GILAB: adoption

Meeting report

Clause by clause consideration of the B-Bill
Mr NathiMjenxane, Parliamentary Legal Advisor, said the Committee would consider the B Bill which incorporated the Committee proposed amendments agreed to. He took the Committee through each clause of the B Bill (see document).

Clause 1
Mr Stubbe (DA) pointed out that “months” needed to be added after 12.

Ms D Dlakude (ANC) said that the proposed clause must be removed as the National Assembly had not accepted it but referred the proposal back to the Committee for further consultation.

Ms D Kohler-Barnard (DA) thought that the Evaluation Committee already existed in the legislation. The Bill was simply repeating what was already in the legislation.

Mr Mjenxane explained that the only addition the Committee added was the time period of 12 months.

Ms Dlakude repeated her view. She pleaded with her colleagues to allow for that to happen. The Committee did not want to send a Bill that would be rejected by the National Assembly for minor issues. This matter can be dealt with by the Seventh Parliament.

The Committee agreed to the removal of the clause and its proposed amendment.

Clause 2
The clause was adopted.

Clause 3
Ms Kohler Barnard (DA) sought clarity if the national security briefings were periodic or annual in clause 3(b)(ix).

Mr Mjenxane confirmed that it was periodic.

The clause was adopted.

Clause 4
The clause was adopted.

Clause 5
Ms Kohler Barnard asked if the Committee had agreed to adding NICOC to clause 5(b).

Mr Mjenxane explained that the only technical amendment made was the consequential amendments of Agency and Service, he did not recall any amendment made to NICOC in that clause.

The clause was adopted.

Clause 6
Mr Mjenxane apologised on behalf of the Legal Services as “grading of services” still remained in the clause.

The corrected clause was adopted .

Clause 7
The clause was adopted.

Clause 8
The clause was adopted.

Clause 9
Mr Mjenxane noted this clause was according to the Committee request to create a deputy chairperson for the JSCI and like the office of a Deputy IGI in Clause 12.

Ms Dlakude reminded the Chair that the proposal for a JSCI Deputy Chairperson was among those that had been referred back to the Committee by the National Assembly for further consultation.

The clause was adopted without the insertion of "and Deputy Chairperson" for the JSCI.

Clause 10
Mr Mjenxane noted this clause was according to the Committee request for the JSCI to meet with the President twice a year. The consultation with Cabinet is already in the existing legislation.

Ms Dlakude said that the Committee had to remove “to meet with the President at least twice a year” because this was referred back by the National Assembly to the Committee for further consultation. She sought clarity on which part of clause 10 had to be removed.

Mr Mjenxane clarified that this is an amendment to a section that did not form part of the Bill as introduced. The Committee had sought permission from the National Assembly to do this.

The Chairperson asked if the President was included by the phrase “any member of Cabinet”.

Mr Mjenxane agreed since the President is the head of the Cabinet and thus a member of Cabinet.

Ms Dlakude moved to adopt the clause with the exclusion of “to meet with the President at least twice a year”.

Mr T Loate (COPE) asked what was meant by any member of Cabinet, does it refer to Cabinet as a collective or an individual member of the Cabinet?

Mr Mjenxane replied that it referred to individual Cabinet members. In terms of s92(2) of the Constitution, Cabinet members, individually and collectively are accountable to Parliament for exercise of power and functions. The reason it says any member of the Cabinet is because it tries to cover those Cabinet members who would not ordinarily be appearing before the JSCI.

The clause was adopted without the phrase “to meet with the President at least twice a year”.

Clause 11
Ms Dlakude pointed out that this clause was also among those referred back by the National Assembly to the Committee for further consultation.

The Chairperson said that it would not be workable without the proposed amendment given the JSCI’s mandate to produce annual reports.

Ms Dlakude asked the Chair if the Committee should then defy the National Assembly recommendations.

The Chairperson replied that the proposed insertion is 'eight months'. His understanding is that two months would simply be too difficult for the JSCI to produce a report because the Department budget only comes after that. This proposed amendment is just to ensure better alignment. Currently, there is a two-year delay on the JSCI reporting.

Ms Dlakude said that while she understood the Chairperson’s input, she suggested removing the 'eight months'. Then after consultation which should not long in the Seventh Parliament, then those insertions can be included in the Bill. She foresaw problems if the Committee defied the decision of the National Assembly.

Ms Kohler Barnard found it odd that the Committee report to the National Assembly had been sent back to the Committee and she was aware of only three issues requiring its permission. Now it appears that the National Assembly is pushing back on every decision that the Committee made. Who is to determine which of our decisions is overturned and which are not?

Ms Dlakude replied that there were four items which were referred back to the Committee by the National Assembly. Those four items were contained in the Committee interim report. She could foresee a problem without proper consulting. She maintained her view that 'two months' should be left in the Bill. The 'eight months' could be included in the Bill after proper consultation.

She proposed the adoption of the clause with the exclusion of 'eight months'.

The clause was adopted.

Clause 12
Mr Mjenxane noted this clause was according to the Committee request to create the office of the Deputy IGI to act on the IGI’s behalf if the IGI has not yet been appointed. The National Assembly referred the proposed amendment back to the Committee for further consultation.

Ms Kohler Barnard said the Bill states that Inspector-General is appointed for a non-renewable renewable term of five years. The Committee’s discussion was that if there was not a second term, it should be changed to a seven-year term as per the practice of other entities. She did not see that input reflected in the Bill.

Ms Dlakude explained that since there was no consultation about the office of the Deputy IGI, it was referred back to the Committee.

Ms Dlakude disagreed with Ms Kohler Barnard’s suggestion to extend the term to seven years since the OIGI is not a Chapter Nine institution.

Mr Stubbe wanted to know with whom the Committee would still have to consult. There was a reason the Committee put in the Deputy IGI office because there was a certificate backlog before the IGI is appointed. Must the Committee consult with the public again or whom?

Ms Dlakude pointed out that the Committee does have the power to legislate, but creating an office would involve issues such as budget. Hence, it is important to have consultation before making a decision. She maintained her view that the Committee could recommend to the National Assembly for any appointment, and if the National Assembly agrees, it would be signed by the President.

Mr Stubbe repeated his question.

Ms Kohler Barnard pointed out that in the current Act, the IGI may stand for a second term. She thought it would be better to retain that. Five years is simply too short.

Mr Stubbe disagreed as leaving it as it is in the current Act is simply a regression.

Mr Mjenxane explained that the term of the OIGI is not regulated in the Intelligence Services Oversight Act. The IGI’s term is included in the contract when the IGI is appointed. That is why those insertions are underlined in the Bill because they are not in the Act. That is the proposed amendment.

Ms Kohler Barnard believed that the insertion should be removed as it would eliminate any chance of the IG being re-appointed.

The clause was adopted without clause 12(1)(b) stipulating five years and clause 12(4) on the office of the Deputy IGI.

Clause 13
The clause was adopted.

Clause 14
The clause was adopted.

Clause 15
The clause was adopted.

Clause 16
The clause was adopted.

Clause 17
Ms Kohler Barnard asked if it is legal to pass legislation that applies retrospectively. She found it a peculiar application to apply the Act to former members.

Mr Mjenxane replied that generally retrospective application of law is not allowed unless there is a specific reason which must be explicitly stated in the law why it should be so. However, there are instances such as the duty of care in the National Environmental Management Act (NEMA) has retrospective application to ban those who transgressed in the past. The proposed provision does not do that. The former members bound by this law would only be those who would become former members after the passing of this legislation.

The clause was adopted.

Clause 18
The clause was adopted.

Clause 19
The clause was adopted.

Clause 20
The clause was adopted.

Clause 21
Ms Kohler Barnard pointed out that the “may” in clause 21(b) inserting section 5(1)(d) of the Intelligence Services Act hould be replaced by “must”.

She pointed out that the plural form should be used for person in (2)(a)(ii).

Similarly, the Chairperson pointed out the grammatical error in 21(h).

Mr Mjenxane asked the Chairperson if the Committee wanted to make the function of creating posts and structures for the Academy an obligation of the Minister instead of at the Minister’s discretion as the Bill currently stated.

The Chairperson confirmed that it should be an obligation.

Mr Mjenxane took note of the input.

The clause was adopted.

Clause 22
The clause was adopted.

Clause 23
The clause was adopted.

Clause 24
Ms Kohler Barnard pointed out that the 'may' must be changed to 'must' in clause 24(2)(c) as it is the obligation of the Director-General.

Mr Mjenxane clarified that the use of “may” in this provision guarantees power. "In a prescribed manner" means future directives which can be made. The DG may exercise the power if certain conditions become necessary.

The clause was adopted.

Clause 25
The clause was adopted.

Clause 26
The clause was adopted.

Clause 27
The clause was adopted.

Short break

Clause 28
Ms Kohler Barnard asked that bearing in mind that former SSA Director General Arthur Fraser simply removed the security clearance of Inspector-General Dintwe, what reasons were given for the removal of the security clearance certificate. She did not want that to be arbitrary again.

Mr Mjenxane explained that vetting and the issuing of the security clearance certificate vetting is a matter provided for in the National Strategic Intelligence Act, the Intelligence Services Act and its regulations. It is not in the Amendment Bill as introduced. The Bill states that if a person is aggrieved, they must appeal to the competent authority who is the Minister within 60 days of the decision being made by the Director General. The decision to issue or not issue a certificate is an administrative action which is judicially reviewable. So if a person is dissatisfied with the decision of the Minister, they can take the matter to court to review that decision.

The clause was adopted.

Clause 29
The Chairperson sought clarity on "involuntarily" in the clause.

Ms Kohler Barnard asked what if a person is hit by a car and incapacitated for ten days, does this provision protect those members? She believed that such cases may fall under involuntary absence – but why should anyone be fired for having an accident?

Mr Mjenxane clarified that the section is in the original Act. This is a deemed abscondence clause who is absent from work. If one person is absent for fifteen days, that person is deemed to have discharged themselves unless that person could provide justification as to the whereabouts during that period. Then clause b provides the commencement of duty.

Mr Stubbeasked what if a person is in hospital for twenty days. Any other law will be suffice to make a decision and not just dismiss a person.

Ms Kohler Barnard asked why the days was changed from 10 days to 15 days, is that to align with other labour legislations?

Mr Mjenxanecould not find the explanation in the memo which means that the additions from the legislation are simply consequential changes of separation between the two. It is up to the Members to debate if they need to change that.

Mr Loate (COPE) said that it is 30 days of absence in the labour law and that there are certain steps that institutions must take in order to dismiss someone.

Mr Mjenxane said that the contexts are different as the Labour Relations Act applies to everyone. He highlighted the wording “notwithstanding anything to the contrary contained in any law but subject to the 60 approval of the Minister”.

The clause was adopted.

Clause 30
The clause was adopted.

Clause 31
The clause was adopted.

Clause 32
The clause was adopted.

Clause 33
The clause was adopted.

Clause 34
The clause was adopted.

Clause 35
The clause was adopted.

Clause 36
Ms Kohler Barnard asked if it is counter-intuitive that a body that represents workers is appointed by the Minister. In other words, the staff have zero input into the body that will represent them on their conditions of employment. She did not see why the Minister should be involved at all.

The Chairperson replied that this is a different council than a staff council which Ms Kohler Barnard referred to. That is why there is a limit to appointing no more than three persons.

The clause was adopted.

Clause 37
The clause was adopted.

Clause 38
The clause was adopted.

Clause 39
The clause was adopted.

Clause 40
The Chairperson sought clarity in clause 40(d) where it referred to "of the Agency".

Mr Mjenxane noted the error and guaranteed that a consequential amendment would be made.

The clause was adopted as corrected.

Clause 41
The clause was adopted.

Clause 42
The Chairperson asked if the clearance certificate in this clause means vetting.

Mr Mjenxane clarified that it is more like restraint of trade for members of the Services that they may not render similar services to anyone unless they have been granted permission by the DG.

The clause was adopted.

Clause 43
The clause was adopted.

Clause 44
The clause was adopted.

Clause 45
The clause was adopted.

Clause 46
The clause was adopted.

Clause 47
The clause was adopted.

Clause 48
The clause was adopted.

Clause 49
The clause was adopted.

Clause 50
The clause was adopted.

Clause 51
Ms Kohler Barnard sought clarity on the application of regulations. The Committee has agreed to give a twelve-month period for the Department to make new regulations. What if the new regulations are completed within ten months? She asked if that has been catered for in the Bill.

Mr Stubbe referred to clause 51(a) and pointed out the General Intelligence Laws Amendment Act should state 2023 not 2022.

The Chairperson asked why the assets and liabilities were not automatically transferred but were given a period of 24 months. It sounds as if it gives people time to conceal something within the 24 months.

Mr Stubbe agreed that 24 months could be too long and would support six months. This is going to be two Services and they share the items that have to be unbundled.

Mr Mjenxane explained that the clause is a transitional arrangement moving from this regime to the new regime which allowed for the period of handover. There is a whole process which includes developing an inventory of all the properties and where they needed to be transferred to and so on. He is not empowered to give an explanation on why it has to be 24 months. His advice is that in the current legislation, it is supposed to be done in six months.

The Chairperson noted that all Committee members were nodding in agreement to six months.

Mr Mjenxane said that should the function not be completed within six months, they could always apply for condonation.

Mr Stubbe agreed and said that it should be six months just in case they come up with other explanations such as you cannot have two services until the separation is done. By retaining six months, the Committee is forcing the process to be concluded.

The clause was adopted.

Clause 52
The clause was adopted.

Clause 53
The clause was adopted.

Clause 54
The clause was adopted.

The Amendment Bill was adopted.

Break

The Chairperson noted that this would be the Ad Hoc Committee’s last sitting.

Committee Report on General Intelligence Laws Amendment Bill
Mr Calvin Manganyi, Content Advisor, presented the Final Report of the Committee. In particular he drew attention to the following points;
• The Committee sought permission from the National Assembly on 15 March 2024 (see ATC No. 34 - 2024), in terms of the National Assembly Rule 286(4)(b) and 286(4)(c) to inquire into aspects of the legislation that were not covered in the Bill as introduced as well as to extend the subject of the Bill to include, the appointment of the Deputy Chairperson of the JSCI; a provision for the JSCI to meet with the President at least twice a year on intelligence-related matters; a provision to align the annual reporting of the JSCI with the Parliamentary reporting requirements; the appointment of the Deputy IGI; a provision that empowers the JSCI to designate the IGI to provide a specific oversight function; a provision to strengthen the compliance by the Executive with the recommendations of the IGI; and a provision to amend the Secret Services Act 56 of 1978 to provide for the GILAB.
• At its sitting on 19 March 2024, the National Assembly resolved to refer the interim report back to the Committee for further consideration.
• The Committee held the clause-by-clause deliberations on 19 March 2024, and resolved to omit the aspects of the legislation that were not covered in the Bill as introduced, of which permission sought on 15 March 2024, in terms of the National Assembly Rule 286(4)(b) and 286(4)(c) as mentioned, was not granted by the National Assembly.
• There was general agreement and support for the Bill by the Committee.

In response to the Chairperson asking if this would be the report sent to the National Assembly, Mr Manganyi confirmed that it was.

Read: ATC240320: Report of the Ad Hoc Committee on the General Intelligence Laws Amendment Bill on the General Intelligence Laws Amendment Bill [B40 – 2023], dated 19 March 2024

Committee minutes
The meeting minutes for 7, 8, 11 March and 19 March 2024 were adopted.

During the consideration of the 11 March minutes, Mr Loate confirmed if those Members who did not attend and did not give in a reason were not being captured in the minutes. The Chairperson confirmed that it is the case.

Concluding remarks
Since this was the last sitting of the Ad Hoc Committee, the Chairperson and Mr Stubbe both expressed their gratitude to the officials who had assisted the Committee throughout.

Mr Manganyi confirmed that the administrative team will work on the final editing of the Committee Report and the Bill before submitting them as a final edition. The Committee Report will be sent to the National Assembly and be ATC’d. That process should happen by 22 March 2024.

Ms Dlakude suggested that the Committee needed to have a proper consultation with all political parties before the Bill is tabled in the National Assembly on 26 March 2024.

The Chairperson adjourned the meeting.