GILAB: Parliament Legal Advice on SSA response to submissions

Meeting report

Parliamentary Legal Services advice on State Security Agency response
Mr Nathi Mjenxane, Parliamentary Legal Advisor, provided legal advice (see document). The Committee commented on the following points:

Inspector General of Intelligence (IGI) proposed amendments

Point 9 • Clause 9 amending Section 7(7A)
The SSA had responded to the OIGI proposed amendment that Inspector General recommendations should be binding, stating that binding OIGI recommendations will expose the IGI process to legal challenge. It proposed that where there is disagreement the Minister intervenes and if that fails the matter be referred to the JSCI for final adjudication.

Mr Mjenxane advised that the JSCI exercises oversight over intelligence services and it is best placed to ensure implementation of the IGI recommendations / corrective measures. He proposed that the section be amended to read the intelligence services must show cause/provide reasons why they have not complied with the findings and recommendations of the IGI.

The Chairperson asked what if the JSCI disagreed with the OIGI recommendations.

Mr Mjenxane replied that the JSCI would be obliged to demonstrate its reasons for disagreeing.

The Chairperson asked what the next step would be procedurally if the JSCI agreed with the Minister’s approach but disagreed with the OIGI recommendations.

Mr Mjenxane clarified that this section referred to where the Minister did not respond to the OIGI recommendations which the JSCI supported.

Ms Kohler-Barnard (DA) said that the SSA responded that the Minister would be the first line to deal with the dispute before it is elevated to the JSCI. She did not understand that additional overlay to the process as the JSCI was the oversight body.

The Chairperson replied that the first line is between the IGI and SSA. If there is a dispute, it should be the Minister that attempts to resolve it before it is referred to the JSCI.

The Chairperson asked if the presentation should be conducted with Members simultaneously asking questions. The Committee agreed it was the better approach.

Mr Stubbe (DA) said there was a need to deliberate on the SSA responses and compare those with the legislation and the recommendations of the High-Level Review Panel (HLRP) on the State Security Agency.

Mr B Hadebe (ANC) pointed out that the JSCI has failed to enforce recommendations for decades. The amendment should include that even the JSCI should be compelled to implement those recommendations. He asked if it would be legally permissible to have strict timeframes included in the Bill to ensure that recommendations are implemented such as requesting the Department to have an action plan. He asked that if that action plan should be put into the Bill or in the regulations.

Mr Mjenxane pointed out that there is no shortage in law to hold the executive to account. There is the Constitution as well as the Powers and Privileges Act that give Parliament the power to summon people and documents to ensure compliance. There is no legal impediment to using timeframes as it is an effective oversight mechanism. The mechanism of making the OIGI recommendations binding would not be constitutionally viable to do so. It is unlike the reports of the Public Protector which is a Chapter 9 institution where one engages differently with reports from those of the OIGI.

Ms Kohler-Barnard asked Mr Mjenxane what he envisaged the consequences to be since the JSCI noted that OIGI recommendations had not been implemented for many years. If the JSCI gives the SSA eight or nine months to implement recommendations and the SSA fails to do so, what might the consequence be?

Mr Mjenxane replied that the design of the Constitution means that Parliament cannot be the implementer itself. Where recommendations are related to criminality, there are organs of state that deal with that such as the National Prosecuting Authority (NPA) and the police. The Committee could refer such matters to those institutions for investigation. Where there is a ministerial overreach, the oversight mechanism is within the Committee to hold the Minister to account.

The Chairperson commented that Members had been discussing the failure of Parliament to hold the executive to account. There is mechanism in the legislation already but it is the legislature that fails to hold the executive to account.

Ms Kohler-Barnard disagreed with the Chairperson’s view. The JSCI had called various departments over and over and those departments had given the Committee a litany of excuses. That is why she is asking what the consequences could be. The Committee had done a thorough job but it was undermined by the executive.

Mr Hadebe agreed with Ms Kohler-Barnard that there must be recourse if the Department failed to implement recommendations. Similar to the Auditor-General mechanism where departments are obliged to come up with action plans, the JSCI needed a similar mechanism built into the Bill to achieve the same purpose.

Mr Stubbe agreed that whatever the Committee could put in, it should do so.

Mr Mjenxane replied that because Parliament exercises political accountability through oversight, it can only end there. Section 92 of the Constitution outlines that ministers exercise the power that is delegated to them by the President. If the ministers are not doing their work, it would be the President who would hold ministers accountable. If it is the President who does not comply, it would be for Parliament to bring the matter to the House which is the highest decision-making body in Parliament to politically embarrass the executive for not doing what they are supposed to do. There is no other recourse in law other than that. There are other creative mechanisms that have been adopted by committees such as the Standing Committee on Public Accounts. SCOPA recently has entered into an MoU with SIU on non-compliance. For the IGI, if there is criminality case, the JSCI could work with the relevant institutions to enforce the recommendations.

Mr G Hendricks (Al Jama-ah) enquired about the possibility of imposing tougher sanctions on the officials or executives that failed to oblige the Bill's provisions. For instance, the National Environmental Management Act (NEMA) has sanction measures if executives do not carry out responsibilities. They could be charged in court and be imprisoned or fined. Could sanction measures be replicated in this Bill? He was still of the view that the OIGI should be given similar powers to those of the Public Protector, although he was aware of reluctance to do that. He made this point because he agreed with Ms Kohler-Barnard that the JSCI had made its best endeavours to get the OIGI recommendations implemented, but the executive always comes up with excuses to delay implementation.

In terms of independence, the Chairperson noted the HLRP Report says that the IGI recommendations must not be binding.

Mr Hadebe corrected him on what the HLPR Report is saying. On page 93 the HLRP noted that the 2006 Task Team Report recommended that the IGI findings should not be enforceable but serve as recommendation. However on page 94 the HLPR pointed out that no action or consequence management had taken place in response to the IGI Reports between 2006 and 2018. The HLRP suggested that perhaps the IGI recommendations should be binding like the Public Protector and that "this would need further thought".

Point 12 • Clause 11 amending Section 7(12)
The SSA response to the IGI proposed amendment that the Inspector-General determine the OIGI organisational structure was that the impact on the budget might not allow implementation.

The Chairperson asked if anyone has ever come across legislation that cannot be made because of a lack of funds.

Mr Mjenxane advised that he did not understand the SSA response because the IGI exercises power according to the Constitution and relevant legislation. The impact of the OIGI will be the same on the fiscus because the Amendment Bill does not add a new function to it. The amendment to section 7(12) only seeks to ensure the autonomy of the OIGI and for its funding to be appropriated from Parliament.

The Chairperson said that his question was unanswered. Is legislation made because there are resources or because something has to be changed? He disagreed with SSA response that “the impact on the budget might not allow implementation”. The point of the legislation is to correct the anomaly.

Mr Mjenxane clarified that there is relevance to considering budget in making law but Parliament cannot be constrained in making law just because there is no budget.

Point 16 • Clause 2 amending Section 2(b)(iv)
The Chairperson read out the definition of counterintelligence in the original Act with emphasis on the wording “impede and neutralise”. He suggested leaving the definition as is since the definition is already in the Act.

Mr Mjenxane said that the Committee would have to assess if the definition in the Act coheres with what is in the Amendment Bill.

Mr Stubbe pointed out that the Act's definition states to impede or neutralise "foreign or hostile intelligence". He agreed with Mr Mjenxane that the Committee must decide if this definition is still applicable to this Amendment Bill.

The Chairperson said that hostile could take place domestically and asked Mr Mjenxane to check the context for the Committee.

Point 17 • Clause 2 amending Section 2(b)(ix)
Ms Kohler Barnard questioned how the JSCI fits in when there is a national security briefing to these entities and presumed that these were open briefings. She highlighted that HLRP did say that there needs to be more openness to the public. She said that the involvement of the judiciary here was unacceptable.

Mr Stubbe pointed out that section 2 of the Act did not mention the judiciary as it was confined only to the Chief Justice.

Point 20 • Clause 32
Ms Kohler-Barnard suggested a specific deadline for the review of the regulations.

Mr Mjenxane fully agreed with that suggestion because having a deadline is an effective way of oversight.

NICOC proposals

Point 22 • Clause 2 amending Section 2(b)(ix)
NICOC proposed the deletion of members of Cabinet in line with Section 4(2)(a) of the Act which gives NICOC the mandate of interacting with Cabinet. SSA responded that the conduct of counter intelligence is not coordinated by NICOC. SSA stated that Cabinet decided that there is a need for the Domestic Service to provide periodic national security briefings on Counter-Intelligence and Domestic Intelligence to the three arms of the state.

Ms Kohler-Barnard was concerned that NICOC was cut completely out of national security briefings as its mandate is to collate information for Cabinet. This process was incorrect.

Mr Hadebe highlighted the July 2021 unrest and sought clarity if the Minister had briefed NICOC. What were the public expectations in dealing with this matter?

Mr Stubbe referred to the current section which included the JSCI, Cabinet members, Parliamentary Presiding Officers and the Chief Justice. The NICOC proposal is to remove Cabinet members from this clause. The Committee should look into why NICOC is left out because it is for counterintelligence.

Mr Mjenxane replied to Mr Hadebe that the issue that contributed to the July 2021 unrest was the lack of coordination between intelligence structures. The only recognised service to coordinate intelligence services is NICOC. He could not answer why counterintelligence was not part of coordinated intelligence. The Department needed to respond to the question.

The Chairperson noted that this was a NICOC proposal and not an IGI proposal.

Ms Kohler-Barnard said that domestic intelligence does fall under NICOC – she did not know what the SSA was thinking when the Amendment Bill was drafted.

Mr Mjenxane referred to the National Strategic Intelligence Act for the definition on 'counterintelligence'. The NICOC proposal is the deletion of members of Cabinet as one of the functions of NICOC in Section 4(2)(a) of the Act is to interact with Cabinet. SSA counters that and says the Domestic Service will do that.

The Chairperson said the confusion was with the word 'members', whether that referred to individual ministers or Cabinet.

Mr Mjenxane agreed.

Mr Hadebe said that it would be prudent to get a clear understanding and clarify some of the terms going forward. The Committee needed to ask the Department for clarity and a virtual platform can be arranged for the Department to participate.

Point 24 • Clause 5 substituting Section 4(3)
NICOC proposes that it be the Coordinator for Intelligence and the Coordinator may determine the organisational structure of the Office of the Coordinator with the approval of the Minister. SSA said its responses provided on OIGI are also applicable to NICOC.

Mr Stubbe commented that the HLRP had stated that NICOC should be in the Office of the Presidency and that is not the case with the OIGI. What applies to NICOC should not be applied to OIGI.

Mr Mjenxane agreed and said that it was unclear why the Department had not implemented that recommendation.

Mr Hadebe agreed and reiterated that NICOC and OIGI should be treated differently as stated by the HLRP.

Mr Mjenxane noted that the Committee could decide if NICOC should be placed in the Presidency as it would still be under the control of the Minister.

SAPS Crime Intelligence proposals

Point 27 • Clause 1 definition of 'cybersecurity'
SAPS noted that it is unclear how this will impact on the Cybersecurity Bill which the Department of Justice is responsible for. SSA responded that it and not the Department of Justice is drafting the Cybersecurity Bill.

Ms Kohler-Barnard was surprised that it seemed as if the SSA was drafting the Cybersecurity Bill which she had never heard before. As far as she was aware, the Justice Portfolio Committee was dealing with that Bill. Mr Stubbe agreed.

The Chairperson suggested that this last sentence in the SSA response is irrelevant. The inclusion of the definition of cybersecurity is the point.

Mr Mjenxane endorsed the Chairperson’s view. He pointed out that in legislative development, it is not done that one Bill can be subject to another Bill. A Bill can be subject to an Act of Parliament that is already passed. Bills can always be withdrawn or expire. The cybersecurity function is being executed by the National Communications Centre (NCC) as a counterintelligence function.

Public comments / proposals
Point 32 • Clause 1 definition of 'person or institution of national security interest'
 Mr Hadebe noted that the SSA response it had given the day before was not satisfactory.

Mr Hendricks stated that there is a new strategy on regime change which was done through the ballot box where hostile forces fund political parties to overthrow the incumbent governing party. Thus a definition of regime change must be adapted to changing times.

The Chairperson pleaded with Mr Hendricks that such deliberations take place later when the Committee deliberated on the Bill.

Point 32 • Clause 1 definition of 'threat to national security'
Public comments stated that the definition is overbroad and open to abuse.

Mr Stubbe said that the definition must be read with “does not include lawful political activity, advocacy, protest or dissent".

Point 31 • Clause 1 definition of “opportunity or potential opportunity”
Public comments said the definition is ambiguous, overbroad, subjective, and circular.

Mr Hadebe reiterated the SSA response on 'opportunity or potential opportunity' which was the SSA supports the definition in the Bill and proposes the deletion of the words “ potential opportunity”. He asked Mr Mjenxane to provide more clarity.

The Chairperson recalled that the explanation given yesterday in the SSA response was on 'bulk interception' which does not simply look at communication, it also looks at weather patterns, radiation levels, images and so on. In doing that, 'opportunities' might feature some more examples.

Mr Hadebe asked if Mr Mjenxane was satisfied with the SSA explanation.

Mr Mjenxane referred to the Bill for the definition of 'potential opportunities'. Section 198 of the Constitution is broad on national security. He has no issue with the term 'opportunity' but there has to be checks and balances because it is an open-ended term.

Point 41 • Clause 1 definition of bulk interception
Mr Stubbe said that the Committee needed to make a note here and deliberate on the issue.

The Chairperson enquired if a timeframe could be inserted here and if it is allowed legally. For instance, if the amendment were to say that annually there must be a report to the judge but he did not think that it should be reported every time it harvests.

Mr Mjenxane replied that in terms of the Amabhungane judgment, interception as a practice might be unconstitutional. Even when monitoring foreign signals, it is possible that local signal would emerge. The SSA view is that in that instance the interception would halt so that a RICA process would take place. He was concerned that by the time a local signal is picked up, it has already been intercepted without direction. It cannot be justified that there is a breach of law first before the error can be rectified. That is why there are built-in safeguards in this practice. Building in safeguards in bulk interception is inevitable because interception of communications is intrusive and goes against what is guaranteed in the Constitution. There is a need for further refinement of that power that is vested in the NCC. This cannot be put in regulations and must be put in the legislation because regulations are not subject to public scrutiny.

The Chairperson asked if it is doable.

Mr Mjenxane affirmed that it most certainly was. It is accepted that bulk interception does not fall under the scope of RICA. Rules can be devised to build in safeguards within the context of bulk surveillance. Further, when anyone exercises a public power which is given to them by law, it must be done so within the confines of the law, including dealing with state or non-state entities outside the Republic.

The Chairperson agreed that this definition should be deliberated on.

Mr Hadebe proposed that further clarity should be sought from SSA on bulk interception.

• The last point by SSA which the document did not contain is the proposed mandate of the South African Intelligence Service (SAIS): "Consideration should be made to strengthen the mandate and functions of SAIS in the Bill. It is recommended that the following additional paragraphs be included in the Bill to allow the foreign service the full mandate to fulfill departmental responsibilities. It is proposed that amendments include the following as part of the functions of SAIS under section 2: To institute counterintelligence and to gather departmental intelligence at the request of any interested department of state and without delay to evaluate and transmit such intelligence and any other intelligence at the disposal of the service and to provide national security briefing to the JSCI, members of Cabinet and Parliamentary Presiding Officers.

In response, Mr Mjenxane highlighted two Constitutional Court judgments South African Iron And Steel Institute v Speaker Of The National Assembly and South African Veterinary Association v Speaker of the National Assembly. He warned the Committee that those two precedents made it clear that the Committee should not entertain this new additional proposal because the SSA had brought it forward only after the public consultation period had ended. The public had not been consulted on this new addition. It is constitutionally impermissible, particularly on significant matters such as bulk surveillance. The SSA seems to be suggesting the replacement of a judge with the OIGI. It came as a shock that the OIGI would be considered independent to oversee this process.

However, this does not preclude the Committee from adding its own amendments during its deliberations. The National Assembly Rule states that if a Committee intends to amend a section of the Act that is not in the Amendment Bill, the Committee must seek the permission of the National Assembly via a letter to the Speaker.

Mr Hadebe thanked the parliamentary legal team for the presentation. He suggested the Committee should apply its own mind to the Bill and add those safeguards in the public interest. The Committee is not obliged in any way to take all the SSA inputs including on the IGI.

The Chairperson sought assurance if the Committee had the legal mandate to make insertions on what is already there as safeguards. Or must it approach the Office of the Speaker to do that?

Mr Mjenxane explained that how the Bill will look like after deliberations will be based on how the Committee deals with all the information received from the public participation submissions; but that has to be done within the confines of the law. In addition, he emphasised that the IGI already oversees the intelligence services. If the bulk interception were to be given to the NCC, the IGI would still be responsible for overseeing it even without the Amendment Bill. The issue of safeguards is completely different from the IGI oversight process.

Ms Lisa Naidoo, Office of the Chief State Law Advisor, agreed with Mr Mjenxane about the responses. It is very likely that the Minister of State Security would be overseeing and discharging the duties of the Cybersecurity Bill. There can be legislation which affects more than one executive authority in the legislative development process.

Mr Hadebe proposed that the Committee should utilise the Monday 11 March 2024 meeting to get outstanding clarity. If it is convenient for Mr Mjenxane, he would be happy to receive writing responses.

The Chairperson asked if the legal teams could attend when the Committee deliberates on the Bill on Monday.

Mr Mjenxane assured the Committee that he would be with Members throughout the process and State Law Advisor Ms Naidoo would also be assisting the Committee.

The Chairperson adjourned the meeting.