GILAB: Committee proposed amendments

Meeting report

Committee proposed amendments (A-List)
Mr Nathi Mjenxane, Parliamentary Legal Advisor, noted that the legal team had been asked by the Committee to look into the following issues:
- Safeguards on bulk interception
- Deputy Inspector-General on Intelligence (IGI)
- Permission from the National Assembly via the Speaker to introduce amendments to sections that were not contained in Amendment Bill as introduced according to Rule 286(4)

The Committee was taken through the Committee proposed amendments (A List) while following the changes incorporated into the B version of the Bill (see documents).

Mr Mjenxane informed the Committee that the legal team is working on the binding effect of the IGI recommendations as well.

Adv Lisa Naidoo, Office of the State Law Advisor, informed the Committee that the grading of posts has been removed from the NICOC head functions as per the Committee request.

Mr Mjenxane added that the legal team would also make an amendment on the submission of the JSCI annual report to ensure it aligned time-wise with the SSA annual report.

Discussion
Ms D Kohler-Barnard (DA) was satisfied with the substitution of “impede and neutralise” in clause 2.

She noted that there had been a request that the regulations should come to the JSCI for concurrence and asked if that has been included in the Bill now

She sought clarity on the phrase “openness and transparency” in s2C(2)(e) in the proposed amendments. She requested context for the phrase – open to whom? To the IGI, the JSCI, the public?

She was satisfied that Mr Mjenxane and Adv Naidoo had verified the constitutionality of every single clause which means that the Bill would not be challenged once passed.

Ms Kohler-Barnard asked if the Minister at any stage had recourse if the IGI disagreed with the Minister. She did not see anything here to prevent that from happening.

She requested that the permission from the National Assembly be expedited. The Committee cannot wait for three weeks for an answer from the Speaker. It needed to be dealt with today.

Ms Kohler-Barnard pointed out that the Deputy IGI cannot be appointed at the time as the IGI. It must be six to twelve months after the appointment of the Inspector General. The whole point is the Deputy IG is appointed to cover the possibility of a gap once the IG’s term expires. She asked where this was stated in the Bill.

The Chairperson spoke about the judge requirement for bulk interception. The Committee did not wish judges to impede the Services from doing its work. He asked if a renewal timeframe should be inserted in the Act or it should be left to the regulations. Since bulk interception does not happen on a daily basis, 12 or 24 months is the recommended timeframe that could be granted to Services to perform bulk interceptions.

Mr T Loate (COPE) asked what does it mean that the Deputy IGI needs to have 'knowledge in intelligence'? Does it mean intelligence environment, security intelligence environment, etc? He felt that more clarity should be provided in the Bill.

He agreed with Ms Kohler-Barnard and noted that the Bill said that the appointment should be made as soon as possible. It is indefinite and this should be qualified to a tight period so that the Committee would not wait for a long period.

Ms Kohler-Barnard referred to 2D(3)(a) on surveillance arising from bulk interception and asked if it would be reasonable to insert “for bulk surveillance” at the same time because it is also for a specific time period.

Mr T Mmutle (ANC) was excused as he had to attend another committee meeting.

Given the uncertain signal which bulk interception picks up, the Chairperson believed that the SSA would only be able to communicate with the domestic law enforcement structure should it pick up an irregular domestic signal.

Ms Kohler-Barnard referred to s2B(2) and asked what impact there would be for bulk interception to take place.

Mr D Stubbe (DA) was satisfied with that provision if it was within the period of 12 months.

The Chairperson cautioned that it would be difficult to draft regulations for such purposes. It would be difficult to write an application for request.

Ms Kohler-Barnard believed that Mr Stubbe’s proposal is in line with the Constitutional Court judgment. If this requirement is removed, the Bill might be challenged in court. She thus supported the revised version drafted by Mr Mjenxane and Adv Naidoo. She cautioned the Committee that if the Bill is challenged in court, this may delay the Bill's implementation.

Mr B Hadebe (ANC) proposed that the requirement be removed for approval by a judge for bulk interception. He had explained many times the difference between bulk interception and surveillance. Bulk interception focuses only on territory outside of South Africa, there is necessity for bulk interception within legal framework. The safeguards are the Constitution and all the relevant laws in the country. Regulations would guide bulk interception and the JSCI has to review the regulations before they are implemented. If one looks at the situation in Ukraine, he urged that the SSA keep up to speed on bulk interception. He did not want to create a situation where the hands of the intelligence operatives are tied. Including a judge for bulk interception does not have any relevance. However he supported the approval of a judge for targeted surveillance.

Mr Stubbe noted Mr Hadebe’s view and understood that bulk interception did not target an organisation or a person. He asked how the SSA could motivate their cause for bulk interception since they would not know what it would achieve. His view was that the judges must look at the applicability of the South African and international law which might impede them from carrying out interception. He could not think of a solution for how the SSA could motivate for bulk interception. To an extent, he agreed with Mr Hadebe.

Mr G Hendricks (Al Jama-ah) described bulk interception as mischievous and an attempt to appease Israel and America. He disagreed that the South African government should do that, what will the AU and BRICS say? The country is pushing for a new humanitarian civilisation. The current civilisation is dead, there is no civilisation after what has happened in Gaza. The country needs to start building trust with members of the African Union and BRICS, etc. He was adamant that there must be checks and balances since security forces cannot be trusted. Half of them had worked under the old apartheid regime who were still working. He disagreed with Mr Hadebe and asked him not to come with proposal that is a threat to our democracy.

Ms Kohler-Barnard maintained the view that a judge is needed to oversee that the bounds of international treaties and agreements are not flouted. It has nothing to do with what other countries are doing.

Mr Hadebe wanted to understand if it is the responsibility of the judge to deal with electronic signals. He did not see how judge’s responsibilities would fit in.

The Chairperson explained to Mr Hadebe that the SSA was the one that put the judge in the Bill, surely SSA had its way of working it out. Did Mr Hadebe not agree with the proposal of those operatives themselves? He would support the inclusion of a judge in this process.

Mr Hadebe still maintained that the Committee should remove judge approval for bulk interception having listened to all points of view. Operational regulations should guide bulk interception and those regulations must be approved by JSCI.

The Chairperson sought advice and asked what should he do if one Member disagrees with other Members on that matter, as he wanted consensus.

Mr Mjenxane replied that in that case, the matter would have to be put to a vote in order to finally make a decision. He suggested the Chairperson provide a formal response to the objection first so Members could further deliberate on it before going into decision making.

Mr Mjenxane said that the legal team had worked very hard to put together the A List since the 11 March meeting. The legal team is very much aware of the difference between direct interception in terms of RICA and bulk interception in this Bill as it was very clearly explained in the Amabhungane judgment. He quoted paragraphs 124 and 129 of the judgment,

According to the respondents, bulk surveillance is—
“an internationally accepted method of strategically monitoring transnational signals, in order to screen them for certain cue words or key phrases. The national securityobjective is to ensure that the State is secured against transnational threats. It is . . .done through the tapping and recording of transnational signals, including, in some cases, undersea fibre optic cables.”

"The impact of bulk surveillance is highlighted by the third amicus. That amicus argues that: bulk surveillance entails the interception of virtually all internet traffic without a warrant or suspicion about the people whose communications are intercepted, and without statutory safeguards; no legal limits are placed on how data obtained, through bulk surveillance is captured, copied, stored, analysed, or distributed; this unregulated, untargeted surveillance of all information is an extreme violation of the right to privacy; this violation is contrary to comparative and international law; and section 39(2) of the Constitution calls for an interpretation of the NSIA that avoids an extensive violation of the right to privacy and, therefore, does not permit unregulated bulk surveillance. The effect of bulk surveillance, i.e. the interception of virtually all internet traffic without a warrant or suspicion about the people whose communications are intercepted, was not denied by the respondents."

Based on the extensive information which the Department itself had demonstrated, the legal team retained judges in the process. However, 2B(1) of the Bill clearly states the Department's obligation to have operational regulations on bulk interception.

The legal unit had consulted with its SSA counterparts and was told that bulk surveillance was based on thematic areas. If SSA intends to do bulk surveillance on human trafficking, it would do a broad application around that issue to the judge and motivate why that action should be granted. In addition, the Bill requires the SSA to indicate the period for which the application ought to be granted.

Mr Mjenxane explained that “openness and transparency” does not mean to members of the public. It is included to ensure that there is no unreasonably withholding of information that can vindicate people's rights if their rights are potentially infringed.

The Chairperson preferred having that removed and substituted with “reasonable”.

Mr Mjenxane replied that the NICOC Coordinator 'after consultation' with the Minister would appoint NICOC staff. It will not happen in consultation. This means that NICOC has the ultimate power regardless if the Minister agrees or not.

Mr Mjenxane informed the Committee that the letter to expedite permission from the Speaker had been drafted.

He explained that the phrase “knowledge in intelligence” is found in the Intelligence Services Oversight Act as a requirement for the IGI and it means knowledge of the intelligence environment.

Having heard Mr Mjenxane’s explanation, it was agreed that s2(3) should be retained as is.

Ms Kohler-Barnard was of the impression that the IG does not have to consult the Minister on the appointment of staff. She questioned why NICOC would have to consult the Minister since the purpose is to ensure its autonomy.

She noted that the timing of the appointment of the Deputy IG was not addressed in the Bill.

Mr Hendricks agreed with the importance of OIGI autonomy, especially its oversight role to prevent the apartheid abuses in our own intelligence services. He did not see an issue if the IGI consulted the Minister or the Cabinet, but the IGI must have sole power in making decisions. The autonomy of the OIGI is essential in building a just and democratic society and to prevent torture from happening.

Mr Hadebe did not support the omission of the definition of “person or institution of national security interest”.

Break

The Chairperson noted Mr Hadebe’s objection to having a judge approval for bulk interception in the Bill and sought legal advice.

Mr Mjenxane said that on inclusion of matters arising from public participation, the Constitutional Court had found Parliament to have failed to promote public participation in instances where clauses needed to be added subsequent to public participation process. The Committee has the authority to deliberate on matters as informed by public participation and decide what it seeks to do.

On Committee decisions, the Rule states that the majority of members in the meeting decide on the matter that is under discussion.

Ms Dlakude (ANC) proposed that Mr Hadebe’s input be parked and the Committee could return with a response in the afternoon session.

The Chairperson read an extract of the summary of the public’s input on the Bill:
Several members of the public raised concern on the state of cybersecurity in South Africa and expressed the need for it to be addressed in the Bill. This was closely linked to the concept of data security and the right to privacy. Members of the public expressed that the Bill in its current form does not provide an adequate check on bulk surveillance and thus failed to safeguard privacy and freedom of expression. Concerns were further raised regarding the Bill’s perceived compulsory vetting of civil society organisations. Some members of the public cautioned that the intelligence structure should remain accountable as they have sophisticated technology that can be used against people. As such several members expressed that the power of the IGI be strengthened.

The Chairperson was of the view that the public would want to see the judge included in the Bill.

Mr Hadebe agreed with Ms Dlakude to park the matter and return to the Committee with a response in the afternoon. Since he is a fully-fledged member of the Committee, he is entitled to make omissions or inclusions to the Amendment Bill.

Ms Kohler-Barnard believed that extensive inputs had been given on both concerns raised by Mr Hadebe – the inclusion of a judge and the omission of “person or institution of national security interest”. She did not understand why Mr Hadebe would still maintain his own view after those lengthy explanations.

Mr Hendricks agreed with the Chairperson that it would be nice if the Committee could have consensus. Should the vote go in Mr Hadebe’s favour, then the Bill would have to undergo a further public participation process and the Bill would be dealt with by the Seventh Parliament.

Ms Dlakude pleaded with the Chairperson that this matter could not be put to a vote. Let Members consult each other so that consensus can be reached.

The Chairperson agreed and said given the sensitive nature of the work this Committee dealt with, it is ideal for Members to have consensus.

The Chairperson requested Mr Mjenxane to go through the definition on bulk surveillance in the Amabhungane judgment.

Mr Mjenxane read paragraphs 124 and 129 of the judgment again. In addition, he quoted paragraphs 134 and 135 of the judgment.

Also, the section has shortcomings of another nature and these too impact negatively on the privacy right. This as well is an indication that the section ought not to be interpreted to authorise bulk surveillance. The section does not stipulate in clear, precise terms the manner, circumstances or duration of the collection, gathering, evaluation and analysis of domestic and foreign intelligence. It merely broadly enumerates the “functions” of the State Security Agency, with no details as to the nuts and bolts of those functions. It also fails to set out the ambit of how these various types of intelligence must be captured, copied, stored, or distributed. It is thus not clear at all that section 2 provides for a practice that so significantly intrudes on the right to privacy. In sum, I am not convinced that the broad terms of section 2 serve asauthorisation for the practice of bulk surveillance. The practice is thus unlawful andinvalid, as there is no law that authorises it.

Mr Mjenxane emphasised that the provision of the judge is to provide a safeguard which the Constitutional Court said was necessary.

Adv Naidoo agreed with Mr Mjenxane. When the Department had said to include 2B and the use of a judge, the way it is phrased means the nitty-gritty details are going to be prescribed in the regulations to reinforce those provisions. She heard Members’ concerns and agreed that these are valid points. However, due to the nature of state security and bulk surveillance, it is not an open platform and it has a very technical and intricate way of doing its work. So they are best placed to inform what should be placed in the legislation and the regulations. The legal team built on what they said. She agreed that the operational regulations on bulk interception could be subject to the Committee’s approval.

The Chairperson asked if there is another method that checks and balances could be put in if the judge was taken out.

Mr Mjenxane explained that judges are bound by the principle of impartiality and knowledge of constitutional law. They would be able to provide the independence to ensure that rights are not infringed. The requirement is also part of the RICA process. A retired judge who does not work for the state is able to provide the level of independence and impartiality on these intricate matters.

He explained that the IGI oversight role is different from that of a retired judge. The IGI’s work is ex post facto work to oversee that the Services have complied with the Act. This is a double lock to ensure that there is protection pre-authorisation and the IGI would ensure that post-authorisation. The way that the proposed amendment is drafted also affords the Services flexibility in drafting its own operational regulations on bulk interception.

Adv Naidoo explained that the Amabhungane judgment was very limited on bulk interception. The judgment dealt more with the interception of communications. That is when the Constitutional Court emphasised the need for independence aside from political interference. A designated judge needed to hear the matter when targeted surveillance was involved. That is where the designated judge comes in for the purpose of ensuring independence. Despite the limited time for research, she and Mr Mjenxane had explored the UK system on bulk interception. In the Investigative Powers Act, it combines targeted and bulk surveillance. Bulk surveillance involves more than a judge but also political heads including the Secretary of State, the head of Homeland Security. The Amabhungane judgment has shed light on the need for independence to ensure the impartiality of carrying out bulk interception.

Mr Hendricks was unsure if Mr Hadebe’s position was his personal position or that of the ANC. He needed clarity. According to the legal advisors’ inputs, it looks like Mr Hadebe’s position might be unconstitutional. It is important for the nation to know on the eve of elections that the ANC acted against our Constitution. The legal advisors had explained four times what the Constitutional Court said. He suggested that should the judge not be included in the Bill, then if a judge finds the bulk interception process against the law, then the Minister must fall.

The Chairperson read from the report on JSCI’s benchmarking. In the UK, there is the Investigatory Powers Commissioner’s Office which oversees the interception of communications to ensure legality through a system known as the double lock. Before interception can take place, it must be authorised internally within the relevant government agencies such as intelligence agencies MI5, MI6 and GCHQ. This authorisation is granted by a senior official within the agency such as the Secretary for the Home Department or the Home Secretary. Once internal authorisation is granted, the proposed interception is referred to a judicial commissioner appointed by the Prime Minister. These commissioners are senior judges and must independently review and approve the interception warrant. They scrutinise applications to ensure they meet legal requirements and are necessary and proportionate. The double lock system ensures that interception warrants are subjected to both executive and independent judicial oversight thereby safeguarding potential abuse of surveillance powers and ensuring compliance with human rights standards. Additionally, conducting ongoing oversight over the interception process including audits and inspections of agencies to ensure compliance. They have the authority to investigate complaints and concerns regarding interception activities to ensure accountability and transparency.

Ms Dlakude thanked the Chairperson for agreeing to convening in the evening. She said that every Member has the right to speak their mind. So it is not fair that every time a Member speaks their mind, the Member is accused of taking a party line. She believed that every Member was being impartial. Furthermore, the ANC has never said that it would ignore the Amabhungane judgment. She cautioned Members against cheap politicking.

The Chairperson agreed; he did not wish to entertain cheap politicking which was why he had not made any remark.

Mr Hadebe sought clarity if the double lock system is related to bulk interception.

Ms Kohler-Barnard reminded the Committee about the Minister being involved in NICOC staff appointments and if that practice was consistent with the IGI process.

Mr Mjenxane explained that since Members had requested granting NICOC autonomy, the Bill was changed so that the NICOC Coordinator has the sole power on staff appointments. However, for the sake of intergovernmental relations and the intelligence environment in which they operate, it would be better that the Minister should be consulted, but that consultation has no determining power on the NICOC Coordinator's power to make appointments.

[Prior to the meeting adjourning until the evening, the committee minutes of 7 December 2023; 20, 21 February and 6 March 2024. For the minutes of 6 March, the Committee sought clarity on the DoD submission. The Chairperson noted the DoD had been requested by the President to assist SAPS and asked if DoD wanted to know if they needed to perform intelligence work in that respect. Mr Calvin Manganyi, Committee Content Advisor, confirmed that was the DoD submission. In terms of current legislation, DoD can gather intelligence domestically on military threats which would assist them in their deployment whether by the Constitution or the Defence Act. DoD requested having the mandate to gather intelligence on non-military threats domestically which would allow it to deploy. During deliberations, what had transpired was that all intelligence services work together. Legally there is no need to confer a function which is performed by another one; hence, better coordination is needed. Since SAPS Crime Intelligence is conducting this work domestically, they can coordinate on that for that purpose.]

Evening session
The Chairperson said the short session was convened upon the request of Ms Dlakude.

Ms Dlakude reported to the Committee that she and other Members had applied their minds and agreed on the inclusion of the judge for the bulk interception process in the Bill. Hence, the Committee had reached consensus on that point.

Mr Mjenxane informed the Committee of the drafting changes made to s6(1) with the substitution of “eight months” for the submission of the JSCI annual report.

Mr Mjenxane informed the Committee of the drafting changes made to s7(11) which focused on the binding nature of the IG’s recommendations. The proposed amendment is as follows:

The Committee, after receiving the Certificate with the recommendations of the IGI, must notify the Minister to submit an implementation plan, within 90 days of receipt, on how he/she intends to implement the recommendations contained in the Certificate of the IGI.

The Minister must submit to Parliament a written explanation setting out the reasons why he/she has not implemented the recommendations.

The Chairperson noted that it has always been the practice of the JSCI to send an invitation to the Services after it receives the Certificate but now it is formalised.

Ms Kohler-Barnard pointed out that the Certificate was in the singular form, but she presumed that it related to the three certificates of the SSA, Crime Intelligence and Defence. It should be phrased differently if it refers to all three.

The Chairperson noted that the drafting change for the JSCI annual report to correspond in time with that of the Department. The insertion was to ensure consistency and avoid JSCI reporting two years back and not correspond with the Department annual report timelines.

The second drafting change was about the binding recommendations of the IGI.

Mr Mjenxane said that the Chairperson was correct about formalisation. Ms Kohler-Barnard was correct and the legal team would rectify the drafting to cover all three certificates.

Mr Manganyi pointed out that s7(11)(c) of the Oversight Act does explicitly state that the Certificate applies across the board and includes all three Services.

Mr Mjenxane said that the legal team would formalise the final A-List and ensure the B version includes these amendments.

The Committee would check if the B version captures all the Committee proposed amendments in tomorrow's meeting during the clause-by-clause consideration of the Bill and its adoption in totality.

Mr Mjenxane informed the Committee that in terms of legislative procedure, the Committee needed to have the tagging certificate. The Committee was still awaiting feedback on that.

In addition, he repeated that Rule 286(4) states that if the Committee introduces amendments to sections of the Act that were not contained in the Amendment Bill as originally introduced, the Committee must seek permission from the National Assembly. The Committee will need to send an interim report to the National Assembly outlining the additional sections requiring changes. The legal team is ensuring that all processes are adhered to.

Ms Dlakude asked the legal team if the interim report would be ready by tomorrow or next week and if that process would delay the Committee’s clause-by-clause consideration of the Bill.

The Chairperson replied that it would not.

The Chairperson adjourned the meeting.