definition of national security, this opens up the risk of invasive and unnecessary surveillance on citizens, human rights defenders, free press, civil society organisations, and any other institutions or organisations who are not a threat to national security. Given the history of security vetting backlogs at the Agency and its failure to identify real security threats and risks within the government, this provision needs to be tightened. It is also not clear how an institution would be vetted and what this would entail.
	The Bill does not contain provisions to ensure the process is rigorous and fair, does not take an unreasonable amount of time, and does not ensure that those who do the vetting are held accountable for decisions that can affect people’s lives and careers. It gives a right of appeal, for example, but it is limited to appealing to the Minister and not to the IGI; it does not oblige the Agency to give reasons for the refusal of a vetting certificate, making it difficult to appeal; and it does not put time limits on the vetting process to ensure that it is not abused through delay. To some extent, these are dealt with in the 2014 Intelligence Service Regulations, but this is inadequate protection.
	The purpose of vetting also remains unclear. Section 2A(1)(a) itself makes it clear that it only applies to “a prescribed category of persons or institutions who must have security clearance”. The addition of the fourth category of persons and institutions makes little sense in this context. However, the implication appears to be that NICOC and/or the Agency itself may determine which category of persons or institutions are required to have security clearance. This is even more concerning given that the revocation of security clearance has been used as a weapon in the past to silence those who opposed state capture. All proposed amendments to s2A(1)(a) of the National Strategic Intelligence Act, 39 of 1994, ought to be abandoned.
OUTA	In addition, section 3(a)(a) of the Bill amends section 2A of the National Strategic Intelligence Act, 39 of 1994, which provides the Agency with the authority to vet individuals accessing national key points, such as the SABC, this poses a threat to journalistic independence.
Association of Muslim Accountants and Lawyers of South Africa	The Bill has generated significant controversy by substantially broadening the application of national security risk assessment to encompass the private security industry, NGO sector as well as the religious sphere. The Bill is focused on requiring the state security services to screen individuals who wish to establish NGOs, churches, or religious institutions. The Constitution ensures that all South Africans have the freedom to engage in political association, form trade unions, and practice their religion, among other rights.
Privacy International (PI)	Section 2A of the National Strategic Intelligence Act, 39 of 1994, is proposed to be amended, but the amendment raises concerns due to the open-ended nature of the definition referred to in Section 4(2)(a)(i) in the Bill, which only states “the detection and identification of any threat or potential threat to the national security of the Republic.” Consequently, this potentially grants the state the authority to vet any private individual or institution, including non-profit organizations and faith-based organizations. Recommendation: Establish a clear foundation for requesting security assessments. To mitigate these concerns and safeguard against the Agency's powers being employed as a political tool, it is strongly recommended that a clear legal foundation be established for requesting security competence assessments. The language should explicitly specify that such requests must be legally justified and based on specific and well-defined criteria.
Freedom of Religion South Africa (FOR SA)	People and institutions who generally are not threats to national security – and who do not have access to classified information and critical infrastructure – fall within the category of persons and institutions who must have a security clearance. Because the definitions of “national security”, “threat to national security” and “person or institution of a national security interest” are so wide, religious institutions, their leaders, employees, and members fall within the broad ambit of “persons or institutions of a national security interest”.
Louise Bick	The Bill is unclear as to what the purpose of said certificates will be in society. The concern of ramifications of these security certificates for civil society organisations, in particular those who generate, support, and/or express views that are contrary to the policies of the Government of the day, are of primary concern.
NPO Working Group	The power to conduct security betting on individuals and institutions can be abused if not properly regulated. The vetting process may not always be accurate, leading to false positives where innocent individuals and organisations are wrongly flagged as security risks. Implementing and maintaining a comprehensive security vetting system requires significant resources. This includes financial resources, personnel, and technological infrastructure.
DearSA (5 868 submissions)	Although not directly stated in terms of Clause 3 of the Bill, 5 868 individual submissions opposed the Bill based on an objection to “State security vetting private individuals, non-profit organisations, religious organisations, or businesses.”
Freedom of Religion South Africa (FOR SA)	The security vetting power of the State should be limited to those who have access to classified information and critical infrastructure of the State. In an open and democratic society based on fundamental rights and freedoms – which requires a transparent and accountable government – this is the only rational and acceptable purpose of security competence vetting and clearance.

Clause 4: Amendments to Clause 3 of the National Strategic Intelligence Act

Clause 4 of the Bill only refers to the Amendment of section 3 of Act 39 of 1994, as substituted by section 3 of Act 37 of 1998 and amended by section 4 of Act 11 of 2013. Only the DOD made submissions in this regard related to their view that sections of the National Strategic Intelligence Act, 39 of 1994, be amended in the Bill.

DOD

The limitation placed on the SANDF not to gather intelligence of a non-military nature manner overtly prevents the SANDF from fully executing its constitutional mandate to ensure national security. The nature of threats or emerging threats to national security in the land, air, maritime, space, and cyber domains are evolving and have become complex, ambiguous, volatile, and uncertain and have led to a blended phenomenon overlapping between military and non-military threats.

The National Defence Force shall, subject to section 3 of the National Strategic Intelligence Act, 39 of 1994 -

gather, correlate, evaluate, and use foreign military-related intelligence, and supply foreign military-related intelligence relating to national strategic intelligence to NICOC, [but the National Defence Force shall not gather intelligence of a non-military nature covertly]
gather, correlate, evaluate, and use domestic military intelligence [excluding covert collection, except] when employed for service referred to in section 227(1)[(e)] of the Constitution and under the conditions set out in section 3(2) of this Act, and supply such intelligence to NICOC.

Recommendation on Section 3(1)(a) of the National Strategic Intelligence Act, 39 of 1994: Other than the National Defence Force when employed for service referred to in section 227(1)[(a), (b) or (e)] of the Constitution[1] or when discharging the counter-intelligence responsibilities entrusted to its Intelligence Division.

In terms of Section 3(2) of the National Strategic Intelligence Act, 39 of 1994, the DOD notes that “The wording “….. the said Force has to prepare itself for possible employment…..” is interpreted that uninterrupted collection is allowed to be prepared, although the operation is not yet authorised by the cabinet. The continuous collection is required as part of preparation. All military operations/support are intelligence-driven and therefore necessitate an uninterrupted flow of timely intelligence. The actual deployment of the intervention/stabilising forces should then still be authorised by the cabinet which paves the way for intelligence-driven operations.”

Recommendation on Section 3(2) of the of the National Strategic Intelligence Act, 39 of 1994:

Notwithstanding subsection (1), the National Defence Force through its Intelligence Division may, to fulfil its constitutional mandate [whenever the President on the advice of the Minister of Defence is of the opinion that conditions are such that the said Force has to prepare its self for possible employment for service] referred to in section 227(1)[(e)] and Section 200(2) of the Constitution [and upon having been authorised by the coordinator for intelligence acting with the concurrence of Nicoc and the cabinet], gather domestic military intelligence in a covert manner [within the geographical area and the time-scales specified in such authorisation]

In terms of Section 2(2B), the SANDF is not addressed here, although it deals with any opportunity or potential opportunity or threat or potential threat to national security.

Recommendation for inclusion in the Bill:

The functions of the SANDF shall, subject to section 3 and the recommended amendment to bulk interception and in the prescribed manner-
gather, correlate, evaluate, and analyse foreign as well as domestic military-related intelligence, to

Identify any opportunity or potential opportunity or threat or potential threat to national security;
Supply intelligence regarding any such threat or opportunity to Nicoc;

Clause 5: NICOC

Clause 5 provides for the composition of the NICOC and administrative matters related to its functioning. The composition of NICOC includes the Directors-General of the Domestic and Foreign Intelligence Service. The Bill also provides that the budget of NICOC shall be appropriated as per the budget vote of the intelligence services.

ORGANISATION	COMMENT
Jane Duncan	Intelligence coordination, or the lack of it, has been a major weakness in recent times. The Expert Panel into the July 2021 Unrest was the latest in a series of reports that found that NICOC’s role in strategic intelligence coordination needed to be affirmed; yet NICOC as an organisation has lacked powers, as has the coordinator. The Bill fails to address this issue. NICOC as an entity needs to be given more of an independent organisational status, including by making the coordinator responsible for appointing members – which could be subject to the approval of the Minister but not a Ministerial responsibility – and allowing the coordinator to determine the organisational structure of NICOC, again with the approval of the Minister.
Bakgatla Ba Ga Lekhuleni Traditional House	The Minister’s powers of appointment of people who will assist NICOC must be limited by making sure that he/she does not entirely do this alone but with other people drawn from the committee.

ORGANISATION

COMMENT

Jane Duncan

Intelligence coordination, or the lack of it, has been a major weakness in recent times. The Expert Panel into the July 2021 Unrest was the latest in a series of reports that found that NICOC’s role in strategic intelligence coordination needed to be affirmed; yet NICOC as an organisation has lacked powers, as has the coordinator. The Bill fails to address this issue.

NICOC as an entity needs to be given more of an independent organisational status, including by making the coordinator responsible for appointing members – which could be subject to the approval of the Minister but not a Ministerial responsibility – and allowing the coordinator to determine the organisational structure of NICOC, again with the approval of the Minister.

Bakgatla Ba Ga Lekhuleni Traditional House

The Minister’s powers of appointment of people who will assist NICOC must be limited by making sure that he/she does not entirely do this alone but with other people drawn from the committee.

Clause 6: Ministerial regulations

Clause 6 enables the Minister to make regulations relating to information security and the protection of intelligence, coordination of the activities of the Intelligence structures established, protection of National Critical Information Infrastructures as well as the coordination of cybersecurity activities by the Agency. These regulations will be approved by the Minister after consultation with the JSCI. Regulations contemplated in section 6 of the National Strategic Intelligence Act, 39 of 1994, must be made 24 months after the commencement of the Act.

ORGANISATION	COMMENT
Freedom Under Law and the Ahmed Kathrada Foundation	The Bill fails to stipulate a reporting requirement in terms of which public organisations that have been the subject of a cyber-attack are required to disclose this fact to the public with international best practices.
DOD	This section deals with the issuing of regulations so that the purpose of this Act may be achieved. Section 6(c)(fE) of the Bill inter alia deals with the following: (a) the manner and form in which cybersecurity operations shall be conducted and coordinated in the Republic including the establishment of required technical capacities; (b) the manner and form in which national critical information infrastructure shall be identified, protected, and secured; (c) the manner and form in which former members of the Intelligence Services shall be structured and utilised within the Intelligence Services; (d) The manner and form in which Intelligence Services shall supply post-interception reporting to the Judge referred to in section 2(2)(B); The SANDF is not addressed here, although it forms part of the Intelligence Services. Recommendation for inclusion in the Bill: 6(e) In as far as these provisions may relate to the SANDF the Minister of Defence may issue its regulations.
Association of Muslim Accountants and Lawyers of South Africa	No specific reference to a clause, but the submission may have a reference to Clause 6. The legislation grants an excessive amount of discretionary power to the responsible Cabinet Minister. This is expressed in the imprecise and broad language of the Bill.

ORGANISATION

COMMENT

Freedom Under Law and the Ahmed Kathrada Foundation

The Bill fails to stipulate a reporting requirement in terms of which public organisations that have been the subject of a cyber-attack are required to disclose this fact to the public with international best practices.

DOD

This section deals with the issuing of regulations so that the purpose of this Act may be achieved. Section 6(c)(fE) of the Bill inter alia deals with the following:

(a) the manner and form in which cybersecurity operations shall be conducted and coordinated in the Republic including the establishment of required technical capacities;

(b) the manner and form in which national critical information infrastructure shall be identified, protected, and secured;

(c) the manner and form in which former members of the Intelligence Services shall be structured and utilised within the Intelligence Services;

(d) The manner and form in which Intelligence Services shall supply post-interception reporting to the Judge referred to in section 2(2)(B);

The SANDF is not addressed here, although it forms part of the Intelligence Services.

Recommendation for inclusion in the Bill: 6(e) In as far as these provisions may relate to the SANDF the Minister of Defence may issue its regulations.

Association of Muslim Accountants and Lawyers of South Africa

No specific reference to a clause, but the submission may have a reference to Clause 6.

The legislation grants an excessive amount of discretionary power to the responsible Cabinet Minister. This is expressed in the imprecise and broad language of the Bill.

Clause 11

Clause 11 of the Bill provides for the appointment, qualification for eligibility, and conditions of employment of the IGI. The President appoints the IGI nominated by the JSCI and the approval of the National Assembly of a resolution supported by two-thirds of the National Assembly members. The IGI may only be appointed subject to the issuance of a security clearance and must be South African citizens and fit and proper persons to hold such office and who have knowledge of intelligence. The IGI shall hold office for a term of five years and the term of office of the IGI is non-renewable.

ORGANISATION	COMMENT
Freedom Under Law and the Ahmed Kathrada Foundation	The Bill fails to ensure the independence of the IGI, the watchdog of intelligence agencies. The era of state capture made clear the need to hold state security to account. The Intelligence Oversight Act does not provide for an acting or deputy Inspector-General – an oversight that has resulted in the institution sitting leaderless between appointments. The Bill ought to remedy these defects (for example, by empowering the IG to enforce their decision).
Jane Duncan	The Inspector General’s office should be established with its infrastructure and budget, and it should be given legislated status.
	Recommendations of the Inspector General should be binding even if no agreement has been reached with the relevant agency.
	The Inspector General should determine the most appropriate organisational structure for the office.
	The Inspector General should have powers of appointment of staff in the office, rather than these powers resting with the Minister.
	The Inspector General should have direct, unmediated access to intelligence information, like the Australian Inspector General of Intelligence and Security.
	A position of deputy Inspector General should be created, and this person should have full powers to act as the Inspector General if the position is vacant.
AfriForum	AfriForum underscores the Bill’s failure to address longstanding issues related to oversight and accountability within the SSA. The lack of provisions to strengthen the independence of the IGI, coupled with historical challenges in preventing abuses, politicisation and corruption significant concerns. Our submission advocates for comprehensive reforms to establish a robust oversight framework and prevent the recurrence of past shortcomings.
Campaign for Free Expression	The Bill does not change the status, administration, or budget lines of the IGI, and fails to give it the independence it needs to do its essential job. The IGI must be given a status that ensures its independence by giving it authority over its budget and administration and removing accountability for these matters from the Agency.
OUTA	The Bill neglects to ensure the independence of the IGI, the overseer of intelligence agencies, and his or her capacity to enforce decisions. This undermines accountability.
Brian (via DearSA)	Without independent oversight, there is no one to control it…especially if it were to fall under the Minister. It must be made a Section 9 Institution remain independent of political interference and answer only to Parliament.
Dominique Pitot	One additional item that is needed is proper oversight by an independent and enabled authority that can identify and punish abuses of power. The Office of the Inspector General is one such option, that, given sufficient powers of monitoring and control, could reduce the unintended consequences of this weak legislation.
Heyns van der Merwe	Give the Office of the Inspector General the powers required to be a good watchdog on the intelligence actions performed as part of this.
Rustum (no surname provided)	The proposed investigative powers, including the scrutiny of financial records and private communications, raise serious concerns about government overreach and abuse of power. Without adequate oversight mechanisms and legal recourse for citizens, there is a significant risk of unchecked state intrusion into the lives of ordinary South Africans.
NPO Working Group	The Office of the IGI must be allowed to operate with the highest level of independence from all political interference so it can execute its responsibilities without fear or prejudice. The organ must also be allowed to oversee the Secret Service accounts and be obliged to give regular reports to Parliament.

Clause 16

Clause 16 of the Bill establishes the National Communications Centre (the Centre) which is responsible for the bulk interception services referred to in section 2(2B) referred to above. The Centre is constituted by its head and members and reports to the Director-General of the Agency.

ORGANISATION	COMMENT
Freedom Under Law and the Ahmed Kathrada Foundation	The Bill will serve to enhance the security agencies’ powers of mass surveillance through a National Communications Centre (NCC) with little meaningful oversight and none of the requisite protections for privacy and freedom of expression. In amaBhungane, the Constitutional Court declared that the NCC’s bulk surveillance operations in terms of the RICA Act were unlawful. More specifically, the Court held that the RICA Act only permitted ‘targeted’ surveillance (that is, the interception of a specific person’s communications, under specific circumstances) rather than the mass interception of many people’s communications. While the Bill is an attempt to the NCC’s operations (following amaBhungane15), it does not provide for the requisite protections for privacy and freedom of expression, nor meaningful oversight of the NCC. More specifically, the proposed nominal oversight by a judge appointed by the President (and advised by two ‘interception experts’) falls far short of the standards set by the Constitutional Court including sufficient independence of judges authorising surveillance, and the right to post-surveillance notification of any person whose communications have been intercepted.
Amabhungane	The Bill regulates the Centre – the institution that had been conducting bulk interception and which was declared to be operating unlawfully by the Constitutional Court. Although serving important crime-fighting needs, surveillance threatens the enjoyment of various human rights, including the privacy rights, freedom of expression (including press freedom), and freedom of association. For the reasons that follow, we believe that the Bill unequivocally infringes the rights to privacy and freedom of expression and would be declared unconstitutional if it were brought before the Constitutional Court.
	Bulk surveillance should be exposed to at least the same safeguards as targeted surveillance in South Africa. This has two consequences: The regulation proposed in the Bill is woefully inadequate. For ease of regulation, it makes sense for targeted and bulk surveillance to be addressed in the same piece of legislation.
	The surveillance governed by the Bill concerns foreign intelligence whereas Rica covers domestic intelligence. South Africa’s intelligence services have admitted that they ‘have no way of distinguishing between foreign and local signals when it conducted bulk surveillance’. We therefore make two recommendations: The regulation of bulk surveillance be withdrawn from the Bill and dramatically redrafted. The redrafted provisions be introduced as an amendment to RICA as opposed to the intelligence laws.
	The Constitutional Court found that section 2 could not serve as ‘authorisation for the practice of bulk surveillance’ and that the practice was therefore ‘unlawful and invalid’. The only thing the Bill introduces to this existing framework is to subject its collection to an application to a judge, two ‘advisory interception experts’, and the Centre responsible for supplying the relevant intelligence. This does not go far enough. First, there is no guidance on the appointment of the judge to oversee this practice. The judge is also to be appointed by the President – in clear contradiction to the Constitutional Court’s recommendation in amaBhungane and diminishing the independence that a judicial official in this role is required to portray. There is also no definition of who the ‘advisory interception experts’ are, what their qualifications have to be, and their terms of office. Further, that these experts are appointed by the Minister severely weakens their independence. It is also concerning that the power to make regulations given to the Minister includes, in the proposed s2(2B)(1)(fK), ‘the manner and form in which the Intelligence Services shall supply post-interception reporting to the Judge’.
	The Billgives power to the Minister to determine what information should be shared with the judge removes the judge’s ability to adjudicate fairly and is a dire threat to the independence of the oversight process.
	At a minimum, the Bill should comply with the European Court of Human Rights adapted Weber Principles and require that warrants contain the following elements: The grounds on which bulk interception may be authorised; The circumstances in which an individual’s communications may be intercepted; The procedure to be followed for granting authorisation; The procedures to be followed for selecting, examining, and using intercepted material; The precautions to be taken when communicating the material to other parties; The limits on the duration of interception, the storage of intercepted material, and the circumstances in which such material must be erased and destroyed; The procedures and modalities for supervision by an independent authority of compliance with the above safeguards and its powers to address non-compliance; h. The procedures for independent ex post facto review of such compliance and the powers vested in the competent body in addressing instances of non-compliance.
	Despite the Constitutional Court underlining the importance of some post-surveillance remedy in the amaBhungane judgment in respect of targeted surveillance, the Bill’s bulk surveillance regime includes no safeguards at this stage of the interception.
	The Bill would likely be found unconstitutional to the extent that it does not provide sufficient safeguards against the revealing of journalists’ sources.
	We appreciate the inclusion of a requirement for a post-surveillance notification. However, there are three key weaknesses in the Bill’s proposals: That the notification can be delayed indefinitely. That there is no express requirement that the decision to withhold a notification be reviewed. That there is no detail on the nature of the notification itself.
FW de Klerk Foundation	In the matter of Amabhungane Centre for Investigative Journalism and Another v Minister of Justice and Correctional Services and Others, the Constitutional Court held that the Regulation of Interception of Communications and Provision of Communication Related Information Act, 2002 was unconstitutional because it failed to provide post-surveillance notification to the person who had been the subject of the surveillance that they had been surveilled. The Bill contains the same failure and is, therefore, prima facie unconstitutional.
Intel Watch	The drafters of the Bill appear to have interpreted both Courts’ decisions as indicating that bulk interception activity is outlawed until such activities are provided for in law. This is an unfortunate oversimplification.
Intel Watch	While the Constitutional Court ultimately found that the practice of bulk surveillance was unlawful and invalid because section 2 of the National Strategic Intelligence Act, 39 of 1994, did not provide for it, this is not the only finding of significance: the Constitutional Court’s order relating to the provisions of RICA regarding targeted interception of communications would also have application in the drawing of legislation providing for bulk interception of communications. According to the Constitutional Court, RICA lacked provisions to ensure the structural, operational, and perceived independence of the designated judge. The same would be true of bulk communications interception. In its current form, the section in the Bill is ambiguous as to the role and nature of the “two communications experts”. The proposed amendment regarding bulk communications interception is also somewhat sparse when compared to the equivalent provision in RICA.
Afriforum	Our submission addresses the inadequacies in oversight of mass surveillance capabilities introduced by the Bill. The attempt to legalise the NCC’s operations lacks essential safeguards for privacy and freedom of expression. We argue that the proposed oversight mechanisms fall short of the standards set by the Constitutional Court, risking unchecked surveillance powers with insufficient protection against potential abuses.
*Anonymous*	In the current form, mass surveillance will be allowed. There is also the concern that data, conversation, and any material can be stored and later used to build up a case (for other reasons for which material was captured) by using material and intelligence gathered - for other reasons which had nothing to do with the original reasons for ‘spying’ / putting surveillance on the person/ party. The potential also exists that material could be ‘leaked’ to cause reputation damage or as an attempt to discredit an individual or organisation. I am therefore of the opinion that the Bill is misaligned with the Constitutional rights of citizens and the Constitutional Court Decision.
*Anonymous*	The absence of accountability and oversight (unaccountable power) –may lead South Africa becoming become a totalitarian state. Especially because there is no oversight by a current sitting, reputable senior high court judge(s) to scrutinise the reasons for surveillance. I think that the Bill must make provision that permission needs to be obtained from a sitting, reputable, and permanent senior high court judge(s) before anyone can be ‘spied’ upon / placed under surveillance / monitored. Thus the need to approach a high court. This will in my opinion be aligned with reasonable measures of oversight as well as be aligned with the Constitutional judgement on spying and surveillance.
Campaign for Free Expression	The legislation provides for insufficient oversight of bulk surveillance for the following reasons: Firstly, the retired judge who has to approve applications for bulk surveillance is appointed by the President, and this means it is a political, and not an independent, decision. The judge should be appointed either by the Chief Justice or another independent person or body. There is no mechanism for after-the-fact transparency to hold the Agency to account, as is the case in the RICA. There is no reason given for why bulk surveillance is being separated from other communications surveillance of individuals or organisations, as dealt with in RICA.
Fish Hoek Valley Ratepayers & Residents Association	Note: No reference to a specific clause, but below is a reference to Clause 16 of the Bill: Mass surveillance facilities in the NCC are unconstitutional as declared in the amaBhungane judgement. This bill seeks to allow for mass surveillance without any safeguards and with minimal oversight.
Freedom of Religion South Africa (FOR SA)	The Court held that the Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA) failure to provide for post-surveillance notification to persons who had been subject to surveillance was unconstitutional because it amounted to an unjustifiable infringement of their constitutional rights to privacy and access to justice. Provision should be made for a legal remedy where surveillance was conducted unlawfully
DearSA (15 916 submissions)	Although not directly stated in terms of Clause 16 of the Bill, 15 916 submissions in opposition to the Bill were received via the DearSA platform that related moreover to Clause 16 of the Bill. A total of 11 817 submissions noted their opposition to the Bill due to “my right to privacy” while 4 099 opposed the Bill in terms of “mass surveillance of all South Africans' communications”.

Clause 18

Clause 18 of the Bill provides for the establishment of SANAI as an Intelligence Training Academy. The functions of SANAI include the provision of training to the civilian intelligence community and that SANAI may establish training centers and may cooperate with any institution of higher learning to achieve its objectives. The accreditation and recognition of SANAI’s qualifications must be done with the provision of the National Qualifications Framework Act, 9 of 2008.

ORGANISATION	COMMENT
Transnet (Michelle Phillips)	The proposed amendment in Clause 18(1)(b) of the Draft Bill may create bias to the Agency as opposed to the Service. As a result, consideration should be given to having a reporting line to be directly to the Minister. It is recommended that the proposed amendment read as follows: “(b) The South African National Academy for Intelligence is a branch of the Agency and the head of the Academy reports to the Minister.”
Razia Razien	Provision must be made for the youth, veterans, and freedom fighters to be trained at SANAI and there must be recognition of prior learning.

ORGANISATION

COMMENT

Transnet
(Michelle Phillips)

The proposed amendment in Clause 18(1)(b) of the Draft Bill may create bias to the Agency as opposed to the Service. As a result, consideration should be given to having a reporting line to be directly to the Minister.

It is recommended that the proposed amendment read as follows:

“(b) The South African National Academy for Intelligence is a branch of the Agency and the head of the Academy reports to the Minister.”

Razia Razien

Provision must be made for the youth, veterans, and freedom fighters to be trained at SANAI and there must be recognition of prior learning.

Clause 23

Clause 23 of the Bill provides for the responsibilities for the management and leadership of the departments and government components to the Directors-General and Executive Directors, under the executive oversight of the Minister. The reference to the SSA is replaced by the Civilian Intelligence Service or relevant entities, as the case may be. All members of the Civilian Intelligence Service bear the same responsibilities.

ORGANISATION

COMMENT

Jane Duncan

Section 12 of the Intelligence Services Act which empowers the Minister, subject to the Act, to do or cause to be done all things which are necessary for the efficient superintendence, control, and functioning of the Agency. This is replaced in the Bill with s.23, which states that: ‘…The Minister may subject to this Act, do or cause to be done all things which are necessary for the efficient superintendence, control, and functioning of the [Agency] Intelligence Services, Centre or Academy.’ This means that the current, and problematic, provision has merely been restated. This provision should be amended to ensure that the Minister is confined to executive oversight, which could be achieved by retaining the provision around efficient superintendence but removing the references to control and functioning of the Agency, Services, Centre, or Academy, and including a clause expressly forbidding the Minister from becoming involved in operational matters.

Clause 45

Clause 45 of the Bill amends section 36 of the Intelligence Services Act, 2002.

ORGANISATION	COMMENT
DOD	According to Section 203 of the Constitution (1996), the correct term is a state of national defence and not in the event of war. Recommendation for the Bill for Section 45(1): The Minister may, in the event of [war] a state of national defence, or when a state of emergency exists and having regard to the requirements of the Civilian Intelligence Services second any member for service or training in the South African National Defence Force or the South African Police Service.

ORGANISATION

COMMENT

DOD

According to Section 203 of the Constitution (1996), the correct term is a state of national defence and not in the event of war.

Recommendation for the Bill for Section 45(1):

The Minister may, in the event of [war] a state of national defence, or when a state of emergency exists and having regard to the requirements of the Civilian Intelligence Services second any member for service or training in the South African National Defence Force or the South African Police Service.

3.4.12 Classification of the Bill

ORGANISATION	COMMENT
Bakgatla Ba Ga Lekhuleni Traditional House	Denying traditional leadership an opportunity to partake in this exercise is a misnomer of the first order and a recipe for failure of the Intelligence system as a whole.

OTHER MATTERS RAISED IN WRITTEN SUBMISSIONS

The submissions below provide general comments on the Bill and may not relate to a specific clause of the Bill. However, these broader submissions require consideration to determine whether further clauses require amendments and/or whether the Bill passes legislative muster.

ORGANISATION	COMMENT
Freedom Under Law and the Ahmed Kathrada Foundation	The Bill fails to provide safeguards to prevent the abuse of secret funds (a key element of state capture at the state security agency). This opens the door to continued illegal expenditure and mismanagement. The Bill therefore ought to ensure that the Auditor-General has full access to all of the SSA’s internal financial documents for this purpose
Free Market Foundation	The Bill does not specify any offence or sanction for being classified as a ‘threat to national security.’ The legal implication of being regarded as such is therefore unclear.
Jane Duncan	While the Bill is welcomed, it is concerning that these laws are being amended in the absence of a revised National Security Strategy. The National Security Strategy and architectural review need to be completed as soon as possible as they have been deprioritised for too long. The architectural review needs to include a review of the appropriateness of the decision to locate the Agency and the Service in the Presidency, as well as the appropriateness of having them report to the Minister in the Presidency as opposed to a dedicated Minister of Intelligence.
Jane Duncan	The Bill is silent on reforms that are needed for the governance of the Secret Services account and the Security Services Special account. The Security Services Special Account Act, 81 of 1969, and the Secret Services Act, 56 of 1978, should be repealed.
Malan Vorster	The Bill violates the most basic International human rights: As stated in Article 58 of the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (1958), that apply under all circumstances, even under threat of “national security”: “No state party shall, even in time of emergency threatening the life of the nation, derogate from the Covenant’s guarantees of the right to life; freedom from torture, cruel, inhuman or degrading treatment or punishment, and from medical or scientific experimentation without free consent; … and freedom of thought, conscience and religion. These rights are not under any conditions even for the asserted purpose of preserving the life of the nation.”
Malan Vorster	The Bill violates the Constitution of South Africa: The Bill of Rights in the Constitution of South Africa puts a very strong emphasis on freedom, equality, and protection against discrimination. Yet, the Bill does the following: In terms of Section 1 of the Constitution, the Bill tramples on equality and removes human rights and freedoms by forcing people to undergo security clearance for being arbitrarily labelled a person of National Security Interest. In terms of Section 3 of the Constitution, People of all religions and all civil societies are equally entitled to the rights, privileges, and benefits of citizenship. The Bill violates the Constitution by insisting on vetting such people. In terms of Section 7 of the Constitution, the Bill is an attempt by the state to trample on people’s dignity, equality, and freedom by forcing them to undergo Security clearance for running religious and civil organisations. In terms of Section 9 of the Constitution, the Bill tramples on equality by unfairly discriminating against people in religious or nonprofit organisations. In terms of Section 10 of the Constitution, the Bill has no regard for human dignity as people need security clearance to form religious and civil associations. In terms of Section 12 of the Constitution, the Bill has the potential to be abused to violate the freedom and security of those who fail to qualify for security clearance. In terms of Section 14 of the Constitution, the Bill violates the privacy of people by allowing for all sorts of surveillance. In terms of Section 15 of the Constitution, the Bill violates the right to freedom of religion by requiring leaders of churches and religious organizations to undergo security clearance. In terms of Section 16 of the Constitution, the Bill violates the right to freedom of expression by arbitrarily labelling people as persons of National security interest. In terms of Section 17 of the Constitution, the Bill violates the right to freedom of assembly by arbitrarily labelling people as persons of National security interest and then requiring them to undergo security clearance. In terms of Section 18 of the Constitution, the Bill violates the right to freedom of association by arbitrarily labelling people as persons of National security interest and then requiring them to undergo security clearance In terms of Section 14 of the Constitution, the Bill violates the right to freedom of movement when someone is arbitrarily labelled as a person of National security interest. In terms of Section 31 of the Constitution, the Bill denies people the right to enjoy their culture and practice their religion by arbitrarily labelling people as persons of National security interest.
Amabhungane	There were multiple reasons for the SSA’s facilitation of state capture. Beyond the separation of the domestic and international intelligence services, none of these have been addressed in this Bill: Failure to ensure sufficiently independent appointment of intelligence officials. We recommend that the Committee investigate alternative appointment options. Failure to create meaningful and effective oversight mechanisms. We recommend that the Bill be sent for considerable redrafting to ensure that the IGI is given sufficient independence and capacity to exercise its crucial oversight role. Failure to create safeguards to protect against abuse of the secret funds. We recommend that the Bill be redrafted to adequately confer independence and capacity on the JSCI and the Auditor-General.
	The IGI and the JSCI are seriously hampered by both a lack of budget and the control of their budget by the executive. We recommend that the Bill be withdrawn based on its failure to strengthen the oversight mechanisms and that research and innovative thinking be applied to create a system that will ensure effective parliamentary and auditing oversight.
	The Bill makes no amendments to the Secret Services Act of 1978 and its provision of a Secret Services Account. Our recommendation is that no amendment to the intelligence legislation can be contemplated without wholesale amendments to the funding of the services, the oversight mechanisms – primarily the IGI – and accountability of spending.
FW de Klerk Foundation	The Bill will directly affect various constitutional rights, including but not limited to, the privacy rights (section 14), freedom of expression (section 16), political rights (section 19), freedom of occupation and trade (section 22), and access to justice (sections 34 and 38 of the Constitution).
Intel Watch	Intel Watch referred to the benchmark studies conducted and a pointed out that in the UK, vetting is conducted by United Kingdom Security Vetting. Significantly, this body is separate from the security services. Intel Watch referred to differences between the proposed Bill and how other countries built in safeguards in their legislation to prevent an abuse of power around vetting. Intel Watch therefore concludes that the amendment to the vetting mandate is not in line with international practice. The amendment also appears to conflate the process of vetting with other forms of investigation.
	The Bill fails to address the following matters raised by the HLRP and the Commission on State Capture: Measures to strengthen the Office of the IGI. Measures to allow the IGI greater access to classified information and the activities of the intelligence services. Measures to prevent interference by the Minister in charge of intelligence and the President in the operations of the intelligence services. Measures to give adequate access and top security clearance to certain staff at the Auditor General such that they may audit the intelligence services more effectively. Measures to enhance the oversight roles of the IGI, the Auditor General, and the JSCI to promote greater transparency.
	Intel Watch made a substantive additional submission on practical considerations and accompanying recommendations. This includes further expansion of matters covered in their submission such as circular reference errors and concerns around definitions. It also highlights broader concerns with the Bill such as cybersecurity coordination, and the prevention of interference with oversight processes and secret accounts.
Campaign for Free Expression	The bill does very little to address oversight of secret funds. A methodology for ensuring accountability and oversight while taking cognisance of security issues should be hammered out with the Office of the Auditor-General, whose task it is to provide such insight
OUTA	The principles as set out in section 198 of the Constitution are proffered as a guideline. The items identified in the section, although aligned with general and accepted notions of human rights and social justice, together with actions deemed inconsistent thereto, are left open for mis/interpretation. For example, Civic protests and demonstrations are acceptable activities within any democracy and are also enshrined in the Constitution under section 16 and section 17. The Agency can deem any protest or demonstration as being inconsistent with the notions of peace, harmony, and being free from fear.
	The Bill fails to implement measures to prevent the abuse of secret funds, reminiscent of the state capture era, risking illegal expenditure and mismanagement of funds from the secret service account.
	Repeated instances of vagueness in the term “opportunity or potential opportunity”, leaving scope for misinterpretation and broad application, with severe consequences should a person or institution be deemed to create such an “opportunity or potential opportunity”. This sentence is inserted no less than seven times in the National Strategic Intelligence Act, 39 of 1994, by the following sections: 7.1.1. Section 1(f), 7.1.2. Section 1(h), 7.1.3. Section 1(j), 7.1.4. Section 1(n), 7.1.5. Section 1(o), 7.1.6. Section 1(p), and 7.1.7. Section 2(a)(i).
Several submissions via DearSA	Several submissions via DearSA pointed to the Bill not being aligned with various provisions in the Constitution, including the following sections/references: Section 14 as it relates to the right to privacy. Section 16 as it relates to the right to freedom of expression. Section 15 as it relates to freedom of religion. Section 18 as it relates to Freedom of association. Section 19 as it relates to the right to form, join, and campaign for a political party. Section 21 as it relates to freedom of movement.
Chris Mkhize	Recruitment and training practices to ensure qualified personnel.
Chris Mkhize	Senior officials and data collectors should also be subjected to discipline for failure to execute their responsibilities promptly and professionally.
Privacy International (PI)	Concerns around oversight: There are currently no bodies providing oversight to the State Security Agency or the designated judge responsible for authorisations in the Bill. Additionally, there are no specific reporting obligations or periodic reviews in place. Recommendations: Introduce measures to ensure the independence of the oversight body. Strengthen the powers of the inspector general as the oversight authority. Enhance financial oversight of the SSA. Implement explicit transparency obligations for intelligence agencies.
Privacy International (PI)	The proposed Bill is deficient in establishing a post-surveillance notification regime, a critical aspect underscored by the Constitutional Court. We recommend the Parliament amend the proposed Bill to introduce a post-notification regime in compliance with international human rights standards.
Sonke Gender Justice	Sonke attended the Public Hearing on the Bill held in Cape Town on the 7th of February at the Belthorn Recreation Centre in Athlone. We would like to put on record the repeated complaints from a layperson representing their communities. Several oral submissions indicated a failure to provide community education on the Bill so that members of the public are equipped to make informed decisions on how or whether to support the Bill. The Bill is best understood by more policy skilled persons and civil society organisations with sufficient exposure to understanding the legislation process. This failure to adequately prepare the public goes against South Africa’s Constitutional ideals.
Louise Bick	I respectfully submit that said extension [for written submissions] was insufficient. This does not constitute effective public engagement as defined in sections 59(1) and 72(1) of the Constitution and, given the prescribed period, allows only for the provision of broadly framed submissions.
Louise Bick	The Bill contravenes too many of the fundamental rights set out in Chapter 2 of the Constitution, including privacy (section 14); the right to freedom of conscience, religion, thought, belief, and opinion (Section 15(1)); freedom of expression, in particular, to receive and impart information and ideas (section 16(1)(b)); freedom of association (section 18); the right to form, join and maintain organs of civil society (section 31(b)); access to information rights (section 32) and the rights to just administrative (section 33) of the Bill of Rights. Ultimately, the President, in consideration of the constitutionality of the Bill as provided for in section 84(2)(b), (c) read with section 121(1) of the Constitution.
Freedom of Religion South Africa (FOR SA)	Based on the outcome of the security competence test, they may be issued with or denied a security clearance certificate. 41 The consequences of failing to obtain a certificate if one is a person or institution of national security interest, are unclear. The implied risk of failing to obtain a security clearance certificate is that a person or institution will no longer be allowed to continue to operate. This is made worse by the fact that neither the Bill nor the three principal Acts it intends to amend, allows for reasons to be requested or given when security clearance is denied.
Nozuko Pikoli Chairperson: Intelligence Council on Conditions of Service	The Intelligence Council on Conditions of Service (ICCS) has submitted proposals for immediate consideration to the JSCI regarding the Bill. Established under the Intelligence Services Act, 65 of 2002, the ICCS serves as an advisory body to the Minister, addressing the challenges faced by members of the Intelligence Community. Before the enactment of the Intelligence Services Act, members of the Intelligence Community lacked protection under the South African Labour Relations Act (LRA) and fair basic conditions of service outlined in the Constitution. The ICCS's functions, as outlined in Section 22 (3) of the Intelligence Services Act, making recommendations on policy development, human resource matters, salary, and benefit improvements, promoting effective performance standards, conducting research, reviewing policies, and monitoring their implementation. The ICCS aims to ensure fair treatment and protection for members of the Intelligence Community. Currently, the Intelligence Council on Conditions of Service (ICCS) has two Councillors appointed for a three-year term, with the process for appointing the third Councillor ongoing. The Council has identified several critical areas requiring immediate attention to establish a strong foundation for effectiveness and community impact. The Bill process presents an opportunity for the Council to propose measures to enhance its stability and effectiveness. Consequently, the Council submits four proposals to the JSCI for consideration: Rename the ICCS to the Intelligence Services Council (ISC) as per the original name in the Intelligence Services Act, 65 of 2002, aligning with a recommendation from the President’s HLRP to better reflect the Council's mandate. Legislate for the Council to formally submit reports to the JSCI at least twice a year, ensuring transparency and accountability in policy implementation within the Intelligence Community. Legislate for the Council to have the mandate to consult with the Treasury Department regarding conditions of service, salaries, allowances, and benefits unique to the Intelligence community, enhancing the Council's effectiveness in advocating for fair improvements. Amend legislation to extend the term of Councillor appointments to five years instead of the current three-year term, aligning with a recommendation from the President’s HLRP to ensure continuity and stability in the Council's operations.
Anthoni van Nieuwkerk	Any design of a structure for intelligence gathering and counterintelligence must be underpinned and guided by a prior, wider, and integrated philosophy of national security. Practically, a national security policy framework followed by a national security strategy is required to contextualise, anchor, and guide the establishment of a civilian intelligence service. The current process of de-establishing SSA and re-establishing a civilian (not state) intelligence service lacks this basic building block of national security, opening the door for a technical process that might be manipulated and politicised yet again. National Security Policy (NSP) has a present and future role, outlining the core interests of the nation and setting guidelines for addressing current and prospective threats and opportunities. Normally, NSPs are hierarchically superior to other subordinate security policies. It seeks to integrate and coordinate the contributions of national security actors in response to the interests and threats deemed most important.
DOD	The reform of the General Intelligence Laws Amendment Act, 11 of 2013, was conducted without the involvement of the Department of Defence. As a result, Defence Intelligence was tasked at a very late stage to provide inputs on the Bill. A South African National Defence Force (SANDF) Reform Committee on the Bill was constituted to provide inputs for the necessary reform from the perspective of the SANDF. The SANDF Reform Committee included other Services and Divisions.
DOD	The Bill excludes the role of the SANDF, however, there are some common areas of overlapping cooperation that impact on the SANDF and where the SANDF can contribute towards. The SANDF is limited in terms of conducting continuous domestic military collection to safeguard the Republic, its citizens, and infrastructure as captured in Section 3(2) of the National Strategic Intelligence Act, 39 of 1994. The DOD notes that the above should also be seen in the context of Chapter 6 of the Defecne Act, 42 of 2002, which states that the Intelligence Division must, subject to the National Strategic Intelligence Act, 39 of 1994, gather, correlate, evaluate and use (a) strategic intelligence ….[and] operational intelligence…

CONCLUSION

This report provided an overview of inputs made during the public participation process. Through a methodical approach, the report captured the most pertinent issues raised revealing a notable convergence in concerns. Chief among these concerns was the ambiguous definitions that were purported to be susceptible to abuse. Additionally, there was apprehension surrounding the proposed mandatory vetting, which was seen to potentially extend to entities such as NGOs and religious organisations, and a lack of clarity on the consequences of failing to obtain a security competence certificate. Moreover, the provisions regarding bulk interception and the lack of adequate safeguards drew criticism, rendering the Bill inconsistent with the ruling of the Constitutional Court.

Other areas of concern emerging from submissions included the need for NICOC and IGI to be independent with their respective budgets earmarked for their exclusive use. The need for oversight of secret funds to be accommodated in the Bill as well as the need for the prioritisation of the National Security Strategy. In summary, the inputs underscored a range of pressing issues within the Bill, demanding careful consideration and potentially significant revisions to address the concerns raised.

Report to be noted.

[1] Analysis note: The submission by the DOD refers only to their requirement to for intelligence collection when the SANDF is employed in terms of Section 227 of the Constitution. However, the SANDF can also be deployed domestically by the Minister of Defence for selected purposes under Section 18 of the 2002 Defence Act, including for border safeguarding. Should the Committee find the need to address SANDF intelligence collection capabilities during domestic deployments, consideration should also be given the deployments under Section 18 of the 2002 Defence Act.

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