General Intelligence Laws Amendment Bill [B25-2011]: briefing by Minister of State Security

Meeting report

Committee Programme
The Chairperson advised that the Committee’s term of office had been extended to 8 June 2012.  The Chief Whip had announced that the week commencing 19 March 2012 would be a committee week instead of a constituency week.  Application had been made for the Committee to meet on 20 March 2012.  After discussion amongst the Members, it was agreed to change the date of the meeting to 23 March 2012.  The Chairperson listed the dates of the Committee meetings.  The following meeting of the Committee was scheduled for 28 February 2012.

Mr D Maynier (DA) suggested that the Committee programme included a briefing on the organisational structure and mandates of the various entities in the security cluster.  Not all Members of the Committee were Members of the Joint Standing Committee on Intelligence and were therefore at a disadvantage.  He suggested that the Committee invited the Inspector-General on Intelligence to submit a briefing on her perspective on the Bill.  He requested a copy of the report of the legislative review task team that was issued in 2005.  He expected that the Committee would receive submissions from the public on the Bill and assumed that the Committee would discuss holding public hearings.

Briefing by the Minister of State Security on the General Intelligence Laws Amendment Bill
The Hon Siyabonga Cwele, Minister of Safety and Security presented the briefing to the Committee (see attached document).

The purpose of the General Intelligence Laws Amendment Bill was to effect technical amendments to the National Strategic Intelligence Act (Act 39 of 1994), the Intelligence Services Oversight Act (Act 40 of 1994) and the Intelligence Services Act (Act 65 of 2002) and to repeal the Electronic Communications Security (Pty) Ltd Act (Act 25 of 2002).  The relevant legislation must be considered in conjunction with the Bill.

The transformation of the civilian intelligence structures would be undertaken during two phases.  The first phase dealt with the consolidation of the State Security Agency (SSA) into a single department with one accounting officer.  Resources would be re-focused on core business operations.  The Bill would allow for the implementation of phase 1.  The second phase included a comprehensive policy review.  The review of the White Paper on Intelligence would be completed by 2013 and the new policy would be given effect by the State Security Bill in 2014.

The Bill made provision for the dis-establishment of the National Intelligence Agency (NIA), the South African Security service (SASS), the South African National Academy of Intelligence (SANAI) and electronic Communications Security (Pty) Ltd (COMSEC).  Provision was made for the continued existence of the Intelligence Services Council (ISC), Criminal Intelligence (CI) and Defence Intelligence (DI).  The ISC was an effective body to address matters concerning service conditions of intelligence personnel.  The Minister was clear that the security services would remain non-unionised.  The National Intelligence Co-ordinating Committee (NICOC) would remain but the function of coordination of intelligence was removed.

The briefing included an overview of the salient points of the current intelligence legislative framework, an illustration of the intelligence architecture prior to 2009 and the proposed new architecture in terms of the Bill.  The process undertaken since 1994 to review the legislative framework was summarised.  The Minister conceded that previous attempts to consolidate the intelligence structures had not been successful.  A list of other legislation where reference was made to security structures was provided.  These laws required technical amendments to correct the references to the SSA and to transfer any exemptions to the Agency.

The briefing was concluded with an overview of the proposed amendments to the Intelligence Services Act, the National Strategic Intelligence Act and the Intelligence Services Oversight Act.  The Minister conceded that certain interim regulations that had been issued in terms of the current legislation had been abused.  He welcomed the holding of public hearings on the Bill.

Discussion
The Chairperson asked Members to restrict their questions to points of clarity.  In-depth discussion of the Bill would be conducted during subsequent Committee meetings.

Mr Maynier asked the Minister to comment on the recent incident when the offices of the SSA in Durban had burnt down.  He noted that the purpose of the Bill was to consolidate the security services, which he said was in effect centralisation.  This was a departure from the Minister’s policy statement, which he quoted verbatim.  He said that the Bill was not aligned with the policy and he wondered if it represented a return to the security dispensation that had existed under the previous political dispensation.  He understood that it was necessary for a warrant to be obtained before the security services could intercept signals.  However, the Matthews Commission report cited instances where signals were unlawfully and unconstitutionally monitored.  He asked for clarity on the matter and confirmation that a warrant signed by a Judge had to be obtained.

Mr L Ramatlakane (COPE) noted that the review of the White Paper on Intelligence would only be completed by 2013.  The White Paper outlined the policy but the legislation to change the intelligence service structures was introduced two years prior to the policy directive.  The Matthews Commission was tasked with reviewing the current challenges.  He asked if the Commission had informed the process of introducing the Bill or if the Bill had resulted from the review of the White Paper.  He asked if models of other functional intelligence structures had been considered when developing the proposed organisational structure.

Mr J Maake (ANC) asked for further clarity on the lowering of the retirement age to 55, in line with the Public services Act (PSA).  He asked for more information on the medals awarded by the SSA and the requirement that the medals must be registered with the Bureau of Heraldry.

Mr J Thibedi (ANC) understood that the SSA would take over the functions of the NIA and SASS, which would be abolished.  As all the previous structures had dealt with intelligence, he was of the opinion that the process was consolidation and not centralisation of the services.

Mr N Fihla (ANC) said that the existing intelligence structure could not be compared to structure under the previous government.  Instead of a number of Directors-General, there would in future be a single Director-General.  He understood that the motivation for the re-organisation of the security services was to save money and to have uniform systems in place.

Minister Cwele advised that the fire at the Agency’s Durban offices was under investigation.  The Parliamentary Committees would be briefed on the matter.  The offices were rented and the landlord had made alternative accommodation available.  There were no budget implications.  He reiterated that the various security structures were being consolidated and were not being centralised.  The amalgamation of the different structures under NIA and the creation of three different departments had been transitional arrangements.  The critical issue was the ability to operate effectively rather than the nature of the structural arrangements.  The intelligence community was small and highly specialised.  Previous attempts to get the various entities to work together had not been successful.  Instead of focusing on the core business of the Agency, corporate services had proliferated.  Control over the different entities had become difficult to manage.  The nature of the training courses offered by SANAI required review.  The process of consolidating the services had commenced in 2009 and the situation had been stabilised.  The Auditor-General had commented on the financial inefficiency of the organisation.  Under the new structure, the heads of the foreign and domestic intelligence services would report to a single Director-General.  The overall objective of the intelligence service was to combat any threat to the country.  The policy on intelligence as reflected in the White Paper was subject to debate.  The review of the 1994 White Paper was currently underway.  The draft White Paper could be released for public comment as early as 2012.

Minister Cwele said that any abuse of the regulations involving the failure to obtain the necessary warrant from a Judge before signals were intercepted had to be stopped.  It was not possible to control ‘free airwaves’.  The Matthews Commission report had no legal standing as the correct legal procedures were not followed before the report was leaked.  Matters would be confused if the report was introduced during consideration of the Bill.  However, the government had taken all relevant reports into account during the development of the two phases of the restructuring of the security services.

Minister Cwele explained that the security services had separate dispensation and its own conditions of service.  However, it was necessary to align the retirement age to the PSA as the pension benefits of members of the security services could not be compromised.  The medals were awarded to members of the security services in acknowledgement of performance.  There were gold, silver and bronze medals.  The reason for registering the medals with the Bureau of Heraldry was that two members had recently sold their medals for scrap metal.  There were rules in place for the safekeeping of medals and when it was appropriate for the medals to be worn.

Mr Maynier asked how much gold was in the medal.

Minister Cwele was unable to answer.  He said that the intelligence community needed to adjust to changing threats on an on-going basis but it was necessary to have a stable structure in place.  Consideration had been given to international practices but the models had been modified to suit South African needs.  The intelligence service was a national asset and not a party-political tool.  The South African security service had to cooperate with the services of other countries.  The contribution of the members of the security services deserved to be recognised.

Mr Maynier reiterated that the security services were being centralised, which was a departure from the current policy.  He asked if the reorganisation of the services under a single department was an international trend.  He said that there were valid reasons for separate domestic and foreign intelligence services, as was the case in other democratic countries.  He felt that the creation of a single security agency would come at a cost to democracy.  The Bill had to address the concerns regarding interceptions without obtaining the proper warrants.

Ms H Mgabadeli (ANC) asked the Minister to reconsider the period of absence from duty before a medical certificate was required.  The generally acceptable period was three consecutive days rather than the proposed ten days.

Minister Cwele disagreed that the consolidation of the security services would come at a cost to democracy.  The new arrangement would result in cost savings.  He said that the concept of ‘political intelligence’ was a misnomer and that it was important that misconceptions were clarified before the public participation process commenced.

The Chairperson advised that the Committee would have ample opportunity to deliberate on the clauses of the Bill.

The meeting was adjourned.