GILAB: Committee proposed amendments

Meeting report

The Committee’s agenda of the day was the consideration of the Committee proposed amendments for the General Intelligence Laws Amendment Bill.

The Chairperson read out each proposed amendment and the Committee discussed these with reference to the SSA response to public submissions. The Parliamentary and State Law Advisors as well as the SSA were present to answer queries as they arose.

Proposed Amendment 1: 'Monitor' means to oversee, examine, evaluate and investigate compliance of the intelligence and counterintelligence activities of a Service with the Constitution, applicable laws and relevant policies

Mr Hadebe supported the amendment.

Ms Kohler-Barnard (DA) asked if 'service' should be replaced with 'national intelligence structures'.

Mr Nathi Mjenxane, Parliamentary Legal Advisor, replied that 'service' is defined as foreign service. To avoid confusion, national intelligence structure includes foreign service as well.

The Chairperson agreed with Mr Mjenxane.

Proposed Amendment 2: 'Review' means to oversee, examine, evaluate and assess the conduct of intelligence and counter- intelligence activities of a Service

The Committee supported that amendment.

Proposed amendment 3: Significant Intelligence Failure means, but is not limited to, an incident, act or omission, which has occurred within a Service’s statutory mandate, which resulted in a failure by that Service to comply with any of its statutory functions and operational priorities and which impacted on a national security interest of the Republic.

Ms Kohler-Barnard was unsure about the legality of the clause and the way in which those words were used; but she did not have an issue with the content. Is it legally relevant that one is of necessity stronger and more forceful than the other? That is the one which she would opt for.

Mr Mjenxane said that 'comply' would be more appropriate in this context than the word 'fulfil'. One complies with the law but one fulfils obligations.

The Committee agreed with that view.

Proposed amendment 4
The Committee agreed that the clause should be retained as it is since unlawful and illegal mean the same thing.

Mr Hadebe (ANC) wanted to know the implications of using both terms 'unlawful and illegal'.

Mr Mjenxane agreed with Ms Kohler-Barnard’s view that the additional 'illegal' would not add any value to the clause, so it would make no difference.

The Committee thus supported the retention of the clause.

Proposed amendment 5
The Committee supported the amendment.

Proposed amendment 6
Ms Kohler-Barnard asked if the definition of intelligence had to be changed in the Intelligence Services Oversight Act so that there is definition consistency across all three pieces of legislation.

The Committee agreed with amendments 7 and 8.

Proposed amendment 9
The Chairperson asked for Members’ inputs on the dispute resolution mechanism. He did not think that the OIGI recommendations should be binding because it reports to the Joint Standing Committee on Intelligence (JSCI). The JSCI as the oversight body over the executive would deliberate and apply its mind. The outputs after that process then can be binding.

Ms Kohler-Barnard supported the parliamentary legal input on imposing it to be time bound: 'the Services must show cause/provide reasons as to why they have not complied with the findings and recommendations of the IGI'. However, the process has to be done within a few months because it has to be before the next certificate comes out.

Mr Stubbe (DA) agreed and endorsed that the Department has to be in concurrence with the IGI. If there is disagreement which the Minister cannot sort out, then the issue would be referred to the JSCI. The JSCI must affirm its authority and be resolute on the timeframe. It must not be delayed to the next cycle but remain within the same cycle.

Ms Kohler-Barnard suggested inserting that the Services must provide the JSCI monthly reports and reasons for non-compliance, so the Committee could monitor progress in implementation by the SSA.

The Chairperson suggested that it be on a quarterly basis.

Mr Xaba (ANC) noted that his colleagues did not support that the IGI recommendations have a binding effect. He proposed that the Committee should not accept the amendment.

Mr Hadebe summarised the three reports, the 2006 Task Team Report, the 2008 Matthew Report, and the High Level Review Panel (HLRP) on IGI recommendations being binding or not. He proposed that the IGI should be accorded the power to indicate the timeframe for the SSA to implement its recommendations and that the JSCI could ensure enforcement as an oversight body. He did not find the excuse sufficed that the system at present was sufficient in addressing the challenge.

The Chairperson referred to page 96 of the HLPR report. It did seem to the Panel that the JSCI played a poor role in curbing SSA infractions in recent years and there was no effective oversight on its part. He maintained that there is nothing wrong with the current arrangement and the problem was with the JSCI.

In s7(7a) Mr Stubbe distinguished the difference between the certificate and the investigation report to which the HLRP referred. If it is only applicable to certificates, then JSCI (unclear 1:25:40)

Ms Kohler-Barnard believed that the JSCI had done its job. She noted the lack of recourse in the Bill because the JSCI does not have the power to do anything except summon the SSA to the Committee over and over.

Mr Hadebe pointed out that what the Chairperson had read strengthened his own point that the IGI should be given the power to indicate timeframes for the implementation of its recommendations.

The Chairperson said that was what the parliamentary legal opinion stated. He did not feel it necessary that the IGI should be given the power to set timeframes.

Mr Mjenxane disagreed with that approach on the basis of jurisdiction because the IGI does not have jurisdiction over the Minister. In terms of the Constitution, the Minister reports to Parliament for their exercise of power. The JSCI has the authority to instruct the Minister to implement the IGI recommendations. Should the Minister not comply with implementation as instructed by the JSCI, the Committee could use the Powers and Privileges Act to summon the Minister. If the Minister fails to oblige, there is a penal provision that would result in criminal consequence for the Minister.

The amendment only proposed to truncate with a timeframe to ensure action on the IGI recommendations.

The Chairperson suggested three months as the maximum period.

Mr Hadebe agreed with the suggested 'on a quarterly basis or as the need arises'.

Ms Kohler Barnard noted Mr Mjenxane’s response and asked if the criminal consequence should be reflected in the Bill.

The Chairperson replied that what Mr Mjenxane meant was that is the recourse for Parliament so the Committee was covered in that respect.

Proposed amendment 10
The Committee supported the amendment.

Proposed amendment 11
The Chairperson said that the clause spoke about the autonomy of the OIGI which means ring-fence the budget and be responsible for its own administration. As the matter stands now, if the OIGI needs a cleaner or a gardener, the Minister must sign for it which does not make sense. He preferred the word 'autonomy' to 'independence' as the latter implied a separate entity altogether.

Mr Hadebe agreed with the Chairperson’s proposal to use the word 'autonomy'.

Ms Kohler-Barnard questioned if the proposed amendment was sufficient and was concerned with leaving everything to the regulations which were drawn up by the Minister. She noted that ministers had in the past try to sneak certain things back in which she observed many times. She wanted to know if that means that the budget has to be ring-fenced.

Mr Mjenxane indicated s7(12) of the Act is being amended. It reads as follows:
The Minister may, after consultation with the IGI, appoint such persons to the OIGI as maybe necessary for the performance of the function of that office on such employment conditions that is applicable to members of intelligence services.

The proposal is as follows,
The Minister—
(a) must, after consultation with the Inspector-General, appoint such number of persons to the office of the Inspector-General as may be necessary for the performance of the functions of that office, on such conditions of employment and security requirements as are applicable to members of the intelligence services; and
(b) may determine the organisational structure and grading of the posts for the functioning of the Office of the Inspector-General in terms of the Intelligence Services Act, 2002

In essence, the Minister would be doing all these functions on behalf of the IGI. Mr Mjenxane advised that there needs to be some level of independence of the civilian oversight body. The question is who has the right to appoint the OIGI staff, the Minister or the IGI? Also, who is responsible for its organisational structure, the Minister or the IGI? Lastly, should the budget be ring-fenced or should Parliament vote for that budget?

Adv Lisa Naidoo, Office of the State Law Advisor, agreed that the creation of a Section 3A public entity in terms of the Public Service Act cannot be drafted into the legislation for the IGI at this stage without preemptive steps being followed. That involves quite a lengthy process with National Treasury doing a feasibility study and the minister initiating a government component feasibility study in terms of the Public Service Act. From what she heard this morning, the Committee seemed to prefer ensuring the autonomy of OIGI using measures such as ring-fencing the budget, giving the IGI the independence to hire and dismiss employees. She used the example of Chief Procurement Office which is based in the National Treasury in ring-fencing the budget. The Committee can even go one step further where the Inspector General as accounting officer will have control over how the ring-fenced budget is spent. The Committee should do the same with the OIGI as it had done with NICOC to ensure its autonomy. She disagreed with the SSA explanation that there would be an impact on the budget because in terms of the Public Finance Management Act the funds follow the function. The IGI will follow the function that it currently had so there is no impact on the budget.

The Chairperson agreed with Adv Naidoo that legislation has no relevance to the availability of funds. He asked Members what should be in the Act and what should be in regulations.

Ms Kohler-Barnard emphasized that the legislation should give the IGI 100% autonomy and the legal team should draft it as such.

Mr Xaba agreed about ensuring the autonomy of the OIGI bearing in mind that it is not a completely independent entity.

Mr Hadebe sought assurance that autonomy meant the appointment of OIGI staff, ring-fencing of its budget but regulations would still have to come through to the JSCI which should be in line with the legislation. He supported that certain functions should be given to the OIGI and to the Minister as its executive authority, subject to JSCI approval.

Mr Stubbe asked Mr Hadebe to give examples of such functions.

Mr Hadebe asked if the appointment of the entire staff complement should be taken away from the Minister and be vested in the IGI.

The Chairperson asked Mr Hadebe to give an example of the functions.

Mr Hadebe said that he was not privy to all the information on the OIGI staff complement. The Chairperson said that basically Mr Hadebe agreed with other Members’ views.

Proposed amendment 12
Mr Hadebe supported the SSA view.

The Chairperson said he wanted to clarify grading before he deals with Mr Hadebe’s point.

Mr Mjenxane explained that grading of posts referred to the levels of positions and the conditions of service. He referred to s8(h) of the Oversight Act. The Minister is the one who makes conditions of service at the OIGI. To ensure autonomy, he suggested the Committee consider the consequence of this clause. The way the Bill is crafted now, it is not aligned with the Committee's view to increase OIGI autonomy and improve the service efficiently without having to depend on SSA.

An Act provides the principle that gives the power. Regulations talk about how the power can be operationalised. Regulations are subordinate to the legislation.

Adv Naidoo explained that grading of posts, in terms of the Public Service Act, is the function of the Minister and the DPSA. There is a lengthy process on how to grade posts which is beyond the capabilities of the IGI. She has not seen in any legislation that a public entity grades its posts. It would not be correct for the IGI to determine the grading of posts.

Section 7 of the Act provides the IGI functions which includes a possible way of working on regulations. It could be included in the Bill which staff the IGI could hire and what functions were shared with the Minister. For instance, the Minister may hire managerial staff whereas the IGI will hire operational staff.

Ms Kohler-Barnard suggested replacing 'grading of posts' with 'filling of posts' in the Bill. She did agree that the grading of posts should be determined by the DPSA as per the Public Service Act. It is important that the IGI should be able to appoint those that the IGI would trust. She did not think that the Committee should determine what positions the IGI may or may not appoint because it would not be independence if that were the case.

Mr Stubbe agreed that the IGI may determine the organisational structure but the grading of posts must be taken out because it is regulated by the Public Service Act.

Mr T Loate (COPE) pointed out that usually the organizational structure is determined by the organization head in consultation with the Minister because that person knows what personnel are needed in the organization in order to make it effective. Thus, he supported the view that the grading of posts be removed because there is a system for doing this.

Mr Xaba was confused as the Committee was discussing the issue it had asked the legal advisor to provide advice on.

The Chairperson agreed with Mr Xaba that the Committee was debating pointlessly. They should wait for legal inputs before deliberating further.

Proposed amendment 13
Ms Kohler-Barnard said that the sentence was not a complete sentence; the Committee needed to see it within the full context.

The Chairperson pointed out that 'satisfied' was removed from the original Act.

Proposed amendment 14
The proposed amendment was supported.

Proposed amendment 15
Ms Kohler-Barnard said that the proposed amendment was expanding the definition slightly from that of the National Strategic Intelligence Act but the SSA states it needs not be expanded. She asked for an explanation of the SSA objection to that.

Mr Mjenxane explained that 'Parliament’s input noted' means that although it had noted the SSA explanation, it also noted that the SSA has not provided an alternative definition. What is in the proposed amendment came from the SSA. It would be difficult if the SSA goes against its own proposal.

The Chairperson was of the view that 'opportunities' must be retained in the Bill or that a different term with the same function be inserted. He reminded Members that intelligence operatives would be looking for opportunities during intelligence gathering.

Mr Mjenxane referred to the definition of espionage and said its implication is that of anyone who was engaged in intelligence gathering in a country where they communicated such information, would lead to espionage. He asked for the Committee’s indulgence to look for a different term.

Mr Stubbe referred to the Intelligence Services Oversight Act which also contained a definition for intelligence which could be used in this Bill. It reads as:
'intelligence' means the process of gathering, evaluation, correlation and interpretation of security information, including activities related thereto, as performed by the Services;

The Chairperson, Mr Xaba and the rest of the Committee agreed with that suggestion.

Mr Mjenxane noted the Committee’s view and would look for a more neutral term to achieve the same purpose.

Proposed amendment 16
The amendment was supported.

Proposed amendment 17
Ms Kohler-Barnard said that the clause was extremely worrying because the judiciary should not be involved due to the separation of powers. She did not know what was being proposed here. Are more people including the media to be involved? If those are closed meetings, how does the committee stop the information from leaking out?

The Chairperson suggested that judiciary needed to be taken out since the judiciary covered a wide range from a magistrate to the Chief Justice. He did not have an issue with them receiving security briefings since mayors are receiving briefings anyway.

Mr Hadebe asked if the judiciary is not being briefed at present and suggested confirming the current practice before removing it.

Mr Xaba asked if it was the Chief Justice that was receiving the intelligence briefing.

Mr Stubbe was resolute that the Committee had deliberated on this. The Committee should adhere to the Chief Justice and not the entire judiciary.

The Chairperson agreed with that view.

The Chairperson noted Mr Hadebe’s question but did not think it was a fair question.

Mr Hadebe clarified that the Committee needed confirmation of the current practice because should the Committee remove it without confirmation, it would affect the current standard practice.

The Chairperson explained to Mr Hadebe that the judiciary has not appeared in any of those Acts. The reason not to brief the entire judiciary is to avoid potential bias which would undermine the impartial function of the judiciary.

Mr Hadebe said that he was trying to understand the rationale behind the proposal and thus maintained his view that the current practice should be confirmed.

Mr Loate submitted that the judiciary as one arm of state needs to have a person that receives the intelligence briefing such as the Chief Justice.

Mr Xaba noted that this is an enabling clause which does not mean that the Chief Justice can decline to receive this information. The opinion of the judiciary should be sought on this.

The Chairperson referred to s2(b)(ix) which explicitly stated 'Chief Justice'. Further, the Chief Justice is head of the state before a President is appointed during the transition of the administration. Hence, the Chief Justice must receive the intelligence briefing. He was still of the view that judiciary should be removed.

The Chairperson suggested removing 'Members of the Cabinet' and putting 'Cabinet'.

Ms Kohler-Barnard enquired about the constitutionality to include the Chief Justice. Further, the HLRP highlighted that the country needed to be taken into confidence on a regular basis which has not happened. Almost all meetings are closed. She asked if that many people would be sworn to secrecy. Would the media be invited?

The Chairperson pointed out that to his understanding there is no law that requires that ministers be vetted despite them receiving regular briefings.

Ms Kohler-Barnard asked if there is anything in the Bill that states that the briefing content would be the same as the one that the JSCI received, or would it be completely different.

The Chairperson suggested that 'parliamentary presiding officers' should also be removed given that the JSCI is part of Parliament and would update the presiding officers.

Mr Stubbe did not think it relevant if Cabinet Members have security clearance or not because Cabinet Members are from Cabinet. The JSCI does not know what others are being told because that is within the SSA prerogative to determine what information to relay.

The Chairperson agreed with his view.

The Content Advisor noted that 'Chief Justice' was already in this section in the Act.

The amendment was supported with the removal of 'parliamentary presiding officers' and replacing 'Members of the Cabinet' with 'Cabinet'.

Proposed amendment 18
The amendment was supported.

Proposed amendment 19
The amendment was supported.

Proposed amendment 20
Ms Kohler-Barnard suggested including timeframes wherever the regulations are referred to. Ministers of this department hardly make reviews on the regulations.

Mr Stubbe agreed with that view.

Ms Kohler-Barnard sought clarity on SSA’s alternative amendment for clause 13.

Adv Naidoo referred to page 11 of Bill and pointed out that there is a definition for 'civilian intelligence structure'. Currently, it means the Service, the Agency and the Academy, and the Department’s proposal is to include any other entity established in terms of this Act.

The amendment was supported with an addition of 'no longer than 12 months' timeframe.

The SSA response was that briefing to the judiciary should be through the Chief Justice.

The SSA supported that the definition of intelligence as proposed in the GILAB will be used. The definition is consistent with that of the National Strategic Intelligence Act (NSIA).

The Committee agreed that 'the judiciary' should be removed and 'Chief Justice' be retained.

Proposed amendment 21
The amendment was supported.

Proposed amendment 22
Ms Kohler-Barnard did not note any regular briefing by foreign intelligence. Surely a war on the border is important for people to know about?

The SSA response was that it was an unintended omission and 'foreign service' should be added to briefings and counterintelligence within the Service.

Mr Stubbe agreed with Ms Kohler-Barnard’s view.

Mr Xaba said that it was a technical issue that has come up three times. He did not think that the Premiers are part of the executive. They are included as persons to receive briefings because of necessity but they are not part of the executive.

The Chairperson remarked that before amalgamation, the Act covered some of those things and asked the legal advisors to check what had been there before amalgamation.

Mr Hadebe referred to s2(c) of the NSIA saying it was not a new thing which the SSA had introduced.

The Chairperson suggested that the Committee refer that to the parliamentary legal team.

Mr Mjenxane noted the SSA request but highlighted that it would be inappropriate for the SSA to introduce amendments after public consultation.

The Chairperson noted and agreed that it should be put on record that the Committee is inserting 'foreign service' to the Bill.

Proposed amendment 23
The amendment was supported.

Proposed amendment 24
Ms Kohler-Barnard remarked that it was similar to the SSA response that there was no budget to allow the IGI to work independently. This SSA response is equally incorrect. Although the HLRP recommended for NICOC to be moved to the Presidency, she was concerned that this may result in NICOC being moved to the Minister of SSA. She was of the view that NICOC should remain where it is.

The Committee supported Ms Kohler-Barnard’s proposal.

Adv Naidoo explained that in terms of s97 of the Constitution, the movement of NICOC to the Presidency can only be done by the President. She assured the Committee that its decision was quite correct. It has to be done at the Presidency level and cannot be implemented at committee level.

The Chairperson noted and explained that it meant that the recommendation must go directly to the Presidency. It is for the President to implement by the signing of a proclamation.

Ms Kohler-Barnard disagreed pointing out that a proclamation by the President is a separate process which the Committee could not deal with now. What is at hand is that NICOC has to dealt with by the Committee. Her point is that NICOC should be able to appoint its staff independently without the approval of the Minister.

Adv Naidoo clarified that when functions were transferred from one minister to another, it has to be done through a proclamation. She agreed with the Committee’s approach that it should deal with NICOC in the same way that it had dealt with IGI.

The Chairperson suggested that Mr Mjenxane research what the staff appointment practice is in other public entities as well as the ring-fencing of budget.

Mr Xaba reminded Mr Mjenxane that different public entities may require different levels of autonomy.

Proposed amendment 25
Ms Kohler-Barnard noted that the Committee had agreed that grading must be removed. She did not like the term 'approval' and suggested 'concurrence' to ensure NICOC’s autonomy. She did not understand why the Minister needed to sign for NICOC anyway.

Mr Mjenxane referred to s4(3) of GILAB which outlined the Minister’s powers. Some of the clause need to be reworked to satisfy the Committee’s request to ensure NICOC’s autonomy.

The Committee agreed to replace the term 'approval' and that 'grading' be removed.

Proposed amendment 26
Mr Mjenxane referred to s4(4) which states:
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, 1999 (Act No. 1 of 1999)

H felt that the clause is sufficient in ensuring NICOC’s autonomy.

Mr Xaba agreed – it was not a separate vote but was part of the intelligence services vote.

Mr Mjenxane again noted the legislative process and that the SSA cannot propose further amendments to the Bill. The fund that goes to Services through National Treasury must be the fund for NICOC through ring-fencing.

The Committee agreed to the proposed amendment.

Proposed amendment 27
The Chairperson noted the SSA response and said that a Bill cannot be aligned to another Bill but only to an Act.

Adv Naidoo agreed and said that even though the Cybersecurity Amendment Bill is very likely to be passed, the definition of cybersecurity should reference an Act and not a Bill. She suggested two proposals, either leave out the definition and take its ordinary meaning or she could look for a better definition in current legislation.

Ms Kohler-Barnard said that she had checked with her colleague, Ms Breytenbach, of the Justice Portfolio Committee, who said that the Committee had dealt with the cybersecurity section and it was split from the Cybercrime Bill. The SSA response is incorrect.

Mr Mjenxane replied that he would look at how it could best be aligned. Cybersecurity is a function that has been exercised by the SSA. He referred to s2(b)(v) of GILAB and pointed out that the term has already appeared in the Bill.

Proposed amendment 28
The amendment was supported.

Proposed amendment 29
Ms Kohler-Barnard said that 'test' and 'assessment' are two different concepts and the latter is less aggressive. She preferred the latter and it suits the context.

The amendment was supported.

Proposed amendment 30
The amendment was supported.

Proposed amendment 31
The amendment was supported.

Proposed amendment 32
The amendment was supported.

Proposed amendment 33
The amendment was supported.

Proposed amendment 34
Ms Kohler-Barnard enquired if it suggested that vetting be removed.

The Chairperson asked if the Committee should replace vetting with security competency assessment.

A SSA official replied that there is the definition of vetting investigation in the original Act. The intention here is to define security competency assessment which needs to include vetting investigation.

Ms Kohler-Barnard asked if security competency assessment is defined and if that is different from vetting investigation.

The Chairperson clarified that vetting was part of the assessment.

The SSA official clarified that this clause is the definition of security competency assessment and the Bill further defines vetting investigation as well. He clarified that the shift from test to assessment did not come from the SSA but it had no objection to that change.

The amendment was supported.

Proposed amendment 35
The SSA official clarified that the SSA proposed that the definition of domestic and foreign intelligence should revert to the definition as stated in the 1994 Act.

Mr Stubbe supported reverting to the definition in the principal Act.

Proposed amendment 36
The amendment was supported.

Proposed amendment 37
The Committee awaited the parliamentary legal team input on a better alternative wording to replace 'opportunities'.

Proposed amendment 38
The Committee awaited the parliamentary legal team research into the context in which the words 'impede and neutralise' were used in the Bill.

Proposed amendment 39 and 40
Mr Hadebe noted that the SSA recommendation and the amendment were not the same.

Ms Kohler-Barnard cautioned that the clause cannot be made broader than the one in the original Act. It is the clause where churches expressed their concern.

Mr Mjenxane referred to vetting investigation in section 2A of the Act. Parliamentary Legal Services supported that because those subject to vetting would include only those in 2A.

Mr Hadebe raised his objection and said 39 and 40 should be read together. The Agency proposes that the definition of security vetting be broadened to include 'or to identify and detect threats to National Security'. It hence broadened the scope.

Adv Naidoo referred to clause 3 of GILAB amending section 2A of the National Strategic Intelligence Act. It included 'if a person or institution of national security interest in terms of Section 4(2)(a)(i) of the Act' which is extending what is in the current Act. The implication is that private individuals who are not employed by the state would be affected as well.

Ms Kohler-Barnard agreed with Adv Naidoo and commented that it would affect churches, NGOs and so on. She insisted that the clause be removed.

The Chairperson indicated that the Committee agreed that 39 should be retained as is and said it should deliberate on 40.

The Committee Content Advisor highlighted that Section 2A of the principal Act referred to a person and not an institution.

The Chairperson was confused because even companies and organisations are being vetted.

Mr Mjenxane referred to clause 2(xi) in the Amendment Bill. Only those who are offering services to the state or are applying to work for the state are subject to vetting in the principal Act. In law, persons can carry legal persona to refer to an institution as well. Section 2(b)(xi) refers to only those in s2A of the principal Act.

He recognised that the SSA response broadened the scope contrary to the public submissions. Also, since it is a new addition, the Committee has already taken a position on new additions and thus would adhere to the Bill that has been consulted on with the public.

Mr Hadebe maintained his view and said that his objection must be recorded.

Mr Stubbe suggested that it should be more specific. It should not be any institutions but rather institutions that are rendering services to the state.

Ms Kohler-Barnard indicated that the Committee is tightening it up because what we had previously was an institution that targeted people in virtually every arena including journalists and politicians as a means to protect a particular President. It was abused which is why the Committee is tightening it up now. She could not allow a clause that would open up such a gap. She disagreed with Mr Hadebe that the SSA would never do that because it has already happened not so long ago.

The Chairperson sought legal advice if it would help if the Committee put in an exclusion such as 'excluding a lawful act.'

Mr Mjenxane pointed out a deeper problem with clause 3(a) of the Amendment Bill amending section 2A of the National Strategic Intelligence Act. He found (iv) 'if a person or institution of national security interest in terms of Section 4(2)(a)(i) of the Act' problematic because s4(2) of the principal Act talks about the functions of NICOC. He agreed that the amendment makes compulsory vetting beyond the normal scope of people which is (i), (ii) and (iii).

An SSA official said that the SSA had explained the reasons why there was the shift from 'may' to 'must' in "National Intelligence Structures must conduct a vetting investigation" in s2A(1)

The Chairperson interjected and said that the contention is with (iv).

The Chairperson referred to the definition of counterintelligence in the Act. Vetting investigation is an integral part of that. He did not see (iv) as a new addition to the Bill because those are traits. If one has the trait of 'threat to national security', that person will not be given a security clearance. The Department has submitted to the Committee about the evolving traits of those that pose a risk to national security.

Mr Mjenxane agreed with the Chairperson that exclusion could be one of the solutions it could use but a consequential amendment would have to be added if the Committee chooses to go that way.

However, Mr Mjenxane referred to 1(p) of the Amendment Bill:
" 'person or institution of national security interest' means any person or institution, identified by the Agency in the form and manner prescribed, that conducts himself/herself or itself or engages in activities that are inconsistent with the principles set out in section 198 of the Constitution including any person or institution that engages in activities that are defined as a threat to national security in terms of this Act;"

The definition was not helpful and would give the Department discretion to make regulations in future. If the SSA believed that it was a necessary requirement to do so, it has to have objective criteria so that it would not be open ended. He suggested that the legal team would have to craft it differently which has the exclusion and will not appear to be compulsory vetting of each institution by the Agency.

Mr Xaba suggested that the Committee should allow the legal team to look for a solution that meets the Committee’s requests. He agreed that the Committee would not want to see persons are not protected but institutions are protected. There has to be consistency. When the Committee looks at exclusion, it should equally consider the protection of the state.

Mr Stubbe insisted that the vetting process cannot be a blanket approach.

Ms Kohler-Barnard was concerned that exclusion may not be sufficient and the section in the original Act should be retained.

Adv Naidoo noted the discussion and agreed to redraft. She emphasised that the issue highlighted during public consultation must be noted – that the vetting of categories of persons must be cautious. When it comes to the private sector, there is other legislation that has to be considered such as the Protection of the Personal Information Act (POPIA) so as not to infringe on the rights of private individuals.

[Short break]

Proposed amendment 41
The Chairperson asked why journalists and lawyers were the only two occupations that were constantly mentioned, what about doctors as there is doctor-patient confidentiality? He did not see doctors being mentioned anywhere in the Bill.

He found that there was a blurry boundary between the Regulation of Interception of Communications and Provision of Communication-related Information Act (RICA) and what is in this clause on bulk interception. The concern was what if communication of a South African is picked up by bulk interception, RICA would then immediately become effective. The way it is explained is that it is mixed with RICA and bulk interception is not explained as it should be. He recalled that the Committee had agreed on building safeguard measures. RICA deals with communications whereas bulk interception does not deal with communications only. The safeguard, in his view, should be placed specifically on communications.

Mr Hadebe said that there is no way that the Committee could stop the SSA from exercising bulk interception. A judge had to suspend bulk interception. He endorsed safeguard measures and suggested to look at best practices and benchmark those countries. He cautioned against confusing bulk interception with targeted interception.

Ms Kohler-Barnard asked if the definition of 'bulk interception' explicitly states that it covers outside of South Africa. The public hearings revealed that occasionally a local member would be included in bulk interception. There needs to be something that accommodates that situation and permission must be approved by the judge to clearly state why it was intercepted, what for, and was it an error.

The Chairperson clarified that the Committee was not trying to deter the intelligence service from doing its work, but rather to facilitate and make their work easier.

Mr Hadebe read from a document in answer to Ms Kohler-Barnard:
The Bill proposes an enabling legislative instrument that permits bulk interception that should happen only and exclusively outside the territory of South Africa, duly attended by safeguards that should be premised in the Constitution of South Africa.

He felt that it was explicitly clear that bulk interception was only outside South Africa.

Mr Stubbe wanted to see the initial request to the judge and also there has to be a time period. It must be reapplied for after that time period ends.

The Chairperson was unsure how bulk interception could be qualified to the judge.

Mr Stubbe had no issue with bulk interception, he just wanted the clause to include that a judge must make note of that in the initial request and it has to be reapplied for after that time period.

The Chairperson was unconvinced. If the judge does not have the right to determine in what country that bulk interception can take place, then it does not make a difference if that request should be sent to the judge or not; especially if the judge does not have the right to deny bulk interception

Mr Stubbe clarified that the judge is responsible only for registering bulk interception.

The Chairperson suggested checking the practices of other countries – if judges in those countries were involved in authorising bulk interception.

Mr Stubbe said that bulk interception had to be regulated somewhere. He questioned if a private individual or entity could set up bulk interception because they believed there might be hijacking outside of South Africa.

Mr Hadebe agreed with the Chairperson to do a comparative study on what the practice is in other countries. He was not convinced that any country would include a judge in bulk interception outside the jurisdiction of the country. The RICA process would kick in if any South African communication is intercepted.

The Chairperson agreed with Mr Hadebe and commented that intelligence operatives do not arrest people. They would alert law enforcement such as the police to make arrests.

Mr Xaba noted that there is no objection to bulk interception taking place. The fear is the insufficient safeguards to prevent the abuse of power. He suggested instead of the legal team doing a comparative study of other jurisdictions, it should rather place more focus on safeguards and report back to the Committee on solutions to strengthen the safeguards.

Mr Mjenxane noted the points raised by Members. First, it is the SSA itself in its own Bill that suggested the judge. Second, when a public power is given to SSA, the Committee needs to give guidance on how to exercise that discretion as shown by Dawood v Minister Home Affairs. There needs to be procedural safeguards on the application of that public power. He was of the view that building a prior authorisation to bulk interception could be a solution to solve the problem before SSA does bulk interception. It follows set guidelines. Judges are there to consider the application to protect constitutionally enshrined rights.

Since the IGI only receives reports after bulk interception has taken place, by that time any transgression would have happened. Therefore, IGI oversight is insufficient to protect those constitutional rights. Hence, the mechanism should be in place before the exercise of power.

The Chairperson said he would not go through Proposed amendments 42 to 50 since all those had been agreed to. He outlined those insertions which the Committee agreed on. First, it was the establishment of the Evaluation Committee which had never been established. Second, the JSCI had been "talking about having a meeting with the President" for the past five years. Third, there is a disjuncture of the JSCI annual report and the reporting services. The Committee wanted to make it more practical because there was no way that the Committee would be reported to for the whole year.

Mr Mjenxane read Section 3A of the Secret Services Account Amendment Act. In the Intelligence Services Oversight Act, 'Evaluation Committee' means the Secret Services Evaluation Committee established by section 2 of the Secret Services Act, 1978.

The Chairperson remarked that it was surprising that the Evaluation Committee was never established.

The Committee agreed that it should be inserted in the Bill with a timeframe for its establishment.

Ms Kohler-Barnard wondered if the Evaluation Committee had not been created given the role it would have played in the prevention of State Capture.

The Committee agreed that a 12-month period should be the appropriate timeframe.

The Committee agreed that the JSCI should meet with the President twice a year.

The Content Advisor commented on the consistency between the two reports. The JSCI must report to Parliament after five months of its establishment and thereafter annually. As the financial year ends on 31 March, the IGI issues the certificate after the annual reporting period. The JSCI receives the IGI certificate and the AGSA audit report, all of which form part of JSCI annual report ,which should have been tabled in May. In the previous year, it was tabled a month after May. The JSCI is not able to table its annual report within the timeframe.

The Chairperson agreed it does not make sense for the JSCI to table reports of the previous two years every year. He would leave the synchronising to the legal team.

Ms Kohler-Barnard reminded the Chairperson that deputies are needed for the OIGI and the JSCI which had been raised consistently over the last couple of years.

The Chairperson agreed that the deputy position was important for OIGI and asked if that position was in the Constitution.

Mr Hadebe said that there is no provision for deputy Public Protector but in reality there is one. So the Committee would not be doing anything unconstitutional if it establishes the deputy's office.

Mr Mjenxane confirmed that s2(10)(b) of the Constitution does not provide a deputy for the IGI, but he agreed with Mr Hadebe that a deputy position could be created in legislation. An amendment would have to be inserted in the Oversight Act to create the deputy position.

The Chairperson pointed out that the JSCI does not even allow an Acting Chairperson. He asked the legal team to explore a possible amendment to allow an Acting Chairperson.

Mr Hadebe asked if the Committee would meet on 12 and 13 March. If not, Members should be given time to look for alternative solutions to some of the issues that were mentioned.

The Committee agreed that it continue on 13 March to deliberate on the Committee proposed amendments (A-List).

Mr Hadebe reminded the Chairperson that there is a provision that allows for an Acting Chairperson, but the condition is that the decisions have to be ratified by the Chairperson. Since all those present at the meeting are fully vetted, he suggested refining that provision to allow work to continue without the Chairperson ratifying Committee decisions.

The Content Advisor added that there is a deputy Chairperson position on the JSCI according to the current Joint Rules. The reason it has not been executed is because the position is not within the primary legislation which is the Intelligence Services Oversight Act.

The Chairperson adjourned the meeting.