GILAB: SSA response to submissions; with Minister

Meeting report

The Chairperson asked Committee members to introduce themselves as the Minister in the Presidency was present.

State Security Agency (SSA) responses to public inputs
The SSA delegation included State Security Agency: Ms Khumbudzo Ntshavheni Minister in the Presidency; Ambassador N Bam, Acting Director-General; Mr L Jafta Deputy Director-General: Foreign Branch; Ms Jennita Kandailal Acting Deputy Director-General: Corporate Services; Ms Joyce Mashele Deputy Director-General; Dr J Schoeman General Manager: Economic Intelligence; Ms R Nhlapho Chief Auditor Executive; Mr Z Mshunqane Policy Advisor; Dr Elijah Luvhengo General Manager: Information Services

Ms Joyce Mashele, DDG: State Security Agency (SSA), took the Committee through the SSA responses (see document).

Minister’s remarks
Minister Khumbudzo Ntshavheni commented on the NICOC and OIGI proposals that they are each responsible for the organisational structure and personnel appointments. The current arrangement is limited. But the Department has been working with both to ensure that it would not require an amendment to the law because it would make them both referee and player in everything. For instance, she noted the IGI positions that have not been filled since she took over responsibility as Minister. This could have been sorted out through delegation as the Minister can delegate appointments through the Inspector-General up to a particular level, then appointment to other positions may be done in consultation with the Minister. The challenge of giving the two bodies all these powers goes against what the High-Level Review Panel proposed. Equally, in budget administration, her department has improved by giving OIGI and NICOC certain delegations related to the budget. She reminded the Committee that the budget for SSA came directly from National Treasury as it did not have its own budget vote. If Parliament is to give budget votes to NICOC and OIGI, that would impact the current arrangements with SSA. She was confident that the shared arrangement and model would work. In addition, the proposal would enable NICOC to be autonomous and yet be subservient to the Director General of the Agency.

Second, the Minister talked about the use of bulk interception. In any jurisdiction, bulk interception is for the foreign service. The US government got into trouble for using that domestically. Government intended to separate bulk inception from targeted interception and surveillance. She assured the Committee that there would not be any abuse of the privacy of South Africans by using bulk interception domestically. To ensure that, the Bill has a provision that the IGI does oversight and reports to the Minister and the JSCI.

On security competency assessment on persons and institutions to detect threats to national security, the Minister proposed expand the definition of vetting to include vetting for the purposes of identifying threats to national security.

Discussion
The Chairperson asked the Agency if those were the only additions to the Bill.

The Chairperson noted that the provision “foreign service be mandated to conduct counterintelligence with regards to its own personnel and operations, should be able to conduct security competency assessment for its members, provide security for its operation abroad so that they are not left with the agency” had existed in the former legislation but fell away for some reason.

The Chairperson noted the second provision on departmental intelligence. The Bill provides that the SSA will gather, collate, disseminate intelligence to NICOC. The provision is only made for NICOC and not for other departments. The provisions indicating domestic service should also reflect for foreign service because foreign service has to provide departmental intelligence to certain departments which align their mandates in foreign environments.

The Chairperson said he was satisfied with the SSA responses to the public submissions.

Mr B Hadebe (ANC) requested the responses be forwarded to Members in writing so that Members could understand these. He commented that the content may be easier for a veteran like the Chairperson but not for Mr Hadebe himself.

The Chair asked if the Department had added a clause to the vetting definition that would expand the scope of the persons to be vetted.Previously, only people who have access to classified documents will be vetted. Does it suggest that it be extended to more people? Since vetting is voluntary for a person, how would the SSA enforce it if it wants to vet a person of national interest and that person refuses as it violates that person’s privacy.

Ms D Kohler-Barnard (DA) remarked that it took the SSA seven or more years to draft this Bill. Committee Members were now all of a sudden reading opinions on a previous draft Bill that Members had never seen. She found it concerning that the SSA proposes to remove "potential opportunities" and that this decision had been endorsed by Cabinet and successfully gone through all the processes. She found it suspicious.

She did not understand how a security competency test would be conducted without equally threatening our citizenry such as if you do not pass the test, you would have to shut down such organisations such as churches.

Ms Kohler-Barnard highlighted the HLRP recommendation for greater independence for NICOC and the IGI. Members had also heard that even secretaries were being appointed by the SSA despite such staff being part of a body that should be overseeing the SSA. She noted Minister Ntshavheni’s remark that she had not made any appointments since she took over the portfolio. However, given the high turnover of ministers, there is no guarantee that the next minister would not do so. Based on that, she believed that the appointment of IGI employees should be legislated in some ways.

Ms Kohler-Barnard said that the Committee was resolute in following the Constitutional Court judgment on bulk interception. No Committee will ever allow a constitutional shortfall. The majority of the public mistakenly believe that bulk interception takes place on every phone call in South Africa.

The Chairperson cautioned Members to be careful in using words such as “can’t allow” because the Committee would still have to deliberate on the Bill.

Mr D Stubbe (DA) requested the SSA response document be forwarded to the Committee so that Members could verify those responses against the HLRP recommendations.

Mr Stubbe asked why the SSA did not stick to the definition of domestic intelligence as it was in the National Strategic Intelligence Act.

Mr Stubbe wanted to know how vetting could be applied to detect a threat or what may be a threat in future. He asked what the HLRP had stated in that regard.

Mr Hadebe sought clarity on Section 41 bulk interception and targeted legal interception. His understanding was that bulk interception might intercept communication within the country. He asked if the Department is putting a halt to bulk interception by the introduction of this Bill because the section 14 of the Constitution protects people’s right to privacy including having their right to communication not infringed upon.

He asked if the Department intended to remove both 'potential opportunities' and 'opportunities' from the Bill.

The Chairperson responded that the Department was not removing 'opportunities', only removing 'potential opportunities' and 'potential threat'.

Mr Hadebe was of the view that even opportunities would open a gap for abuse and asked the SSA why it proposed to remove one instead of both.

The Chairperson explained that in intelligence work, the SSA is not only looking for threats but opportunities as well. He thus asked the Department if there was any other term that could narrow down the scope.

Mr Hadebe referred to the definition of 'domestic intelligence' as “any internal or potential threat to national security”, so that is already covered in the current definition. He did not understand why it would only remove 'potential opportunities' and not 'opportunities'.

The Chairperson replied that he and Mr Hadebe were speaking about different things. Opportunities might not be a threat and may even be a positive thing. However, he would leave the Department to answer Mr Hadebe’s question separately.

Ms Kohler-Barnard asked if the Minister’s reference to a Bill was to the Regulation of Interception of Communications and Provision of Communication-Related Information Amendment Bill (RICA Bill) that is also answering to the Constitutional Court judgment. She suggested the need to align the definition of 'interception' to what the Justice Portfolio Committee stated in the RICA Bill.

Mr Hadebe noted the proposed conflict resolution mechanism between the SSA and OIGI. If there is a disagreement, the Minister intervenes to resolve it and only if the Minister fails to resolve the matter, can it then be referred to JSCI for final adjudication. He asked if the Department did not support that the IGI recommendations / corrective measures should be binding. His observation is that the recommendations have not been implemented and the JSCI cannot enforce that either. It had failed to enforce those throughout the years. He asked how the Department would ensure implementation of the IGI recommendations.

The Chairperson disagreed with Mr Hadebe and indicated that IGI recommendations cannot be binding and the JSCI cannot make them legally binding – simply because the JSCI failed to do its job. JSCI can see to it that those recommendations are implemented and make that clear to the Minister because of the JSCI’s oversight role.

Mr Hadebe questioned if ring-fencing budgets for NICOC and the IGI and having them responsible for their appointment of staff were sufficient for their independence. He suggested that safeguard measures are needed to ensure their independence would not be affected by whomever the minister is.

Mr Hadebe needed clarity on the SSA response to the concern about Clause 2(v) "impede and apprehend". The SSA suggested that 'apprehend' will be removed and replaced by “impede or “neutralize”. He wanted to know if the authority impedes or neutralises an individual, whether that is not interfering with a person’s right.

The Chairperson suggested to the Department to circumvent those terms because he did not think those terms existed in law. 'Neutralise' in the army could mean killing someone; 'impede' could mean stab someone with a knife. Those terms need to be qualified to exclude those instances and to be within the ambit of the Constitution. He warned the Department that wrongful arrests could lead to the SSA being taken to court.

Mr Hadebe agreed with the Chairperson about the lack of obligation of an individual to be subjected to vetting. The definition in its current form only vets people who have access to classified information but that is insufficient to deal with potential threats to national security.

Mr G Hendricks (Al Jama-ah) described it refreshing that this Committee had gone out to get the views of the streets through public participation. The Minister had responded positively to the concerns of the streets which he called a good start after a long delay in drafting this Bill.

He was concerned that the staff at security services do not get the basic labour right to protest. He was glad that the Minister supported alternative dispute resolution but the Committee may have to amend the Arbitration Act to allow this to happen.

Mr Hendricks called it unacceptable that religious leaders must be vetted by security forces. He recommended peer control accredited structures to execute that function. To ask the SSA to vet religious leaders is out of place in a democracy.

The Chairperson interjected and reminded Mr Hendricks to ask questions of clarity on the SSA responses.

Mr Hendricks noted that the South African government has signed the Convention prohibiting torture and torture should not be tolerated. What are the checks and balances to ensure that?

On bulk interception, the Al Jama-ah’s party position is clear as the case is in the Supreme Court. The DA and Action South Africa are using a grabber in the City of Johannesburg to collect information which is a concern.

Mr Hendricks emphasised that civilian oversight is very important. He wanted to know why the Minister opted for the ring-fencing of the OIGI budget if the intention is to ensure independence of the IGI. Would not Parliament would be in a better position to be responsible for that? If there is a fall-out, ring-fence could be fenced as the very entity that is overseeing SSA cannot be dependent on SSA.

Mr Hendricks said that what had been observed was that the July 2021 unrest briefings made by the three ministers of police, intelligence and defence gave different accounts of the same thing. That is a concern. The country needed to clearly know who is in charge of security.

The Chairperson interjected and reminded Mr Hendricks to focus on the presentation content. For instance, the Bill does not speak about torture. Given the time constraints, he wanted Mr Hendricks to stay focused instead of veering off the topic. He asked the Committee about extending the meeting later that afternoon or to the next day.

Ms Kohler-Barnard agreed to reconvening after 5pm. Mr Hadebe indicated that he would join the meeting virtually if the meeting was after 5pm.

The Minister preferred reconvening after 5pm as she did not think that tomorrow would be possible.

The Committee agreed to reconvene after 5pm.

Mr Hendricks pointed at the Department’s temptation to make arrests.

Evening session

Minister and SSA response
An SSA official responded to Members’ question about the possible refusal of an individual to be subjected to the vetting process. The SSA has engaged with the Department of Public Service and Administration (DPSA) and has made it clear that persons appointed in those prescribed categories should have a prerequisite in their appointment contract of a security competency test.

Minister Ntshavheni added that a decision had been made at the Cabinet level that no one would be taking up the job until the vetting process has been concluded. There is always the provision that the appointments made by Cabinet are subject to qualification, verification and security clearance certification. Employees could lose their jobs if they fail to meet that prerequisite.

The Chairperson sought clarity if the Bill stated vetting or screening. He noted that Minister Ntshavheni said vetting. He wanted clarity if the SSA only does vetting and not screening.

Mr Hadebe pointed out that the 'may' in section 2(8) should be replaced by 'must'. The wording should change to "successful applicant must undergo vetting" to make that compulsory.

An SSA official replied that if a person is successful in a job application in the public service sector, one of the conditions of appointment in the HR negotiations is that the person must be willing to be subject to vetting. The vetting is an ongoing process and that these individuals are continually vetted from time to time and it is not a once-off process.

On the expanded definition of vetting, he explained that threats to national security are not limited only to persons who have access to classified information or critical infrastructure. This could also include persons who become of national interest. SSA received requests from time to time from other agencies with which it has bilateral relations to verify individuals who have interests in investing in those countries. Also, for people in supply chain, the SSA has also been asked to conduct vetting by government to pick up any pattern related to corruption. The latter population, although not of national interest, could become a threat to government should such situations be true.

Clause 4(b) amending Section 3(5) empowers the Agency in a prescribed manner to access information. It would need that clause to enable it to detect, for instance, the threat of terrorism. If a company is awarded a contract by a government department, the SSA needs to conduct an assessment to see if that company has any link with organisations that are posing a threat to national security.

On bulk interception, Mr Loyiso Jafta of the SSA, explained that the job of an intelligence agency is using various methods including technology-based methods to scan the environment which included the foreign environment as well. He distinguished between the scanning of the environment and the targeted gathering of intelligence. Typically, targeted interceptions happen within the territory of a sponsoring country that is underpinned by safeguards such as a designated judge authorising interception for a limited period of time. Bulk interception in the main happens outside of the sponsoring country. What SSA asked for is an enabling legislation so that this can be done legally. For instance, an optical satellite image can pick up what a country is doing with a deep sea water port which could be used for commercial purposes. Once certain characteristics are picked up and a red flag is raised about the port being used for military purposes, then the SSA could, within legal means, use other intelligence methods to investigate.

Mr Jafta replied that the RICA Bill principally addresses interception of communication within a sponsoring country to support a law enforcement agency. The current legislation tightly regulates, but it also gives latitude to governing domestic-targeted intelligence operations. For instance, there is software and technology available to non-state entities that could be used for purposes of intercepting information or stealing data. The RICA Bill puts measures in place to govern that and ensure there are sanctions against those who employ such applications.

Mr Jafta assured the Committee that “impede and neutralise” will be done in a prescribed manner in accordance with the Constitution. No measure instituted to disrupt an activity that poses a threat to national security falls outside the boundaries of Constitution or the law. The SSA has no intention to invest by any means the Agency with a mandate that is not explicitly provided for in law. The Agency has no mandate to apprehend anyone, apprehension of a person by the Agency would be illegal. If X is in the business of trafficking drugs, the Agency cannot apprehend that person. So the normal procedure would be that the SSA will tip off the metro police to mount a roadblock in order for the metro police to make the arrest.

An SSA official said that the HLRP did not recommend the creation of the OIGI or NICOC as separate entities as budgetary constraints would not allow such. On the autonomy of OIGI and NICOC, the SSA proposes a model which is similar to how National Treasury currently appropriates the SSA budget. The Bill inserts Section 4(4) that "The budget of the NICOC shall be appropriated by Parliament as part of the budget vote of the intelligence services, and shall be expended in accordance with the rules and procedures set out in the Public Finance Management Act". National Treasury indicates the funding that is earmarked for NICOC. NICOC then determines how this ring-fenced budget is apportioned and expended. The financial reporting would be part of the SA Intelligence reporting to National Treasury.

Both NICOC and OIGI would be supported with functional elements of processes by the review services model after having consulted with all relevant stakeholders. There would be standardisation of systems and processes particularly governance processes on appointments. The Bill would ensure that the delegation of powers to appoint at different levels be amended to public service best practice as well as to accord greater autonomy to both NICOC and OIGI. Specifically, to address the concerns of Mr Hadebe as well as Ms Kohler-Barnard, these mechanisms that are outlined will be institutionalised with updated regulations to ensure that it is minimally impacted on by any change in the executive authority.

Mr Jafta replied about making the IGI recommendations binding. Where there is no dispute, there is no question that those recommendations be given effect and the accounting officer has the responsibility to do that. The accounting officers include members of the executive and the legislature is the oversight body. Where there is dispute, then the minister should ensure that there is a common understanding and give a directive about what must happen to those findings and recommendations. Where the dispute is beyond the intervention of the minister, then the JSCI is the final arbiter on those disputes. The reading of the word 'minister' refers to the ministers of intelligence services entities include the Ministers of Defence and Police who are responsible for the intelligence division within those departments.

The Minister added that the current arrangement sustains and suffices. Parliament has the ultimate authority to make the IGI recommendations binding.

An SSA official commented on the removal of only 'potential opportunities'. The intelligence instrument seeks to assist government in being an active agent of the state to exercise its control over threats, risks and opportunities. The SSA noted the concerns of the public on the broadened definition on 'opportunity'. The Department viewed it as the country’s socio-economic growth, security and competitiveness within the parameters of section 198 of the Constitution in which it envisaged the principle of South Africa's national security.

On departmental intelligence, Ms Joyce Mashele from SSA replied that there are departments that are organs of state whose mandate is to operate outside of South Africa such as in the areas of trade and international relations. This is the environment where the foreign service would be operational and that is the 'departmental intelligence' that we are talking about. This could mean to enhance South Africa's negotiation positions, also to forewarn about threats and opportunities that arise from such relationships. It is an environment where the domestic service would not necessarily be operating. It would be critical for both the domestic and foreign service to coordinate because whatever the foreign service does, the SSA must always refer to the implications for South Africa. The domestic service would also become critical in ensuring that threats are attended to in South Africa.

The Chairperson requested the provision be more specific as laws should be made simple for ordinary people to understand. The clause may be ambiguous and should be tightened up to avoid confusion.

Ms Kohler Barnard asked if 'the document' was the same document that had been lodged in Parliament but then was sent back and declared unconstitutional.

Mr Hadebe asked SSA if the safeguards for RICA are not applicable to bulk interception.

The Chair agreed with Ms Kohler-Barnard that Parliament has not seen that document.

Minister Ntshavheni replied that the document is the one that the Department had submitted to Parliament which is now before the Committee.

Minister Ntshavheni replied that RICA Bill is for domestic purpose whereas bulk interception takes place in a foreign context. There are safeguards to ensure that no bulk interception will be taking place domestically.

In answer to Mr Hadebe, she said that the safeguard is that the OIGI would ensure, as an oversight body, that no bulk interception takes place in the country.

The Chairperson remarked that the Evaluation Committee was never established. His understanding was that some powers were operational and that that committee may have to be established by the President. He asked if the SSA does not want the Evaluation Committee to be established and wondered if the SSA or the Ad Hoc Committee should ask the President this question.

The Chairperson adjourned the meeting.