Intelligence Services Control Amendment Bill; National Strategic Intelligence Amendment Bill; Intelligence Services Bill; Electr

NCOP Security and Justice

06 November 2002
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Meeting report

SECURITY AND CONSTITUTIONAL AFFAIRS SELECTED COMMITTEE

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
6 November 2002

INTELLIGENCE SERVICES CONTROL AMENDMENT BILL; NATIONAL STRATEGIC INTELLIGENCE AMENDMENT BILL; INTELLIGENCE SERVICES BILL; ELECTRONIC COMMUNICATIONS SECURITY (PTY) LTD BILL; JUDICIAL MATTERS AMENDMENT BILL: BRIEFING AND FINALISATION

Chairperson:
Kgoshi L Mokoena [Northern Cape]

Documents handed out:
National Strategic Intelligence Amendment Bill Proposed Amendments (Appendix 1)
Intelligence Services Bill Proposed Amendments (Appendix 2)
Electronic Communications Security (Pty) Ltd Bill Proposed Amendments (Appendix 3)
Intelligence Services Control Amendment Bill [B 50B-2002]
National Strategic Intelligence Amendment Bill [B 51B-2002]
Intelligence Services Bill [B 58B-2002]
Electronic Communications Security (Pty) Ltd Bill [B 59B-2002]
Judicial Matters Amendment Bill [B 55B-2002]
Judicial Matters Amendment Bill [B55-2002]
Report of the Justice Committee on the Judicial Matters Amendment Bill (Appendix 4)

SUMMARY
Ms T Netshitenze from the Department of Intelligence briefed the Committee on the background and objects of the proposed Bills. Mr De Lange from the Department of Justice briefed the Committee on the object of the proposed amendments in the Judicial Matters Amendment Bill. The Committee accepted the set of Intelligence Bills, with amendments. The Judicial Matters Amendment Bill was also accepted, although Members queried why the amendments could not be brought in their individual amendment Bills, since they emanated from different Acts.

MINUTES
Intelligence Services Control Amendment Bill
Ms Netshitenze explained that the Intelligence Services Control Act of 1994 was amended in 1999 to provide for a new formula for the appointment of members to the Joint Standing Committee on Intelligence (JSCI). The formula provided that members to the JSCI were to be appointed on the basis of proportional representation. It also provided for the appointment of the inspectors-general who would be responsible for the monitoring of the operational intelligence activities of intelligence services. The Bill intends to amend the Act, particularly with regards to the functioning of the office of the Inspectors-General and the oversight of the financial activities of the Services since the Act proved to be inadequate in dealing with those aspects.

Mr P Maloyi (North-West) (ANC) asked why the reports mentioned in Clause 3 should not also be submitted to SCOPA.

Ms Netshitenze replied that the powers relating to finances were granted to the JSCI by the principal Act because it is a well-informed structure when it comes to financial matters and SCOPA lacks the necessary expertise in this regard.

Further Amendments
The Department requested the insertion of words "Academy and Comsec" in Clause 3(b)(iv) after the words "regarding the budget for the Services".

The Committee accepted the amendment.

The Chairperson read the Committee's report, which was accepted. He went through the Bill clause by clause and the Bill, as amended, was unanimously adopted.

National Strategic Intelligence Amendment Bill
Ms Netshitenze held that the Bill intends to amend the National Strategic Intelligence Act of 1994. The Act provided for the establishment of National Intelligence Co-ordinating Committee (Nicoc), which would be responsible for advising the Cabinet on national strategic intelligence. It also provided for the appointment of the co-ordinator of intelligence and thereby defined the functions of the national intelligence structures.
However, in 1995, the President called for the demarcation of political responsibility of the Minister and that of the Co-ordinator. As the result of this the Act was amended in 1998 calling for the separation of responsibilities of the Co-ordinator from those of the Minister with regards to co-ordination of intelligence. The Minister remain a member of Nicoc as the political head and the Co-ordinator become a chief functionary of Nicoc functioning under the supervision of the Minister. However, following a review on the functioning of Nicoc it was decided that a need has arose to strengthen the legal mandate of Nicoc and thus put intelligence at the centre of Government business.

Mr G Krumbock (Mpumalanga) (DP) asked clarity on the meaning of the term "organ of state" in Clause 3 line 25. He further asked whether paragraphs (a) and (b) in Clause 3 are separated by the word "or" or "and".

Ms Netshitenze replied that the word referred to all organs of the state and the two paragraphs are separated by the word "or" and the omission to insert it was an oversight on the part of the Department.

Mr P Matthee (KwaZulu-Natal) (NNP) held that it would be advisable for the Minister to effect the regulations mentioned in Clause 6 either after consulted or in consultation with the JSCI. He then noted that a regulation may affect a wide spectrum of person and thus infringe those persons' fundamental rights protected in the Constitution. He asked what would happen in such cases since Clause 6(5) exempt the Minister from gazetting such regulations.

Ms Netshitenze agreed that the Minister should effect the mentioned regulations after consulted the JSCI and it should be inserted in the Clause. All regulations which have a negative impact on individual rights would be gazetted by the Minister as required in the Constitution. But in the interests of the security of the Republic, the regulations mentioned in Clause 6 would not be gazetted, bearing in mind the fact that only a particular class of people would be affected by this Clause.

Mr P Maloyi (North-West) (ANC) asked why the term "polygraph" is defined in the clauses and not in the definition clause of the Bill. He further asked whether the principal Act does not have the definition of this term.

A Departmental official responded that this is a drafting style and it does not make any difference where a concept is defined in a Bill, especially where it appears once in the Act. He also noted that the principal Act does not refer to this concept and as such it is not defined.

Mr Matthee requested the Department to comment on the widely debated issue concerning the reliability of the polygraph test.

Ms Netshitenze held that this is basically the reason why they decided to define this concept in the Bill. The Department does not intend engaging itself in the scientific nature of the debate concerning polygraphs as it intends to only use it as an aid in ascertaining a person's reliability. However, the result of such a polygraph test would not be a conclusive factor in determining one's reliability. Therefore other means of investigation would have to be used in determining one's reliability, such as interviews. She noted the fact that a polygraph test has been to proven to be 75% reliable, although a person can refuse to subject him/herself to the test and such refusal would not be used against him/her.

Mr Matthee requested the Department to prove to the Committee that this test has been proven to be 75% reliable. This would give the Committee a surety that the inclusion of this Clause would not back fire at a later stage.

Ms Netshitenze noted that the Department would provide the Committee with its report of the studies conducted on polygraph, including those conducted internationally.

National Strategic Intelligence Amendment Bill Proposed Amendments
The Committee accepted the proposed amendments to Clauses 2A and 6 of the Bill.

Further Amendments
The Department requested that Clause 6(4) be deleted since it repeats what was said in Clause 3(5) of the Bill.

The Committee accepted the amendment to the Bill.

The Chairperson read the Committee report and was accepted. He went through the Bill clause by clause and the Bill, as amended, was adopted. But Mr Krumbock registered a reservation on the Bill, based on the wide definition of the organs of state in Clause 3 of the Bill.

Intelligence Services Bill
Ms Netshitenze held that since the Intelligence Services are not treated as ordinary public services when it comes to labour laws, although they are expected to follow agreements that are reached through the Public Services Collective Bargaining Council, a need to address and correct this inequity arose. As the result the Minister, together with the Minister of Public Services and Administration, established a task team to conduct research on administration, human resource management, control and supervision of the Intelligence Services. She further held that the words "personal list" and "non-statutory services" in the definition clause should be read together for the sake of clarity.

Mr Krumbock noted that the establishment of the Academy would be very important to the country. He then asked who would be responsible to advise the President on the appointments to the Academy.

Ms Netshitenze replied that this power is vested in the President in terms of the Constitution, but the Minister would be able to advise the President from time to time.

The Chairperson noted the restrictions on members and former members in Clauses 23, 28 and 29 of the Bill. He then asked the reasons behind the prohibitions imposed on intelligence members, including former intelligence members, to engage themselves in remunerative activities outside the service or work as a private security after leaving the service. Furthermore he asked whether the restriction in terms of Clause 29 prohibits a member from contacting their friends outside the Republic after leaving the service.

Ms Netshitenze replied that Clauses 23 and 28 do not prohibit members and former members from performing any remunerative activities outside the service but only those which are perceived to be detrimental to the welfare and security of the Republic. Any member who works for a remuneration outside the Service has to disclose this. The Service would have to verify such member's interest in the said activity. This would prevent the conflict of interest that could arise as the result of this outside activity, which could otherwise put the security and the welfare of country in jeopardy, either because the member has fallen to bribery as the result of such activity of is engage in an illegal activity. On the other hand, former members are prevented from actively engaging into competition with the Service since that could undermine the security of the country and thus be detrimental to the welfare of the Republic. Lastly, Clause 29 does not prevent a former member from contacting their friends outside the Republic, but only prohibits those contacts which are deemed to prejudicial to the welfare and security of the country.

Intelligence Services Bill Proposed Amendments
The Committee accepted the proposed amendments to Clauses 10, 20, 40 and 41 of the Bill.

Further Amendments
The Department requested the following amendments to the Bill.

The insertion of the words "concerned or the Chief Executive Officer" in Clause 10(3) of the Bill line 54 after the words "The Director-General" since they erroneously omitted in the Bill.
The insertion of the words "without the permission of the Director-General, the Chief Executive Officer or a member, as the case may be" in Clause 26(1)(a)(iii) of the Bill line 20 after the words "a member".
That Clause 35 of the Bill be deleted.
The insertion of the words "unless such subordinate legislatives are inconsistent with the provisions of this Act" in Clause 41(7) of the Bill line 16 after the words "of this Act".

The Chairperson read the Committee report, which was accepted by the Committee. He went through the Bill clause by clause and the Bill, as amended, was unanimously adopted.

Electronic Communications Security Bill
The Department seeks to establish a new private company with the State as the sole shareholder. This company, which would be known as the Electronic Communications Security (Pty) Ltd ,simply referred to as "Comsec", would integrate all agencies of the State that provide protection and security to certain electronic communications of organs of state against unauthorized access or other related technical or electronic threats into one unit. Even though Comsec would be a registered company in terms of the Company Act of 1973, certain provisions of the Company Act would not apply against it.

Mr Maloyi noted that SITA and the proposed Comsec seemed to have similarities. He then asked whether the creation of this new company would not lead to the duplication of services between it and SITA.

Ms Netshitenze replied that these two companies should be understood in terms of their mandates as provided in the enabling Acts. It should be noted that while SITA provides technology and equipment to the organs of state Comsec, on the other hand, would ensure that the technology and equipment are secured and procured.

Mr Krumbock expressed his disapproval on the formation of Comsec. He strongly maintained that its establishment would result in the same problems experience by Britain through its MI6.

The Chairperson held that the Committee had received an opportunity during the briefings to scrutinise this matter and the Department was interrogated accordingly. The Committee was therefore left to decide on the Bill as presented by the Department.

Proposed Amendments
The Committee accepted the proposed amendments to Clauses 1, 6, 8 and 18 of the Bill.

The Chairperson read the Committee report and it was accepted. He went through the Bill clause by clause and Mr Krumbock registered reservations on Clauses 2, 4, 5, 6, 17 and 18 of the Bill. The Committee adopted the Bill, as amended.

Judicial Matters Amendment Bill
Mr J De Lange held that this Bill encompasses a variety of amendments which do require individual amending Bills. The amendments in the Bill seek to rectify certain provisions in the principal Acts and to fill some gaps which have developed in those Acts through the passing of time.

Mr Maloyi sought clarity on why the amendments could not be brought in their individual amendment Bills, since they emanate from different Acts.

Mr De Lange responded that this is an old practice which has been developed through time, as Parliament's time would be wasted when individual amendments are brought in their individual capacity. It is easy and saves time to bring them in one amendment Bill. He held that the case becomes different when the Bills to be amended are written in different languages. In such cases the amendment in the Bills can be brought in their individual capacities.

Ms Lubidla proposed that since the Bill is straight forward, it should be adopted

The Committee concurred with her proposal.

The Chairperson read the Committee report and it was accepted. He went through the Bill clause by clause and it was unanimously adopted.

The Chairperson thanked the Members, the departmental officials and the monitoring groups for their participation in the process.

The meeting was adjourned.

Appendix 1:
AMENDMENTS PROPOSED TO
NATIONAL STRATEGIC INTELLIGENCE AMENDMENT BILL

[B 59B-2002]

CLAUSE 1

  1. On page 3, in line 28, after "information" to insert "or intelligence".
  2. On page 3, in line 35, after "Service" to insert "the Service".
  3. On page 3, in line 35, to omit "Department of Defence" and to substitute
  4. "National Defence Force".

  5. On page 3, in line 36, after "Service" to insert "the Service".
  6. On page 4, in line 19, after "Minister" to insert "responsible for the relevant National Intelligence Structure".

CLAUSE 6

On page 5, in line 4, after "information" to insert "and intelligence".


Appendix 2:
PROPOSED AMENDMENTS TO
INTELLIGENCE SERVICES BILL

[B 58B -2002]

CLAUSE 10

On page 7, in line 7, to omit "he done in consultation with the Intelligence

Services Council" and to substitute "be submitted to the Intelligence Services

Council for consideration".

CLAUSE 20

On page 11, in line 21, to omit "12" and to substitute "12(1 ).(2)(a) and (c)".

 

CLAUSE 40

That the following be the new clause 40:

Validation of misconduct proceedings

40. Despite the repeal of the Bureau for State Security Act, 1978 (Act No }04 or 1978) and the regulations made thereunder, the procedure followed by the Director- General in terms of the said regulations to-

    1. charge members with misconduct; and

(b) constitute a board of enquiry.

which was provided for in section 15 of the Intelligence Services Act, 1994 (Act No 38 of 1994), at anytime from 1 January 1995 to 1 July 2001, that would have been lawful if the Bureau for State Security Act, 1978 and those regulations had been in force at the time it was done, is hereby validated and declared to have been lawfully done.

 

CLAUSE 41

  1. On page 17, in line 51, to omit "shall" and to substitute "must"

2. On page 17, in line 53, to omit "shall" and to substitute "must"

Appendix 3:
AMENDMENTS AGREED TO
ELECTRONIC COMMUNICATIONS SECURITY (PTY) LTD BILL
[B59B-2002]

SELECT COMMITTEE ON INTELLIGENCE

CLAUSE 1

1. On page 2, in line 25, to omit " of Intelligence" and to substitute: "as defined in an Act of Parliament providing for the Intelligence Services"

CLAUSE 6

    1. On page 3, from line 23, to omit subsections (1) and (2) and to substitute:
    2. (1) (a) The Minister may, on the recommendation of Comsec, request the Minister of Trade and Industry to declare the whole or part of a provision of the Companies Act not applicable to Comsec.


      (b) The request must be fully motivated.

      (2) The Registrar of Companies must publish particulars about the request and motivation contemplated in subsection (1) by notice in the Gazette, unless such publication will compromise national security

      CLAUSE 8

    3. On page 4, in line 31, to omit "approval" and to substitute "concurrence"

CLAUSE 18

On page 7, in line 7, after "donations" to insert "and bequests"

Appendix 4:
Report of the Portfolio Committee on Justice and Constitutional Development on the Judicial Matters Amendment Bill [B55 - 2002] (National Assembly - sec 75), dated 23 October 2002:


The Portfolio Committee on Justice and Constitutional Development, having considered the subject of the Judicial Matters Amendment Bill [B 55 - 20021 (National Assembly - sec 75), referred to it and classified by the Joint Tagging Mechanism as a section 75 Bill, reports the Bill with amendments [B55A-2002], and endorses the classification of the Bill as a section 75 Bill.

The Committee wishes to report further, as follows:


1. Clause 22 of the Bill is intended to address problems experienced by attorneys and candidate attorneys in the areas of the Eastern Cape which part of the former Transkei and areas of North West which formed part of the former Bophuthatswana. These are intended to be measures of an interim nature, pending the enactment of the Legal practice Bill, which is intended to rationalise the legal profession and the legislation which regulates the legal profession. In the light of recent representations received on clause 22, it would appear as if this clause, while appearing to be straight forward on the face of it, might need further consideration and consultation with other role-players. The Department is therefore requested to consult with the relevant role-players on the issues at hand and to revert to the Committee at the beginning of the 2003 session of Parliament with appropriate amendments that address all the issues, and which contain the necessary transitional arrangements.

2. The Committee has been approached to consider inserting provisions in the Attorneys Act, 1979 (Act 53 of 1979), which will make it compulsory for all newly admitted attorneys and sole practitioners to complete a legal practice management course. This will go a long way in reducing the number of claims against attorneys which arose as a result of a lack of management and/or administrative skills. While amendments have been prepared and made available for consideration, the Committee, because the deadline for the submission of draft legislation has expired and because of the tight legislative agenda for the remainder of the session, requests the Department to submit the amendments, which have been prepared by the Department and which differ from the original proposals submitted by the attorneys' profession in a number of respects, to all role-players for their comments and to revert to the Committee at the beginning of the 2003 session of Parliament with firm legislative proposals.

Report to be considered.

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