General Intelligence Laws Amendment Bill (GILAB): adoption

Meeting report

The Chairperson greeted the attendees and welcomed everyone to the meeting. He said it was time to start as it was 14:00 on the dot. He took the opportunity to formally welcome everyone and extended gratitude to all present, greeting them warmly. He noted that the meeting was a continuation of their previous meeting and stated that they would be considering the report from the Committee and also the C-list. He mentioned that if they were able to address the identified hurdle, so they could proceed. He asked the Committee Secretary for confirmation on whether enough Members were present to make decisions.

The Committee Secretary responded and confirmed that there were enough Members on the platform.

Apologies

The Committee Secretariat reported that apologies had been received from Ms C Labuschagne (DA, Western Cape) and Mr R Badenhorst (DA, Western Cape), but assured Members that the Committee could proceed as there were sufficient Members present.

The Chairperson thanked the Committee Secretary and suggested moving to the agenda for the day. He stated that the first two items had been dealt with and the next item would be the legal opinion by the parliamentary legal advisors. This would be followed by a clause-by-clause consideration of the Bill, the consideration and adoption of the Committee’s report, the consideration and adoption of the minutes, and finally, closing remarks by the Chairperson. He acknowledged that there might be some changes to the agenda with the legal opinion and invited the legal advisor to present the legal opinion.

Legal Advice on the General Intelligence Laws Amendment Bill [B40-2023]

Mr Nathi Mjenxane, Parliamentary Legal Advisor, provided legal advice on the General Intelligence Laws Amendment Bill.

Mr Mjenxane began by reminding the Committee that, in their meeting held the previous afternoon, it was resolved that the legal advisors should advise on the crafting of the C-list to include two matters: the issue of the Deputy Chairperson of the Joint Standing Committee on Intelligence and aligning the reporting period of the Joint Standing Committee on Intelligence with the rest of Parliament’s reporting periods.

He explained that while undertaking background research for drafting, the legal team encountered an issue that affected the Committee's instructions and led to the current legal opinion. He proceeded to summarise the opinion and invited questions from Members.

In his opinion, Mr Mjenxane noted that the Bill, referred from the National Assembly, was being considered under Section 75 of the Constitution, which deals with bills that do not affect provinces. He mentioned that the Committee had adopted the Public Participation Report based on extensive consultations, including responses from the State Security Agency led by its Minister.

Mr Mjenxane emphasised that the power of the Committee to make legislation must align with the Constitution, highlighting the importance of public participation as mandated by Section 72 of the Constitution. He referred to Section 44, which vests legislative authority in Parliament and allows the National Council of Provinces (NCOP) to consider legislation passed by the National Assembly.

He also pointed out that the Committee must seek the Council's permission to amend aspects of the Bill that were not initially part of it. He stressed that crafting amendments must be done strictly in compliance with the Constitution.

Mr Mjenxane noted the constitutional obligation to facilitate meaningful public involvement in the legislative process. He cited several court judgments, including the Mogale judgement, affirming the necessity of public participation and the need for Parliament to consider its outcomes when making laws. He referenced specific rules and provisions, including NCOP Rule 177 and relevant sections of the Constitution, to support the Committee's legislative process and the importance of adhering to constitutional guidelines.

He emphasised that public participation is crucial. He stressed the importance of this even within the context of the amendments the Committee has resolved. He referenced the Mogale judgement, where the Constitutional Court held that Parliament has the discretion to determine the manner in which it must fulfil its obligation and must apply its mind to decide matters related to public policy.

Continuing with the presentation of the legal opinion, Mr Mjenxane talked about a decision where a judge noted that all parties interested in legislation should feel they have a real opportunity to have their say. This ensures that citizens are taken seriously, and their views are considered meaningfully. The objective is both symbolic and practical, demonstrating respect for concerned citizens and providing legislators with all inputs to produce the best possible law.

He reiterated that the final decision on lawmaking rests with the Members of Parliament, but it must be greatly influenced by the process of public participation. Therefore, while the Committee has the power to make laws and amend legislation under Section 44, it must be informed by public participation in line with the Constitutional Court's sentiments.

Mr Mjenxane explained that, regarding the Committee's inquiry into other aspects of legislation not included in the referred Bill, the NCOP rules grant the Committee this authority. However, permission must be sought from the Council before such amendments can be made. He outlined the options available to the Committee, including applying to the Council for permission. If granted, the Committee could proceed with developing the amendments; if not, the Committee could consider not making amendments due to time constraints and the upcoming recess.

Finally, he noted that if the Committee resolves not to pursue amendments, the Bill could pass through the Committee and be sent to the President for assent under section 75. If amendments are made, the Bill would be referred back to the National Assembly for approval or rejection of the proposed amendments. He concluded by summarising the advice and thanking the Committee.

(see attached)

Discussion

The Chairperson thanked the legal advisor for briefing the Committee on the sought opinion. He announced that he would now open the floor for questions from Members. Simultaneously, he mentioned they would address the options presented by the legal advisor. He asked if any Members had clarity-seeking questions regarding the opinion of the parliamentary legal advisor.

Ms S Shaikh (ANC, Limpopo) commented that the presentation was clear and well understood.

The Chairperson acknowledged her comment and emphasised the critical nature of the options on the table. He discussed the possibility of seeking permission from the House to address certain aspects or deferring to the seventh administration. He highlighted that if they chose the latter, they would only adopt the report if they decided to pass the Bill without amendments.

Ms Shaikh opined that the Chairperson's approach would be more prudent. She noted that while the legal advisor's presentation covered salient matters, she suggested that the Committee adopt the Bill and defer some raised issues to the seventh administration.

Ms C Labuschagne (DA, Western Cape) appreciated the knowledge about the Bill's process. She acknowledged the importance of amending the Bill to include the Deputy Chairperson of the JSCI but considered the time constraints. She agreed with the Adhoc Committee and the parties involved in the National Assembly, suggesting the possibility of adopting the Bill without amendments and reviewing it in the future for necessary adjustments.

Mr C Dodovu (ANC, North West) voiced support for previous speakers and emphasised the importance of making necessary amendments to the Bill. He highlighted the significance of public participation and the need to address issues raised by the public and the courts. He underscored the importance of addressing issues like the Deputy Chairperson and reporting mechanisms, suggesting that Parliament take them up in the future. He concluded by expressing his belief that the current version of the Bill should be adopted.

Mr R Badenhorst (DA, Western Cape) thanked the administration and legal advisors for presenting two options. He agreed with previous statements that the current version of the Bill is the best possible given the time constraints. He opposed sending the Bill back for further consideration, as it could complicate the process. He expressed his agreement with adopting the current version of the Bill.

Ms Z Ncitha (ANC, Eastern Cape) expressed gratitude for the support provided by the technical team throughout the process. She commended the efforts made in public participation and the development of reports reflecting the insights gained. Despite the challenges of dealing with the Bill at the last minute, she expressed confidence that critical issues raised would be addressed in the Committee Legacy Report. She highlighted the crucial role the parliamentary legal advisor played in guiding the Committee through the process without faltering.

Mr S Du Toit (FF+, North West) appreciated the advice provided by the legal adviser. He raised a significant concern regarding the potential impact of the Bill on freedom of religion, particularly regarding the vetting of churches and non-governmental organisations (NGOs). He emphasised the importance of not regulating religion as a whole, stating that such actions could infringe upon religious freedom. While acknowledging the need to address unlawful behaviour by religious leaders, he argued against the vetting of religious institutions and NGOs, considering it a step too far. He asserted that this aspect of the Bill should not be agreed upon or supported.

The Chairperson noted that the version of the Bill referred to the Committee did not include the vetting of religious and faith organisations due to public intervention and feedback during the processing of the matter. Therefore, it was not included in the current version being dealt with. He explained that the prevailing sentiment suggested deferring the outlined issues that might have necessitated seeking permission from the National Council of Provinces to the seventh administration, where they would form part of the legacy report. He clarified that this included not only those specific issues raised during public discussions but also considerations given to presidential guidance and the importance of public involvement in lawmaking, as demonstrated by various jurisdictions. Consequently, the Committee opted to adopt the Bill as received from the National Assembly. This resolution was then presented to the Committee Members, who were asked to indicate their agreement by raising their hand using the corresponding option.

Voting: The Committee Secretariat informed the Chairperson that eight Members had raised their hands to support the option presented, although formal voting was not required. She stated that all Member inputs would be considered as an agreement by the Committee.

The Chairperson acknowledged this, expressing gratitude and noting there was no need to call for objections or abstentions. He emphasised the importance of following due process, especially considering the possibility of legal challenges, particularly in light of the significance placed on public involvement in lawmaking by legal advisors. With that, he directed the agenda to proceed, removing the item regarding the C-list and moving on to discuss the Committee report.

Report of the Ad Hoc Committee on General Intelligence Laws Amendment Bill on the General Intelligence Laws Amendment Bill [B40B – 2023] (Sec 75), dated 14 May 2024

The Committee Secretariat, addressing the Chairperson, stated gratitude for the opportunity to present the report of the Ad Hoc Committee on the General Intelligence Laws Amendment Bill (GILAB) dated 14 May 2024. She proceeded to provide an overview of the report, emphasising that it encapsulates all activities of the Ad Hoc Committee from its inception to the current stage. She explained that the Bill's purpose is to amend the Strategic Intelligence Act of 1994, the Intelligence Services Act of 2002, and the Intelligence Services Oversight Act of 1994 to introduce certain amendments and insertions. These amendments encompass various aspects, including the functions of intelligence service structures and matters related to former members of the intelligence services.

Regarding the legislative process, the report detailed the steps followed by the Committee, including requests for inputs from provinces and the subsequent public participation process, which involved public hearings and the receipt of written submissions. The Committee Secretary highlighted oral submissions received from organisations and individuals and deliberations with the Minister and the State Security Agency.

On 14 May, the Committee continued deliberations and reached a consensus to refer certain matters to the Seventh Parliament for processing, such as amendments to the Secret Services Act of 1978 and the appointment of key positions within the Joint Committee on Intelligence (JCI). The report concludes by stating the Committee's agreement to the Bill and its submission for consideration by the House.

The Committee Secretariat raised a procedural matter, requesting the Chairperson to call for a mover to adopt the report, followed by a seconder, and then consider it the final decision of the Committee.

Mr Dodovu moved to adopt the report, which was supported by Ms Ncitha.

The Chairperson acknowledged the unanimous support from all Committee Members for adopting the report without any dissent. Consequently, the Committee will recommend the report to the House for adoption.

https://pmg.org.za/tabled-committee-report/5847/

Committee Minutes

Minutes dated 04 April 2024

The Committee Secretariat informed the Chairperson that there were four sets of minutes for consideration and adoption that day. However, the minutes from the previous day's meeting were not yet ready, which also affected the readiness of that day's minutes for the following day. Considering the adoption of the report that day might mean that there would not be a meeting the following day. Instead, she planned to send the minutes through the WhatsApp group for Members to review, and the Chairperson would then call for their consideration and adoption at that time.

Ms L Beebee (ANC, KZN) moved to adopt the minutes. Ms Shaikh seconded the motion but requested a correction to her surname.

The minutes were then adopted with the amendments.

Minutes dated 23 April 2024

Ms Ncitha moved to adopt the minutes.

Ms Beebee seconded the motion.

The minutes were duly adopted.

The Committee Secretariat then concluded the section on the adoption of minutes and requested confirmation from Members that the two remaining sets could be adopted via WhatsApp. Members agreed to this approach.

Farewell Messages

This is a summary of the farewell messages exchanged towards the end of the meeting. Some of the participants are not mentioned but all Members who contributed have been mentioned as follows:

Mr Dodovu thanked the Chairperson for facilitating the process and guiding the Committee through the Bill, commending his leadership.

The Chairperson appreciated the acknowledgement and attributed his effectiveness to the cooperation of the Members. He then opened the floor for closing remarks or farewell speeches.

Mr Du Toit stated it was an honour to be part of the Committee and appreciated the leadership. He mentioned that public participation lacked diversity, but it was the communities' responsibility to engage.

Mr R Badenhorst (DA, Western Cape) thanked the Chairperson, colleagues, and Committee staff for their excellent work, expressing his appreciation.

Ms Beebee apologised for not displaying her video due to technical issues and expressed regret for missing some public hearings due to illness. She noted that participating in virtual meetings had empowered her and thanked the Chairperson and administrative staff for their support.

Ms Shaikh thanked the Chairperson for the opportunity to serve on the Committee and acknowledged the support from the National Council of Provinces (NCOP) and legal services. She expressed gratitude for the journey and the Chairperson's leadership.

Ms Ncitha remarked that her colleagues had already expressed much of what she wanted to say. She thanked their organisations for deploying them to the Ad Hoc Committee, noting the Committee Members' maturity in understanding their responsibilities. She appreciated the cooperation of the officials, even under strenuous conditions, and expressed gratitude for those who documented their work. She acknowledged the challenges they faced but noted they were able to work through their differences and achieve the necessary results. She concluded by thanking everyone and praised the Chairperson for being a very good captain.

The Chairperson expressed his gratitude to the Members, acknowledging the important changes they had undergone, particularly in restructuring the intelligence services as identified by the fifth administration and the High-Level Review Panel. He noted that their work would be historically significant and praised the Committee for their diligent work, commitment, and sacrifice. He appreciated the Committee staff, predicting a warm reception for the incoming Seventh Administration team. He concluded by hoping that the report, once presented to the plenary on the 16th and sent to the President, would solidify the legacy of both the Fourth and Sixth administrations. He then invited any final remarks from the Secretary.

The Committee Secretariat expressed her gratitude to the Chairperson, acknowledging his leadership which made it easier for the Committee to provide procedural, content, and legal advice. She extended her thanks to the Members for their understanding and availability, which facilitated smooth communication and logistics. She praised the entire team for their dedication and highlighted the support of their manager, who ensured smooth operations. She concluded by thanking the Chairperson again and handed over to her colleagues for their remarks.

The Content Advisor expressed her gratitude to the Chairperson, Members of the Committee, and her colleagues, noting it was an honour to serve on the Committee.

The legal advisor, Mr Nathi Mjenxane, echoed the sentiments of his colleagues, stating it was a pleasure to serve the Committee and looked forward to working with Members in the next Parliament.

Mr Faith Ndenze, from the media office, thanked the Chairperson for his accessibility and quick approvals, appreciated the ease of working with Committee Members, and acknowledged her colleagues.

The Chairperson confirmed they had reached the end of their meeting. He mentioned the final task of presenting the report to the plenary on 16 May 2024, expressing hope for a warm reception from the Members. He then formally closed the meeting, thanking the Members and the team.

Meeting adjourned.