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

Amendment 1
Adv Schmidt stated that this amendment is problematic because Sub clause (a) is not the same and does not have similar consequences as Sub clause (b). It is contended that Sub clause (a) grants the relevant authority powers that are far too wide and also stretches the application of the limitation of rights detailed in Section 36 of the Constitution. This problem would be resolved should and the potential abuse would be done away with if Sub clauses (b)(i) and (ii) were both to be inserted in Sub clause (a).

The Chair informed Members that both he and Ms Netshitenzhe had discussed this matter with the DP before this meeting, and asked Ms Netshitenzhe to explain the concern raised.

Ms Netshitenzhe stated that Sub clause (a) applies to full-time employees whereas Sub clause (b) refers to those that are employed on a contract basis, and it is the full-time employee that would have to undergo a security clearance investigation. The problem raised here is that the word "classified" in Sub clause (b)(i) could be used as a loophole, because the mere fact that information is not declared "classified" does not mean that it is not sensitive information, and the legal protection needed here can thus be side-stepped in this way and result in abuse.

The current formulation of Sub clause (a) provides a blanket security clearance on full-time employees of the organ of state as a safeguard against any losses which might be caused to the State. The catch-phrase here is the inclusion of the word "may" in the proposed Section 2A(1) as it now removes the compulsory conducting of this investigation and replaces it with a discretionary power vested in the authority. The employer would thus have a choice in deciding whether to conduct the security clearance investigation on a particular employee or contractor or not, depending on the circumstances of each case.

It also has to be remembered that the primary problem that is being guarded against here is the unauthorised access to classified information which is leaked to the wrong hands, and this could possibly be perpetrated by any employee.

Ms Olckers stated that she agrees with Ms Netshitenzhe because when an employer decide to employ a person s/he is not certain at that point how long the person would be employed or what the person's job description would be, because this could change over time by delegating additional responsibilities to that person. It also has to be realised that it is not necessarily the CEO's and CFO's that could leak this sensitive and confidential information, but it is the driver and trash collector that is specifically recruited to relay this information precisely because they have access to the happenings on the ground. This has to be guarded against.

Mr R Pieterse (ANC) agreed with Ms Netshitenzhe that the crucial aspect here is the inclusion of the word "may" in the proposed Section 2A(1) and, although the concerns raised by Ms Olckers are legitimate, this then grants the employer the discretion to conduct this security clearance investigation. This would depend on the particular circumstances of each case, and the employer would thus not necessarily conduct it in every instance.

The delegate from the Intelligence Ministry stated that he agrees with the concern raised by Ms Olckers and stated that there are different levels of security clearances that determine the areas to which employees would have access. The provision in the Bill is sufficiently broad to ensure the most sensitive information is not compromised.

Mr Landers stated that this matter has already been discussed by Members in some depth, and should thus be approved because it is "nothing new".

The Chair contended that the inclusion of "may" is vital here as stated earlier by Ms Netshitenzhe, and a further safeguard against possible abuse is guaranteed by including the participation of the Joint Standing Committee on Intelligence (JSCI) in the regulation process via the proposed Section 2A(9).

The Chair noted that Members agreed to Amendment 1.

Amendments 2 and 3
The Chair noted that Members agreed to these amendments.

Amendment 4
Ms Netshitenzhe informed Members that this amendment is being effected because the authority to conduct security clearances now lies with the South African National Defence Force, and is thus no longer a responsibility of the Department of Defence.

Mr Landers suggested that the phrase "or the Department of Defence" should then also be deleted from the last line of the proposed Clause 3(2) for consistency.

Ms Netshitenzhe responded that this could not be done and stated that that phrase has to be included because it provides that the employees of both SAPS and the Department of Defence may be subject to these security clearances, and does not refer to the authority that would be conducting these investigations.

Mr Landers agreed.

The Chair noted that Members agreed to Amendment 5.

Amendments 5 to 7
The Chair noted that Members agreed to these amendments and to Clause 3, as amended.

Clause 7
Amendments 1 and 2
The Chair noted that Members agreed to these amendments.

Amendment 3
Mr Landers stated that this deletion is not reflected in the Bill, because that sub clause has not been deleted.

The delegate from the Intelligence Ministry proposed that Members agree that the document containing the NCOP amendments reflect the authority and intention of the legislature and not the current wording in the Bill, as it does not contain the latest amendments.

Mr Landers accepted this, but contended that the problem here is that the NCOP proposed amendments do not provide the reasons for the deletion.

Ms Netshitenzhe informed Members that the NCOP proposed this amendment because Clause 7(4) is a repetition of Clause 3(5), and the former should thus be deleted.

The Chair noted that Members agreed to this amendment and to Clause 7, as amended. The Committee Report on the Bill was read, and it was note that Members agreed to the Report and to the Bill, as amended.

Brig Gen P Schalkwyk (DP) stated that the DP does not abstain but requested that its concern with the proposed Section 2A(1), as outlined earlier by Adv Schmidt, be noted.

Intelligence Services Bill
Clause 10
Amendments 1 and 2
The Chair noted that Members agreed to these amendments and to Clause 10, as amended.

Clause 20
Amendments 1 and 2
The Chair noted that Members agreed to these amendments and to Clause 10, as amended.

Clause 26
Amendment 1
The Chair noted that Members agreed to this amendment and to Clause 26, as amended.

Clause 35
Ms Netshitenzhe stated that this amendment was proposed by the NCOP because the recently introduced Institution of Legal Proceedings Against Organs of State Bill is a piece of legislation aimed at dealing exclusively and comprehensively with this very matter, and does therefore not have to be included in the Bill.

The Chair noted that Members agreed to the deletion of Clause 35.

Clause 40
The Chair noted that Members agreed to the deletion of Clause 40.

Clause 41
Amendments 1 to 3
The Chair noted that Members agreed to this amendment and to Clause 41, as amended.

The Chair noted that the Committee agreed to the Bill as amended, and also to the Committee Report on the Bill.

Electronic Communications Security (Pty) Ltd Bill

Clause 1
Amendment 1
The Chair noted that Members agreed to this amendment and to Clause 1, as amended.

Clause 6
Amendment 1
Ms Netshitenzhe informed Members that this amendment adds a proviso by inserting a new Clause 6(2), which provides that the information referred may not be published if such publication would compromise national security.

The Chair noted that Members agreed to this amendment and to Clause 6, as amended.

Clause 8
Amendment 1
Ms Netshitenzhe stated that "bequests" has to be included in Clause 18(2)(c) because it is included in Clause 18(8), to which Clause 18(2)(c) refers.

The Chair noted that Members agreed to this amendment and to Clause 8, as amended.

The Chair noted that the Committee agreed to the Bill as amended, and also to the Committee Report on the Bill.

Brig Gen Schalkwyk stated that the DP agrees with the Bill as a whole, but not with Clause 18.

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

Appendix 1

The Select Committee on Security and Constitutional Affairs, having considered the subject of the Intelligence Services Control Amendment Bill [B 50B - 2002] (National Assembly - sec 75), referred to it, reports the Bill with proposed amendments, as follows:

CLAUSE 3
1. On page 4, in line 23, after "Service" to insert ",the Academy and Comsec".

CLAUSE 7
1. On page 5, in line 31, after "7" to insert "(1).

2. On page 5, in line 48, after "office" to insert:

[: Provided that such remuneration shall be the same as that of the Public Protector appointed in terms of section 1A of the Public Protector Act, 1994 (Act No. 23 of 1994)]

Appendix 2

The Select Committee on Security and Constitutional Affairs, having considered the subject of the Intelligence Services Bill [B 58B - 2002] (National Assembly - sec 75), referred to it, reports the Bill with proposed amendments, as follows:

CLAUSE 10
1. On page 6, in line 54, after "Director-General" to insert "concerned or the Chief Executive Officer".

2. On page 7, in line 7, to omit "done in consultation with the Intelligence Services Council" and to substitute:
submitted to the Intelligence Services Council for consideration

CLAUSE 20
1. On page 11, in line 21, to omit "12" and to substitute "12(1), (2)(a) and (c).

2. On page 11, in line 23, to omit "38" and to substitute "37".

CLAUSE 26
1. On page 13, in line 20, after "member" to insert:
without the permission of the Director-General or the Chief Executive Officer, as the case may be

CLAUSE 35
Clause rejected.

CLAUSE 40
Clause rejected.

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

Validation of misconduct proceedings
39. Despite the repeal of the Bureau for State Security Act, 1978 (Act No. 104 of 1978), and the regulations made thereunder, the procedure followed by the Director-General in terms of the said regulations to-
(a) 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 any time 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 when 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".

3. On page 18, in line 16, after "Act" to insert:
unless it is inconsistent with this Act

Appendix 3

The Select Committee on Security and Constitutional Affairs, having considered the subject of the Electronic Communications Security (Pty) Ltd Bill [B 59B - 2002] (National Assembly - sec 75), referred to it, reports the Bill with proposed amendments, as follows:

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:

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

CLAUSE 18
1. On page 7, in line 7, after "donations" to insert "and bequests".

Appendix 4

The Select Committee on Security and Constitutional Affairs, having considered the subject of the National Strategic Intelligence Amendment Bill [B 51B - 2002] (National Assembly - sec 75), referred to it, reports the Bill with proposed amendments, as follows:

CLAUSE 3
1. On page 3, in line 25, after "state;" to insert "or".

2. On page 3, in line 28, after "information" to insert "and intelligence".

3. On page 3, in line 35, after "Service" to insert ",the Service".

4. On page 3, in line 35, to omit "Department of Defence" and to substitute "National Defence Force".

5. On page 3, in line 36, after "Service" to insert ",the Service".

6. On page 3, in line 49, after "may" to insert ", in the prescribed manner,".

7. On page 4, in line 19, after "Minister" to insert:
responsible for the relevant National Intelligence Structure

CLAUSE 7
1. On page 5, in line 2, after "may" to insert:

, after consultation with the Joint Standing Committee on Intelligence

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

3. On page 5, from line 21, to omit subsection (4).

4. On page 5, in line 38, after "regulation" to insert "only".