Intelligence Services Amendment Bill (B37-2008) and the National Strategic Intelligence Amendment Bill (B30-2008): Deliberations

Meeting report

Chairperson’s Opening Remarks
The Chairperson noted that it would not be able to finalise the two Bills owing to the lack of a quorum, and that this was unfortunate as he had hoped that the Committee would be able to deal with the matter to finality. He requested that the meeting continued in any event as a delegation of the National Communication Centre (NCC) had arrived for the meeting and could thus answer some questions.

Adv P Swart (DA) said that it was unfortunate that there was no quorum as the two Bills dealt with very important issues. He felt that since no decisions could be made the meeting should be postponed, until a quorum could be obtained.

Mr L Landers (ANC) agreed that it was a pity that the finalisation of the two Bills would not take place, and that Parliament had to be informed about the possible extension of the submission date. However, he felt that the matters could be debated, albeit informally only, as no decisions could be made. He added that he had a discussion with Mr A Vadi (ANC), who had raised his opposition to a ‘Director-General” post being created for the NCC.

Mr Landers took the Committee staff to task over the omission of important information on Committee notices and said that in future they should indicate that a Bill was going to be finalised so that Members were made aware of the importance of the meeting.

The Chairperson noted that the meeting should continue in an informal fashion as there had been many concerns raised by Members on the constitutionality of the Bill, as well as the pivotal role of the Minister of Intelligence in the draft legislation.

Intelligence Services Amendment Bill (B37-2008) and the National Strategic Intelligence Amendment Bill (B30-2008): Informal deliberations
Mr Landers said that only one public submission, by the Ministerial Review Commission on Intelligence, had been received. He requested clarity from the Chairperson whether the Commission would be asked for to make an oral submission.

The Chairperson replied that the submission by the Commission had highlighted pertinent issues that had not been of a complex nature, hence they would not be asked for an oral submission.

Adv Swart asked if the NCC would change its name and whether it would become a separate department as it would not have its own DG.

Mr Alvin Khoza, Head, Legal Services: NCC,  replied that any name changes and other decisions that pertained to the NCC had to be policy decisions and thus he could not comment on that.

Adv Swart said that clause 1 that dealt with the definition of “foreign signals” was very vague as it did not specify that it was limited to that definition only and that the NCC could still technically “target” South Africans when a call had been made from country 1 to country

He added that clauses 2 (ii) and (d) also seemed to be very broad and vague, as they did not protect a South African’s right to privacy as guaranteed by the Constitution. The Bill now provided that the NCC could, upon authority by the Minister of Intelligence (the Minister), use telephone contact details of South Africans, without the consent of a judge.

In relation to clause 3(d) he stated that it was vague on whether that included lower-middle and senior level management.

Ms Bongiwe Lufundo, Principal State Law Advisor, Office of the Chief State Law Adviser, said that clause 2(d) had been inserted at the behest of Cabinet and that the Minister’s role in terms of the Bill had been guided by the objectives of the NCC.

The Chairperson said that he doubted whether clause 2(f) of the Bill, which dealt with the Director-General (DG) requesting information from any telecommunications service provider, in fact granted the DG the right to act unlawfully, and that provisions had been in place to obtain a court order for this purpose.

Mr Khoza noted that the rationale behind clause 2(f) was not that of intercepting communication signals unlawfully, as it related to assistance which these service providers were best placed to do in relation to new technology and so forth.

In relation to the role of the Minister, Mr Khoza said that it was not unique to this Bill that a Minister be accorded such powers, as the Minister would have a much better understanding of the intelligence priorities of the Republic at any given time.

Mr Burgess asked whether it was contemplated that the Minister would identify the target, before the Courts would be asked for a Court Order.

Mr Khoza replied that the Bill made no provisions for the judiciary as it already ensured that all the necessary controls would be in place.

Mr D Bloem (ANC) said that the Minister, as the political head of the department, should be kept out of operational issues as the DG and his management team had to decide on issues such as operations.

Adv Swart said that the South African Police Service (SAPS) could not obtain any information or evidence from any individual or group without the consent of a judge, whereas it now seemed that the NCC could bypass the judiciary, which was a very serious infringement to the Constitutional provisions.

Mr Vadi said that he failed to understand why permission was needed from the Minister for standard operational issues, as the NCC would deal with the surveillance of bulk foreign signals.

Mr Khoza replied that there was a vast difference between this Bill and the Regulation of Interception of Communications Act (RICA), as the NCC provided the relevant South African Law Enforcement Agencies (SALEA) with information that they would then use in terms of RICA. He said that the NCC would ensure that the process was not open to abuse. He also failed to understand why Ministerial authorisation was needed.

Mr Landers said that Mr Khoza contradicted what the Bill said about “particular authorisation”. and that the Bill in its entirety did not address the legal and constitutional issues at hand.

The Chairperson added that the only way that any SALEA could obtain information and evidence from any person or group was if it had prior permission from the judiciary to do so.

Ms Lufundo said that the issues that had been raised by the Committee had been both political and legal, and that these issues had been raised when the Office of the Chief State Law Adviser drafted the Bill. The premise for the Minister’s authorisation was based on “foreign signals interception”, which differed from the RICA, as the former dealt with bulk foreign signal, whereas RICA was applicable to the surveillance of individuals or groups within the borders of the Republic. In the event that information on South Africans had been obtained it would be given to the relevant SALEA for investigation, in terms of the RICA.

The Chairperson asked whether the NCC would approach the courts at any stage of any investigation.

Mr Khoza said that there would never be such a scenario, as the NCC did not conduct targeted surveillances or investigations.

Mr Vadi said that the responses that had been given by the NCC did not address the grey areas identified by the Committee as the NCC could still intercept signals of South Africans living abroad.

Mr Bloem reiterated an earlier comment on the Minister’s role by stating that he should be the last person that had to be consulted.

Mr Landers said that there had been no monitoring process in place that ensured that the NCC did in fact discard information obtained on South Africans during their interceptions, and that the Commission had highlighted the same issues in their submission. He said that, as the Bill stood now, the DG of Defence could go to the NCC with information to be processed, and that was in contravention of the RICA.

Adv Swart noted that it could be very easy for the NCC to enter these primary numbers and if that should happen then they would be in contravention of the Constitution.

The Chairperson said that he doubted whether the NCC would actually conduct illegal surveillance of South Africans, although they had the capacity to do so.

Ms Lufundo noted that the issues raised by the Committee related to policy directives and that the National Intelligence Agency (NIA) would be best suited to address them. She said that NCC would at no time deal with domestic signal interception, as it did not comply with RICA.

Mr Khoza added that at no time would the NCC get involved in illegal activities and that any information not relevant to the NCC would either be discarded or passed on to the relevant SALEA.

Mr Landers said that it was important for the drafters of the Bill to include another sub-section after (h), which should make reference to RICA.

The Chairperson asked the drafters to be cognisant of the issues raised by the Committee when drafting this specific sub-clause.

Adv Swart said that the new draft had to be presented at the next meeting of the Committee, as it was a consequential amendment.

Mr Khoza asked whether the NCC would be required to make a presentation at this meeting on the Bill as well as on the background of the Bill.

Adv Swart said that he did not see the need for a fully fledged presentation or motivation as the NCC had to ensure that the amendments were constitutional.

Mr Bloem felt that it was important for the NCC to be present when the Bill was finalised and deliberated by the Committee.

The Chairperson said that he did not expect the NCC to formulate the sub-clause at a whim and that it would be useful if the new insertion could be placed in brackets or underlined for emphasis.  He also said that the new draft had to be sent to the Committee as soon as possible and that the NCC senior management had to be present at the next meeting.

Ms Lufundo said that any changes that related to the definition of “foreign signals” would limit the scope of the NCC as it might be necessary for the NCC at some stage to intercept domestic signals, via RICA. She added that she had been advised by Mr Khoza not to leave this out.

Mr Landers added that Mr Khoza had no right to decide what should be inserted or removed in the Bill, as Parliament decided on that. He called on Mr Khoza not to interfere in the legislative process again as it could lead to serious problems.

He noted that Mr Khoza and Ms Lufundo had contradicted themselves once again and that it would appear if the NCC had been involved in domestic surveillance.

The Chairperson said that this sounded very problematic as it meant that the issues raised by the Committee would still not be addressed, and that it was important that the Minister be present at the next meeting as well.

Adv Swart proposed that the Minister and his management team should be present, as his management team could answer questions that pertained to the operational side of the Ministry.

Mr Bloem added that even if the Minister could not attend the meeting then his management team should be sent instead.

The Chairperson proposed that he should contact the Ministry to check on the Minister’s availability and views on the necessity whether the Minister should be present. If the issues that had been raised by the Committee were deemed to be of a legal nature then there was no need for him to attend, but if they were perceived to be political then he had to attend.

He added that if the Bill could be finalised by the coming week, then the Committee could focus on the Protection of Information Bill.

The meeting was adjourned