Electronic Communications Security (Pty) Ltd Bill; National Strategic Intelligence Amendment Bill; Intelligence Services Control

Meeting report

INTELLIGENCE LEGISLATION AD HOC COMMITTEE
15 October 2002
ELECTRONIC COMMUNICATIONS SECURITY (PTY) LTD BILL; NATIONAL STRATEGIC INTELLIGENCE AMENDMENT BILL; INTELLIGENCE SERVICES CONTROL AMENDMENT BILL: FINALISATION

Chairperson: Dr S Cwele (ANC)

Relevant documents
Intelligence Service Control Amendment Bill [B50-2002]
National Strategic Intelligence Amendment Bill [B51-2002]
Electronic Communications Security (Pty) Ltd Bill [B59-2002]
Proposed Amendments to National Strategic Intelligence Amendment Bill (Appendix 1)
Amendments to National Strategic Intelligence Amendment Bill (Appendix 2)
Proposed Amendments to Electronic Communications Security (Pty) Ltd Bill (Appendix 3)
Proposed Amendments to Intelligence Service Control Amendment Bill (Appendix 4)

SUMMARY
A few amendments were proposed to the Intelligence Service Control Amendment Bill, and the Committee passed the Bill as amended.

Amendments were effected to the National Strategic Intelligence Amendment Bill to which Committee agreed, and the Bill was passed.

Minor amendments were proposed to Clauses 1, 6, 7, 17 and 21 of the Electronic Communications Security (Pty) Bill, to which Members agreed. The Committee passed the Bill as amended, with the IFP opposing both Clauses 18 and 24.

During discussions on the ComSec Bill, the DP, IFP and NNP raised concern with the carte blanche powers granted to ComSec to acquire shares in "any other company", even though that company might not be involved in the security industry. Both the Department of Intelligence and the ruling party contended that there are sufficient oversight measures in place, in the form of the JSCI and extensive powers of Parliament, to guard against any abuse in this area. The NNP conceded, but the IFP opposed this clause.

In Clause 22 the IFP raised concern with the phrase "additional functions" as it allows the Minister of Intelligence effectively to introduce additional functions of ComSec via legislation, and this cannot be allowed because only Parliament has the authority to legislate. It was agreed that the offending phrase would be deleted. In Clause 24 the IFP and NNP contended that ComSec has to be held accountable here, and the Department stated that this clause is aimed at absolving ComSec from liability only from latent defects in the technology it uses in good faith, nothing else. The NNP conceded but the IFP opposed this clause.

MINUTES
Intelligence Service Control Amendment Bill
Clause 1: Amendment of section 1 of Act 40 of 1994, as amended by section 1 of Act 31 of 1995 and section 1 of Act 42 of 1999
Amendments 1 and 2
Ms Takie Netshitenzhe, from the Department of Intelligence (the Department), informed Members that proposed amendments 1 and 2 (see document attached) are merely consequential. In the proposed definition of "Comsec" in part (d) of amendment 2, "Pty" should be placed in brackets to read "(Pty)".

Amendments 3 and 4
Ms Netshitenzhe stated that this amendment now includes an "administrative accounting" officer, and amendment 4 is consequential in nature.

The Chair noted that Members agreed to the amendments proposed to Clause 1.

Clause 2: Amendment of section 2 of Act 40 of 1994, as substituted by section 2 of Act 31 of 1995 as amended by section 2 of Act 42 of 1999
Amendments 1 and 2
Ms Netshitenzhe read through the two amendments proposed to this clause.

The Chair noted that Members agreed to the amendments proposed to Clause 2.

Clause 3: Amendment of section 3 of Act 40 of 1994, as amended by section 3 of Act 31 of 1995 and section 3 of Act 42 of 1999
Amendment 1
The Chair noted that Members agreed to this amendment.

Amendment 2
Mr D Gumede (ANC) sought clarity on the reporting requirement introduced by this proposed amendment, as it is not clear whether or not Section 3(2) of the PFMA trumps Subclause (b)(iv) of the Bill.

Adv Gideon Hoon, State Law Advisor, replied that Parliament cannot bind itself here as only the Constitution can do this and should the Committee wish to do things differently it can, and that law would then have to be amended.

Ms Netshitenzhe added that there is no inconsistency here between the Bill and the PFMA, as that provision in the PFMA contains several requirements regarding reporting, and those provisions can be included in the Bill.

Mr Gumede accepted the explanation offered by Ms Netshitenzhe.

Mr Landers suggested that Subclause (b)(iv) has nothing to do with the PFMA as it only refers to the Explanatory Memorandum, which is not part of the Bill.

The Chair noted that Members agreed to proposed amendment 2 in Clause 3.

Amendment 3
Ms Netshitenzhe informed Members that this amendment seeks to call all heads of the intelligence services to account, and should actually state "(g)" and not "(h)".

The Chair noted that Members agreed to this amendment.

Amendment 4
The Chair noted that Members agreed to this amendment.

Clause 4: Amendment of section 4 of Act 40 of 1994
Amendments 1 and 2
Ms Netshitenzhe stated that these are merely consequential amendments.

The Chair noted that Members agreed to the amendments proposed to Clause 4.

Clause 5: Amendment of section 5 of Act 40 of 1994, as amended by section 4 of Act 42 of 1999
Amendment 1
Ms Netshitenzhe stated that this is merely a consequential amendment.

The Chair noted that Members agreed to this amendment to Clause 5.

Clause 7: Substitution of section 7 of Act 40 of 1994, as amended by section 5 of Act 31 of 1995 and by section 5 of Act 42 of 1999
Amendment 1
Mr Landers suggested that a Subclause (1) be inserted Clause 7 after "7." to now read "7. (1)", because that clause does not contain a subclause 1.

The Chair noted that Members agreed to both amendment 1 and Mr Landers' amendment.

Amendment 2
Mr Landers stated that during yesterday's meeting it was decided that the phrase "determined by the Committee" in Subclause 4 is to be replaced with "as prescribed", yet this has not been included in these amendments.

The Chair noted that Members agreed to both amendment 2 and Mr Landers' amendment.

Amendment 3, 4 and 5
The Chair noted that Members agreed to these consequential amendments.

The Motion of Desirability was read. Each clause of the Bill was then re-read, as amended, and the Chair noted that Members have agreed to the Bill as amended. The Committee Report on the Bill was read by the Chair, and it too was agreed to by Members. The Bill was passed by the Committee.

National Strategic Intelligence Amendment Bill
Clause 1: Amendment of section 1 of Act 39 of 1994, as amended by section 1 of Act 37 of 1998 and section 24 of Act 66 of 2000
Amendment 1
The Chair noted that Members agreed to this amendment (see Appendix 1).

Amendment 2
Mr M Scott (ANC) asked whether the proposed definition of "subversion" (see Appendix 2) is consistent with the definitions contained in other legislation.

Adv Hoon replied that no other laws on the South African statute books contain this term, and there can therefore be no inconsistency.

The Chair noted that Members agreed to the amendments to Clause 1.

Clause 2: Amendment of section 2 of Act 39 of 1994, as amended by section 2 of Act 37 of 1998
Amendment 1
The Chair noted that Members agreed to this amendment.

New Clause
Ms Netshitenzhe took Members through the proposed amendments, and stated that "confidential" in the proposed Section 2A(1)(b)(i) will be replaced by "classified". In the proposed Section 2A(8)(b) and (c) "must" will have to be replaced by "shall" for consistency, and in (c) "Agency" will be replaced by "relevant National Intelligence Structure".

The Chair noted that Members agreed to the new proposed Section 2A, as amended.

Clause 3: Amendment of section 4 of Act 39 of 1994, as amended by section 37 of Act 37 of Act 37 of 1998 and section 25 of Act 66 of 2000
Ms Netshitenzhe stated that all the intelligence centres currently falling under the Nicoc umbrella should be included in the Bill, as the intention here is to incorporate them all in one body.

Mr Landers asked whether the Minister of Finance, because the Financial Intelligence Centre would also fall under this intelligence body.

The Chair stated that this matter has to be sorted out.

Ms M Olckers (NNP) stated that this matter should be finalised now, and the Committee cannot always burden the NCOP to "slip in" amendments.

Ms Netshitenzhe proposed a possible solution in amending Subclause 4 to include:

(g) Director of the Financial Intelligence Centre

Ms Olckers stated that she does not understand why the intelligence centres do not merely co-opt, as this will resolve the problem and ensure consultation.

The Chair called for this matter to be considered further.

A member of the State Law Advisor delegation informed Members that the Minister of Finance has stated that he is not against this proposal, but would request further consultation before a final decision is reached.

Clause 6: Substitution of section 6 of Act 39 of 1994, as amended by section 7 of Act 37 of 1998 and section 26 of Act 66 of 2000
Ms Netshitenzhe stated that the phrase "Nicoc or its" in Subclause 5 be replaced by "national intelligence structures or their".

The Chair noted that Members agreed to this amendment.

The Chair read the Motion of Desirability and Members agreed. Each clause in the Bill was then read, with the amendments, and the Chair noted that Members agreed to the Bill as amended. The Committee Report on the Bill was also accepted by Members, and the Bill was passed by the National Assembly.

Electronic Communications Security (Pty) Ltd Bill
Clause 1: Definitions
Amendment 1
Ms Netshitenzhe informed Members that this amendment (see document attached) merely provides the accurate name of the legislation referred to, as it has just recently been passed by the National Assembly.

The Chair noted that Members agreed to this amendment.

Amendment 2
Ms Netshitenzhe stated that "information or" has now been removed from this definition, because the Bill only deals with electronic communications and not electronic information.

The Chair noted that Members agreed to this amendment.

Amendment 3
Ms Netshitenzhe stated that this amendment now defines the term "critical electronic communications infrastructure".

The Chair noted that Members agreed to this amendment.

Amendment 4
Ms Netshitenzhe informed Members that the JSCI is now defined, because the Bill requires ComSec to report to it.

The Chair noted that Members agreed to this amendment.

Amendment 5
Ms Netshitenzhe stated that the definition of this term has been taken from the Regulation of Interception of Communications and the Provision of Communication-Related Information legislation.

The Chair noted that Members agreed to the amendments to Clause 1.

Clause 6: Request for exemption from application of provision of Companies Act
Amendment 1
Ms Netshitenzhe read through this amendment.

The Chair noted that Members agreed to this amendment.

Clause 7: Functions
Amendments 1 and 2
Ms Netshitenzhe informed Members that Subclause 5 has been introduced to enable ComSec to access the premises and systems of the telecommunications service providers (TSP) at State expense, and the same applies to proposed amendment 2.

The Chair noted that Members agreed to these amendments.

Clause 17: Clause 17: Analysis of electronic communications security needs, and business agreement
Amendment 1
The Chair noted that Members agreed to this amendment.

Clause 18: Funding of Comsec
Amendment 1
Ms Netshitenzhe informed Members that this clause has been reformulated so as to phrase it in a positive rather than a negative manner.

The Chair noted that Members agreed to this amendment.

Amendment 2
Ms Netshitenzhe stated that the new proposed Subclause 10 introduces the role of the Auditor General.

The Chair noted that Members agreed to this amendment.

Amendment 3
The Chair noted that Members agreed to this grammatical amendment.

Brig Gen P Schalkwyk (DP) reminded Members that during yesterday's discussion Telkom objected to the current Subclause 10, and at that point he had suggested that the phrase "which is involved with communications security" be inserted after "company" in that clause.

Mr E Ferreira (IFP) stated that the IFP is not happy with the current version of Subclause 10, because it allows ComSec to acquire shares in any company.

Mr Landers contended that he did not inform Telkom and Transtel during yesterday's meeting that the Committee is concerned with the financial implications for the State. The Committee was then informed that the intention is to allow ComSec to acquire such shares so that it may become self-sustainable.

The Chair proposed that this matter be opened for debate in an effort to reach consensus on this matter.

Mr Ferreira stated that he understands the point made by Mr Landers but maintained that this provision could easily be abused and used for mischief. Parliament does not pass laws that aimed at a specific government or Minister, but instead has to pass laws for governments down the line. The matter is thus not as simple as Mr Landers contends.

The delegate from the Intelligence Ministry agreed that this is not a straightforward matter, and there are precedents on the manner in which state information centres are to operate. One has to be cautious here because one is dealing with intelligence, yet the oversight structures on place to regulate the acquisition of shares by ComSec are adequate.

A State Law Advisor contended that the Companies Act does stipulate that private companies can acquire shares in any company in the Republic, and ComSec would also be guided by its Memorandum and Articles of Association in deciding what kind of shares to acquire.

Ms Modise (ANC) stated that she saw no reason for prohibiting ComSec from acquiring shares in even Telkom and Transtel, if it has the interests of the country at heart. The loophole cautioned against by Mr Ferreira used to occur under the previous dispensation, but that dispensation did not have the level of openness and scrutiny that characterises the present dispensation. Furthermore, Parliament has extensive powers which include the power to call anyone to account to it, and the JSCI can use this power with regard to the acquisition of shares.

Ms Olckers stated that the problem here is that, as opposed to the contention by Ms Modise, the JSCI does not have the power to oversee the acquisition of shares by ComSec, because only the Minister can do this. Furthermore, the State, as the sole ComSec shareholder, cannot be allowed to take advantage of the company or financial institutions in order to advance, because this would amount to "fighting industry" when it should instead be concerned with creating employment and developing industry. The State will thus be using a private company to fight industry. It is thus proposed that the phrase "in any other company involved in or related to the security industry".

Mr Scott stated that the bottom line here is that people do not seem to trust ComSec, but the Bill is not trying to set up a another parastatal because ComSec's objective is "simple and straightforward". ComSec would only perform the security clearances and services, and the NAC is not looking to set up another parastatal.

The Chair contended that even if Subclause 10 were to be deleted, ComSec woulds till be able to acquire such shares under the Companies Act.

Mr Gumede proposed that the phrase "for purposes in line with the objectives of this Act and for updating the technology ComSec may require" be inserted in Subclause 10.

Ms Modise suggested that such amendments would affect the way ComSec is able to raise funds, as it would create a weakness. Ms Olckers suggested that ComSec would only be responsible to the Minister, yet the Intelligence Services Control Amendment Bill provides that the CEO of ComSec has to account to the Minister and Parliament, and these oversight measures are thus sufficient here.

Ms Olckers replied that the general principle here is that the shareholders have to agree to such acquisitions, and in this case the only shareholder of ComSec is the State, or the Minister herself. The JSCI can therefore not interfere and influence the acquisition, but only comes once the shares have already been acquired.

Mr Ferreira stated that the proposal by Mr Gumede "is roughly on the right track", and contended that anyone would be "really stupid to trust any government". Parliament cannot make law with a specific Minister in mind, but has to be aimed at future governments and Ministers as well.

The Chair contended that Members are actually agreeing generally on the principles to be included in this clause.

A State Law Advisor stated ComSec would have to act in accordance with its Memorandum and Articles of Association.

Ms Netshitenzhe informed Members that ComSec is the only company of its kind that is linked directly to a Parliamentary Committee in the form of the JSCI, and this is aimed specifically at ensuring that it is held accountable and that it discloses all its activities.

Brg Gen Schalkwyk stated that this measure makes sense.

Ms Olckers stated that the explanation does not solve the current problem because the oversight function granted to the JSCI is purely reactionary, whereas in this case there is a need for a proactive intervention before the decision is taken to acquire the shares. If ComSec does not make a profit, it can always come back to Parliament and state its case.

The Chair contended that JSCI is not a purely reactionary Committee, but is also proactive.

Ms Netshitenzhe reminded Members that the Committee has just effected amendments to the Intelligence Services Control Amendment Bill that extends the functions of the JSCI even further to allow it a proactive role. It now provides that the Minister has to table the ComSec budget before the JSCI, and this includes disclosing all the dividends and other funding that accrued to ComSec. The JSCI therefore performs both a reactive and proactive role, and these two functions therefore create a balance.

Mr Landers stated that it is unfortunate that the JSCI performs a primarily reactionary role, but "that is how the system is".

Mr Gumede agreed with Mr Landers and stated that ComSec would make bad business decisions at its own peril. The bottom line is good business decision-making in an open market. Subclause 10 deals with a peripheral issue and does not present a major problem, and it has to be remembered that should ComSec stray in its acquisition of shares, it would be taken to task.

Mr S Abram (UDM) reminded Members that during a previous meeting of this Committee he had asked the Department to explain whether the recently-passed Electronic Communications and Transactions Act accords with this Bill. Should there be any tension or conflict between the two pieces of legislation, then this Bill has to be amended to resolve the problem. Are there thus any provisions in this Bill that expressly allow the JSCI to call the CEO of ComSec at any time to explain the shareholding position or any of ComSec's unanticipated plans?

The delegate from the Intelligence Ministry responded by assuring Members that nothing prevents the JSCI from acting proactively and requesting ComSec to explain its business plan, so that its shareholding interests may be identified, as well as the motivation for such plans and shareholding and business interests etc. Furthermore, the JSCI can also call on the Inspector-General to inspect ComSec documentation.

Mr Abram asked whether this power granted to the JSCI is spelt out in the Bill?

Ms Netshitenzhe replied that the Intelligence Services Control Amendment Bill amends the functions of the JSCI and allows it to inquire into the affairs of ComSec, including financial and administrative matters. Clause 4 of that Bill provides that the head of ComSec may be called to explain its business affairs to the JSCI.

Mr Abram approved.

Ms Modise stated that the initial ComSec budget would have to be approved by Parliament, and from that point onwards Parliament would exercise an oversight role over ComSec activities. The JSCI can use the extensive powers of Parliament to "play oversight".

Mr Scott proposed that the phrase "ComSec is allowed to buy shares in related security companies".

The Chair stated that, as mentioned earlier by Ms Netshitenzhe, the functions granted to ComSec have been extended by Clause 7 of the Bill, and it is clear that ComSec cannot act outside the objects of the Bill. It also has a Board that needs the Minister's approval, and can therefore not act in any manner it sees fit. Furthermore, the JSCI performed extensive proactive and reactive roles, and these by and large cover the concerns raised by Members.

Mr Ferreira stated that he is "30% satisfied" because the Bill still provides that the government decides which shares are to be acquired, and the JSCI only comes in after the fact. The matter has not therefore been resolved.

Ms Olckers contended that should ComSec stray here Parliament would "kick up dust'", and ComSec would not be able to act in that manner again.

The Chair proposed that the phrase "purposes of fulfilling the objectives of this Act" be inserted, and asked whether this would resolve Mr Ferreira's concerns.

Mr Ferreira replied that this "does not change anything whatsoever".

Clause 21: Critical electronic communications infrastructure
Amendments 1 and 2
Ms Netshitenzhe informed Members that these amendments now make it clear that the State would bear the cost of installing this infrastructure.

Clause 22: Regulations
Amendment 1
Ms Netshitenzhe stated that this is a standard clause contained in several laws that requires the JSCI to be consulted in the drafting of regulations.

Mr Ferreira contended that the Minister may impose regulations, that's fine, but Clause 22(1)(a) also allows her to introduce "additional functions" which can only be imposed via legislation, and the Minister cannot legislate. There does not seem to be any need for including the phrase "additional functions" in this Bill, because the ComSec functions have been clearly spelt out in Clause 7.

The Chair noted that all Members agreed on the deletion of that phrase.

Ms Netshitenzhe stated that the phrase "any other function" in Clause 7(1)(d) is similar here, but even these have to be done in consultation.

Mr Ferreira stated that this supports his proposal and suggested that Clause 22(1)(a) just read "functions not inconsistent...".

Ms Netshitenzhe agreed with the deletion of "additional", as it is not "a life or death issue".

Mr Ferreira approved, but stated that he is not happy with the inclusion of the phrase "any other matter' in Clause 22(1)(f), for the same reason.

Amendments 2 to 5
The Chair noted that Members agreed to these amendments.

The Chair then read through the Motion of Desirability and noted that Members agreed to it.

Clause 24: Limitation of liability
Ms Olckers contended that this clause grants ComSec "a blank cheque", and she cannot agree to this clause.

Mr Ferreira stated that in the "old order" many people "did terrible things in good faith", and therefore ComSec have to be held liable here. He too cannot agree to this clause.

A State Law Advisor suggested that the phrase "unless that act constituted gross negligence" be added after the word "Act" at the end of the clause. This would then exclude gross negligence from exemption from liability.

Mr Ferreira stated that this is a step in the right direction, but does not solve the problem.

Ms Olckers agreed with Mr Ferreira and added that gross negligence "does not go all the way".

The delegate from the Intelligence Ministry stated that this concern is covered by the conditions of service of ComSec Members, and clarified that Clause 24 is aimed at absolving ComSec from any latent defects inherent in the technology it uses in good faith and without knowledge of the defects, which it did not pick up beforehand. ComSec cannot be held responsible for such defects, and this is the sole aim of this clause.

Ms Olckers stated that this does clarify the matter.

Mr Landers stated that there are other Acts to deal with the concern raised and Mr Ferreira wants to introduce a "shopping list" here, yet the Constitution itself provides that a person has the right to resolve any dispute in a public hearing, and this right trumps all others.

The Chair noted that all Members agreed to Clause 24 as amended, except Mr Ferreira.

The Chair then read through each clause of the Bill with the amendments proposed, and noted that Members agreed to Clauses 1-5, Clauses 6 and 7 as amended, Clauses 8-16, Clauses 17 and 18 as amended, Clause 19 and 20, Clauses 21-23 as amended, Clause 24-27 and the Schedule. It was noted that Mr Ferreira disagrees with Clauses 18 and 24, as amended.

The Bill was passed by the Committee.

There were no further questions or comments and the meeting was adjourned.

Appendix 1
AMENDMENTS PROPOSED TO NATIONAL STRATEGIC INTELLIGENCE AMENDMENT BILL [B51-2002]

CLAUSE I

1. On page 2, in line 11, to omit "[intelligence]" and to substitute 'intelligence".

2. On page 2, after line 20, to insert the following paragraph:

(c) by the insertion after the definition of "South African Police Service' of the following definition:

"'subversion' means any activity directed towards undermining by covert unlawful acts, or directed towards, or intended ultimately to lead to the destruction, or overthrow by violence of the Constitutionally established system of government in the Republic of South Africa;".

CLAUSE 2

1. On page 2, in line 24, to omit "on request".

NEW CLAUSE
1. That the following be a new Clause:

Insertion of section 2A in Act 39 of 1994

1. The following section is hereby inserted in the principal Act after section 2:

"Security screening investigations

2A. (1) The relevant members of the National Intelligence Structures may conduct a security screening investigation to determine the security competence of a person if such a person-
(a) is employed by or is an applicant to an organ of state;
(b) is rendering a service or has given notice of intention to render a service to an organ of state, which service may-
(i) give him or her access to confidential information in the possession of the state; or
(ii) give him access to areas designated National key points in terms of the National Key
Points Act, 1980 (Act No.102 of1980).
(2) The Agency shall be responsible for security screening of persons contemplated in subsection (1) excluding persons employed by, applicants to or persons rendering a service to the South African Police Service or the Department of Defence.
(3) Notwithstanding the provisions of subsection (2), the Agency may request the assistance of the South African Police Service or the National Defence Force in the performance of the function contemplated in subsection (2).
(4) The security screening investigation contemplated in subsection (1) may entitle relevant members of the National Intelligence Structures to use a polygraph, to determine the reliability of information gathered during the investigation.
(5) The relevant members of the National Intelligence Structures may gather information relating to-
(a) financial status;
(b) criminal record;
(c) personal information or
(d) any other information which is relevant to determine the security competence of a person: Provided that the communications of such a person shall not be monitored or intercepted without complying with the provisions of the Interception and Monitoring Prohibition Act, 1992 (Act 127 of 1992).
(6) The head of the relevant National Intelligence structure may at4er evaluating the information gathered during the security screening investigation, issue, degrade or withdraw or refuse to grant a security clearance.
(7) The head of the relevant National intelligence Structures may establish a security screening Advisory Board to assist him or her in the determination of the security competency of a person.
(8) A person whose security clearance has been refused, withdrawn or degraded may appeal to the Minister.
(9) The Director-General of the Agency may issue functional directives on:
(a) usage and application of polygraph;
(b) criteria for determining security competence; and
(c) levels of security clearance.
(10) The directives contemplated in subsection (9) shall be issued with the approval of the Minister. \\ho shall act in consultation with the Minister of safety and security and the Minister of Defence and shall apply to all the relevant National Intelligence Structures.

CLAUSE 4
1. On page 3, after line 19, to insert the following paragraph:

(b) by the addition to subsection (1) of the following paragraph:

"(g) the Director of the Financial Intelligence Centre.".

CLAUSE 6
1. On page 4. in line 20, to omit "Nicoc or its' and to substitute "the National Intelligence Structures or their".

Appendix 2
AMENDMENTS PROPOSED TO NATIONAL STRATEGIC INTELLIGENCE AMENDMENT BILL [B51-2002]

CLAUSE I

2. On page 2, after line 20, to insert the following paragraph:

(c) by the insertion after the definition of "South African Police Service' of the following
definition:

" 'subversion' means any activity intended to destroy or undermine the Constitutionally
established system of government in the Republic of South Africa;".

Appendix 3
AMENDMENTS PROPOSED ELECTRONIC COMMUNICATIONS SECURITY (PTY) LTD BILL

CLAUSE 1
1. On page 2, from line 9, to omit the definition of "communication" and to substitute:
"communications" means communications as defined in an act of Parliament providing for the regulation of interception of communications;

2. On page 2, from line 14, to omit the definition of "critical electronic communications" and to substitute:
"critical electronic communications" means electronic communications held by organs of state which are necessary for the protection of the national security of the Republic;

3. On page 2, after line 17, to insert the following definition:
"critical electronic communications infrastructure" means electronic communication products or Systems used to transmit and store or transmit or store critical electronic communications;

4. On page 2, after line 19, to insert the following definition:
"joint standing committee" means the Joint Standing Committee on Intelligence established by section 2 of the Intelligence Services Control Act,1994 (Act No.40 of 1994);

5. On page 2, after line 23, to insert the following definition:
"telecommunication service provider" means a telecommunication service provider as defined in an Act of Parliament providing for the regulation of interception of communications;

CLAUSE 6
1. On page 3, in line 29, to omit "prejudicial" and to substitute:
"detrimental"

CLAUSE 7
1. On page 4, after line 6, to insert the following subsection:
(5) The head of a telecommunication service provider must, at the request of Comsec and at Comsec's expense, render such assistance as may be necessary for the execution of the function of Comsec contemplated in this section.

2. On page 4, from line 7, to omit subsection (6) and to substitute:
Comsec is exempted from the licensing requirements contemplated in -
(a) the Broadcasting Act, 1999 (Act No.4 of 1999)
(b) the Telecommunications Act ,1996 (Act No.103 of 1996).

CLAUSE 17
1.On page 6, from line 14, to omit subsection (2) and to substitute:
(2) The head of organ of state must, at the request of the Board and in the prescribed manner, submit to the Board an analysis of the electronic communications security needs of the organ of state under his or her administration.
(3) The must make its request six months after Comsec's incorporation, and thereafter in every second year.
(4) Expenditure on The procurement or accessing of electronic communications products by an organ of state which bas not complied with a request contemplated in subsection (2) must be regarded as unauthorised expenditure for tile purposes of the Public Finance Management Act, 1999 (Act No.1 of 1999).

CLAUSE 18
1. On page 6, from line 39, to omit subsection (5) and to substitute:
(5) The Board must prepare a strategic plan which it must use as a basis for recommending to the Minister how excess funds may be retained and used by the Board.

2. On page 6, after line 51, to insert the following subsection:
(10) The Chief Executive Officer must, at the end of each financial year, submit the report of tile Auditor General and the annual report compiled in accordance with the Public Finance Management Act, 1999 (Act No.1 of 1999) , to the Minister and the Joint Standing Committee on Intelligence for consideration.

3. On page 7, in line 1, to omit "front" and to substitute:
"in"

CLAUSE 21
1. On page 7, in line 19, after "must" to insert;
"for its own account"

2. On page 7, in line 20, after "programmes" to add:
"of organs of state"

CLAUSE 22
1. On page 7, in line 26, after "may" to insert:
, after consultation with the Joint Standing Committee on Intelligence,

2. On page 7, after line 33, to insert:
(e) labour relations of the employees of Comsec;

3. On page 7, in line 27, to omit "not inconsistent" and to substitute;
"consistent"

4. On page 7, in line 34, to omit "not inconsistent" and substitute:
"consistent"

5.On page 7, in line 45, after "17 (1)" to add:
"or (2)"

Appendix 4
AMENDMENTS PROPOSED TO INTELLIGENCE SERVICES CONTROL AMENDMENT BILL [B50-2002J

CLAUSE 1
1. On page 2, after line 6, to insert the following paragraph:

(a) by the insertion before the definition of "accounting officer" of the following definition:

"'Academy' means the South African National Academy of
Intelligence established in terms of the of the Intelligence Services Act,
2002;"

2. On page 2, after line 10, to insert the following paragraphs:

(c) by the insertion after the definition of "Auditor-General" of the following definition:

'''CEO' means the Chief Executive Officer of the Academy or Cornsec, as the case may be;"

(d) by the insertion after the definition of "Committee" of the following definition:

"'Comsec' means the Electronic Communications Security Pty Ltd established in terms of the of the Electronic Communications Act, 2002;"

3. On page 2, in line 16. after "Service" to insert:

, but for the purposes of financial and administrative accounting, the head of the Intelligence Division of the South African National Defence Force means the Secretary for Defence and of the South African Police Service means the National Commissioner

4. On page 2, after line 28, to insert the following paragraph:

(e) by the insertion after the definition of "Inspector-General" of the following definition:

"intelligence services" means the National Intelligence Agency and the South African Secret Services as referred to in section 1 of the Intelligence Services Act 2002;"

CLAUSE 2
1. On page 3, in line 21, to omit "[intelligence and counter intelligence
functions]" and to substitute:
"intelligence and counter intelligence functions, which include the"

2. On page 3, in line 44, to omit "functioning" and to substitute "functions and activities".

CLAUSE 3
1. On page 3, in line 53, after "Services" to insert ", Academy and Comsec".

2. On page 3, in line 56. to omit "Services" and to substitute:

Services, Academy and Comsec, and report thereon to Parliament

3. On page 4, after line 15, to insert the following paragraph:

(e) by the substitution for paragraph (h) of the following paragraph:

"(h) to deliberate upon, hold hearings, subpoena witnesses and make recommendations on any aspect relating to intelligence and the national security, including administration and financial expenditure;"

4. On page 4' in line 19, after "Services" to insert ", Academy and Comsec".

CLAUSE 4
1. On page 4, in line 33, after "Service" to insert ", the CEO".

2. On page 4, after line 35, to insert the following paragraph:

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

"(c) have the right to be assisted by members of that Service, the Academy or Comsec. as the case may be.".

CLAUSE 5
1. On page 4, in line 33, after "Service" to insert ", the CEO".

CLAUSE 7
1. On page 5, from line 23, to omit the proviso.

2. On page 5, in line 28, after "incapacity" to insert "withdrawal of his or her security clearance."

3. On page 6, in line 57, to omit "Agency" and to substitute "intelligence services".

4. On page 7, in line 33, to omit "Agency" and to substitute "intelligence services".

5. On page 7, in line 35, to omit "Agency" and to substitute "intelligence services".