These Bills will be considered by an Ad Hoc Committee of Parliament on the Intelligence Services Bills.
(As introduced in the National Assembly as a section 75-Bill; explanatory summaryof BillpublishedinGovernmentGazetteNo.
To regulate the establishment, administration, organisationand control of the National Intelligence Agency, the South African Secret Service, and the South African National Academy of Intelligence; to establish and regulate the Intelligence Services Councilon Conditions of Service; and to repeal an Act; and to provide for matters connected therewith.
1 of the Public Service Act, 1994 (Proclamation No. 103 of 1994); "Director-General" means a person appointed as such in terms of section 3(3); "former member" means or any member of the Intelligence Services thekademy, whose services have terminatedfor any reason; "Intelligence Services" means the Agency or the Service as the case may be; "IntelligenceServicesCouncil"meanstheIntelligenceServicesCouncilon Conditions of Service established by section22; "Joint Standing Committee on Intelligence" means the committee established by section 2 of the Intelligence Services Control Act,1994 (Act No. 40 of 1994); "member" means a person appointed in terms of section 3,8,9 or 19; "Minister"meansthePresident, oranymember ofCabinetdesignatedbythe President to take politicalresponsibilityfortheIntelligenceServices, or the Academy; "National Intelligence Structures" means the National Intelligence Structures as defined in section 1 of the National Strategic Intelligence Act,1994 (Act No.
1994,by the head of each of the following organizational components which were integrated to consist of the Intelligence Services, with the names of: the persons who, on the date of the commencement of the said Act, were members of the Bureau as defined in section 1 of the Bureau for State Security Act, 1978 (Act NO.104 of 1978); the persons who, on the date of the commencement of the said Act, were members of the Department of IntelligenceandSecurity of the African National Congress; the persons who, on the date of the commencement of the said Act, were members of the Bophuthatswana Internal Intelligence Service by virtueof theirappointmentinterms of the Bophuthatswana InternalIntelligence Service Act,1982 (Act No. 25of 1982),or are appointed interms of section 15 of the National Security Council Act, 1981 (Act No.
No. 67 of 1987), of Transkei; the persons who, on the dateof the commencement of the said Act, were members of theVendaNationalIntelligenceServicebyvirtueoftheir appointment in terms of the Intelligence Service Act, 1988 (Act No.
1988),of Venda; the persons who immediately before the commencement of the Constitution of the Republic of South Africa, 1993 (Act No.
1 of the Private Security Industry Regulation Act,2001 (Act No.
1992 (Act No.
in to (a)to (m); "staff forum" means a consultation forum for members on of service and conditions human resources; "Service" means the South African Secret Service referred to in section 3; "strike" means a strike as defined in section 213 of the Labour Relations Act, 1995 (Act No. 66of 1995); "this Act" includes the regulations.
Continued existenceof Agency and Service the persons who became members in terms of the Intelligence Services Act, 1994 (Act No.
the persons appointed as members in terms of this Act, after its commencement.
establish divisions and prescribethe functions and post structures thereof.
(Proclamation No. 103 of 1994), whose management and administration is under the control of the Minister.
Academy-must provide training or conduct such examinations or tests as a qualification for the appointment, promotion or transferof persons in or to the intelligence Services or departments, as the case may be, as the Minister may prescribe; and may issue diplomas or to persons who have passed such examinations.
The Academy must have a Training Fund whose funding consists of-all moneys which immediately prior to the commencementof this Act were moneys defrayed for training under the Agency; money appropriated by Parliament from time to time for promoting training under this Act; any other money accruing to the Training Fund.
in terms of this Act or from any other source.
Money in the Training Fund must be utilised to promote training under this Act, but money or other property donated or bequeathed to the Training Fund must be utilised in accordance with the conditions of the donation or bequest in question.
The Chief Executive Officer may invest money in the Training Fund which is not required for immediate use in such a manner as the Minister may approve with the concurrence of the Minister of Finance.
The end of the financial year of the Training Fund is on the last day of March in each year.
The records and annual financial statements must be audited annually by the Auditor-General in accordance with the Special Services Account Act, 1969 (Act No. 81 of 1969).
The Academy may co-operate with any institution of higher learning, in the Republic or elsewhere to achieve its objectives.
Executive Officer, principal and accounting officerof the Academy.
responsible for the curriculum and research function of the Academy: Provided thatifthe post levelof the deputy head is at the leveldeputy Director-General, the Minister must of a make the appointment with the concurrence of the President.
The deputy head must perform his or her functions subject to this Act and any other laws governing the Intelligence Services.
TheMinistermay for purposes oftheAcademycreatethepoststructures necessary for the functioning of the Academy, but such structures may not exceed the structures contemplated in section4 in seniority.
A prescribed document signed by the Minister and certifying that any person has been appointed as a member isprima facie proof that such person has been so appointed.
Establishmentof Ministerial Advisory Committee on Training not more than8 other persons appointed by the Ministeron the basis of need and required expertise.
experience and knowledge, and must hold office for a renewable period of three years.
Higher Education to be the Chairperson of the Advisory Committee.
The Minister must by notice in the Gazette, and by such other means may be viable, invite nominations for the Chairperson of the Advisory Committee from the public.
A member of the AdvisoryCommitteewhoisnotinthe full time employment of the State mustbe paid the remuneration and allowances determined by the Minister with the concurrenceof the Minister of Finance.
TheAdvisoryCommitteemay, in consultation withtheMinister, establish such subcommittees as may be necessary for the performance of its functions.
TheDirector-GeneralconcernedortheChiefExecutiveOfficermust, subject to the directionsof the Minister and this Act, exercise command and control of the Intelligence Services or the Academy, as the case may be.
The Director-General concerned or the Chief Executive Officer may, subject to the directions of the Minister and the provisions of this Act, make such rules and issue such directions as he or she may deem expedient for the efficient command and control of the Intelligence Services or the Academy, as the case may be.
38 No. 23889 GOVERNMENT GAZETTE, 30 2002 case may be, are protected from unauthorised disclosure; no action is carried out that could give rise to any reasonable suspicion that the IntelligenceServices or theAcademy, as thecasemaybe, is concerned in furthering, protecting or of the population or undermining the interests of any section any political party or organisation; and thepowersoftheIntelligenceServices ortheAcademyarelimitedtowhatis necessary for the purposes of the discharge of its functions in terms of the National Strategic Intelligence Act, 1994 (ActNo. 39 of 1994) and the Secret Services Act, 1978 (ActNo. 56 of 1978).
Powers and duties of members lawful directions received froma person having the authority to give such directions.
Prohibition Act, 1992 (Act No.
to examine, copy, photographor transcribe any article, document or other material on such premises; and to remove any article, document or other material long as from the premises, for as is reasonably necessary, for the purposes of examining, copying, photographing or transcribingit, as the case may be.
A directionreferredto in subsection (2) mustbeissuedfora specific period not exceeding three months.
A direction referred to in paragraph (a) may be executed by a member of the Intelligence Services, who is authorized to doso by a senior member of such Inte!ligence Services holding a post of at least a directorate.
A member who executes a directionor assists in the execution thereof must, not later than to in paragraph(a), the date of expiry of the direction referred return an article, document or other material that was removed in terms of subsection (2)(b)(iv) to the premises in question unless the judge referred to of the said article, document or material will prejudice the security the Republic, in which casehe or she may direct that it be destroyed or stored elsewhere.
(5), extend the period of validity the direction for a further period not exceeding three months at a time, if the extension is necessary for a reason mentioned in subsection (2).
The Minister may, subject to this Act, do or cause to be done all things whicharenecessary for the efficientsuperintendence, controlandfunctioningofthe Intelligence Services and the Academy.
I (c) with the concurrence of the Minister of Finance, sell, let or otherwise disposeof any immovable property, with or without any building thereon, and anything referred to in paragraph (b), which is no longer requiredfor the said purposes.
If it is in the public interest to retain a member in his or her post beyond the age at which he or she is required to retire in terms of subsection(l),his or her services may, with his or her consent and with the approval of the Minister, be so retained from time to time, for further periods not exceedingfive years in total.
Security screening and dischargeof members iI 14.
the Minister, after evaluating the gathered information, is reasonablyof the opinion that such person may be appointed as a member without the possibility that such person might be a security risk or that heor she might act in any way prejudicial to security interests of the Republic.
If the Minister is reasonably of the opinion contemplated in subsection (I)@), the Minister must issue a document in which it is certified that such person has successfully undergone a security clearance and is regarded as being security competent: Provided that the Minister may withdraw such certificate if he or she obtains information which, after evaluation by him or her that the person should no longer or her, satisfies him be employed as a member.
discharge such personor member from the Intelligence Services or the Academy, as the case may be;or with the approval of the Minister responsible for the department concerned, transfer such personor member to that department subject to the conditions imposed by any law governing the transfer.
the Director-General concerned or the Chief Executive Officer, as the case may be, refuses to reinstate the member, the latter may appealto the Minister, stating the reasons why he or she should be reinstated.
Anymembermay be dischargedfromtheIntelligenceServicesorthe Academy as the case may be, bythe Director-General concernedor the Chief Executive Officer, as the case may be, if, after a hearing in the prescribed manner as to his or her state of health, such Director-Generalor the Chief Executive Officer, asthe case may be, is of the opinion that he or she is by reason of ill-health unfit to remain in the Intelligence Services or the Academy, as the case may be.
AnymemberdischargedfromtheIntelligenceServicesorthe Academy in terms of subsection(1) may in the prescribed manner appeal to the Minister, who may thereupon set aside or confirm his or her discharge.
AmembermaybedischargedfromtheIntelligenceServicesorthe Academy or demoted by the Director-General concerned or the Chief ExecutiveasOfficer, the case may be, if, after a hearing in the prescribed manner as to his or her fitness to remain in employmentor to retain his or her rank or grade, the Director-General or the ChiefExecutiveOfficer, asthecasemaybe, isof the opinion thatsuchmember is incapable of performing his or her duties efficiently.
A member who has been discharged from the Intelligence Services or the Academy or demoted in terms appeal of subsection (l),may in the prescribed manner to the Minister, who may thereupon set aside or confirm his or her discharge or demotion, as the case may be.
(6,) contravenes or fails to comply with any provision of this Act.
A membermaybedischargedfromtheIntelligenceServicesorthe Academy or demoted by the Director-General concerned or the Chief Executive Officer, as the case may be, if, after an enquiry in the prescribed manner as to his or her fitness to remain in employmentor to retain his or her rank or grade, the Director-General or Chief Executive Officer, as the case may be, is of the opinion that such member has committed an actof misconduct.
A member who has been discharged from the Intelligence Services or the Academy or demoted in terms of subsection (2),may inthe prescribed manner, appeal to the Minister, who may thereupon set aside or or confirm hisorher discharge demotion, as the case may be.
dischargeanymemberfromtheIntelligenceServicesor the Academy onsuch -conditions as the Minister may determine.
TheMinistermay, withtheconsentof a member anduponsuch conditions as he or she may determine, second a member, for the performance of a particular service or for a specified period, to the service of any other department, or the IntelligenceServicesortheAcademy, ortoanyotherauthority;board, entity, establishment, institution or body, but, while so seconded, the member remains subject to this Act and any other law which appliesto him or her.
The Minister may by contract engage any person for the performance of a particular service, or for any period and on such terms as heor she may deemfit.
Subjecttosubsection (3)the Minister may determine that a person engaged on contract be designated as a member for the durationof the contract.
The Minister may in writing and on such conditions as he orshemay deem fit delegate any power conferred upon himor her by this Act, excluding any power conferred upon him 4(l)(a),(b)and (c),5(1),(2)(a)and (4)(c), 6(2), 9(3), or her by sections (4)) (51, (8)and (9),W), (2),12(1), 13(3), 14(2), (3), 15(l)(b)and (c),16(2), 17(2), W3), 19(1), (4), 21(2), 22(1), (5),(6)and (8),23(3)(a)(i)and(ii), 28(2),30 and 38, to the Director-General, the Chief Executive Officer or or the any other member of the Academy, Intelligence Services, as the case may be.
No member of the Intelligence Services or the Academy may strike or induce or conspire with any other member to strike.
The Minister must in the prescribed manner make provision for internal rules to deal with complaints, grievances and consultation on conditions of service and human resources within the Academy or Intelligence Services, as the case may be.
A regulation made under this section with referenceto members may not be published in the Gazette but must be notified to members in such manner as the Minister may determine.
The members contemplated in subsection (1) must be fit and proper persons with a thorough knowledge of the functioning of the Intelligence Services.
The Chairperson may co-opta Director-General or the Chief Executive Officer, to participate in the functioning of the Intelligence Services Council: Provided that such Director-General or Chief Executive Officer shall not have voting powers.
The conditions of service of the membersof the Intelligence Services Council must be determined by the Minister in accordance with conditions of service applicable to members.
ThemembersoftheIntelligenceServicesCouncilmayberemoved from office by the Minister in accordance with the regulations and rules applicable to members.
TheMinistermustappointmembers or persons to give research, administrative, logistical and technical supportto the Intelligence Services Council.
no member shall perform or engage himself or herself to perform any remunerative work outside hisor her employment; and no member may claim as of right additional remuneration in respect of any official duty or work which heor she is required by a competent authorityto perform.
or her employment.
Director-General or Chief Executive Officer as the case be, may in writing require such member or such other personor such bank or financial institution not to dispose thereof, or, if it is money, to retain a corresponding sum may be, pending the of money, as the case outcome of any legal proceedings for the recovery of such remuneration, allowance or reward or the value thereof.
Anysalary, allowance, fee, bonusorhonorariumwhichmaybe payable in respect of the service of a member seconded to any other government or any other authorityor to any board, entity, establishment, institution or body, shall be paid to the Academy, or the Intelligence Services: Provided that in special circumstances the Minister may approve the payment to such member to the said salary, of an amount equal allowance, fee, bonus or honorarium, ora portion thereof.
being a member, discloses classified information or material without the permission Of the Director-General or the Chief Executive Officer as the case may be.
or subsection (l)(g),to a fineor to imprisonment for a period not exceeding10 years.
Subject to section 10(3)(a), aformermembermaynotdisclose in any granted permission for the disclosure of such informationor material.
Subsection (1) applies to any information or material received by the former member during, or subsequent to, the former member's employment or other service with the Intelligence Services or the Academy, as the case may be, that was marked as classified or that the former member knew or ought reasonably to have known was classified.
disclosure of classified information or material by former members must be processed.
A former member may not, for a period of three years after leaving the Intelligence Services or the Academy, render a security service unless he or she has obtained a from the Director-General as clearance certificate or the Chief Executive Officer the case may be.
The Minister may prescribe the manner in which any former member may apply for a clearance certificate referred to in subsection (1).
who co-operates or has co-operated with the Intelligence Servicesor the Academy, in respect of matters concerning the security of the Republic.
Director-General or Chief Executive Officerin terms of section 27(1) or 28(1).
the remuneration and allowances to be paid to such persons must be determined by the Minister with the concurrenceofthe Minister of Finance.
Any offence or misconduct contemplatedinsubsection (1) maybe tried by the appropriate court or board of enquiry at the place in the Republic where the accused or person concerned happens to be despite any law regarding jurisdiction.
The Minister may by notice inthe Gazetteand inanyotherappropriate manner prohibit or restrict access to any premises under the control of the Intelligence Services or the Academy.
The Minister may take or cause to be taken such measures as are necessary for the security of, or for the enforcement of a prohibitionof or a restriction on access to, such premises, and may so taken cause such inconnection with any measures notices to be published or to be made may such warning notices as in each particular case be necessary.
Theproduction of anofficialdocumentsignedbytheMinisterand indicating that he or she has established a canteen for the purposes of this section, is conclusive proof that it is a canteen falling under this section.
retired membersor for persons employed in any work inor in connection with any such mess, pub, institution or premises.
Any civil proceedingsagainsttheState or anyperson, in respect of anything done under this Act, must be instituted within three years after the plaintiff or applicant has become awareor could reasonably be expected to have become aware of the cause of action, and notice in writing of such proceedings and of the cause thereof must be given to the defendant not less than one month before they are instituted.
If thenoticecontemplated in subsection (1) must be given tothe Director-General concerned or theChiefExecutiveOfficer, as thecasemay be, it is deemed to be notificationto the defendant concerned.
Any process by which proceedings contemplated in subsection are instituted and in which the Ministeristhe defendantor respondent, may be servedon the Director-General concernedor the Chief Executive officer, as the case may be.
If amemberismissingandtheDirector-Generalconcerned or the Chief Executive Officer, as his or her absence arose from the case may be, is satisfied that the performance of his or her functions in terms of this Act, such member shall for all purposes be deemed to be or the Academy, as still employed by the Intelligence Services the case may be, until the day on which he or she again reports for duty or until the day on which a competent court issues an order whereby the death of such member is presumed.
must for all purposes be deemed to be payment thereof to the member concerned, and an amountso paid shall not be recoverable by the State from any person.
Notwithstandingsubsection (2),the Director-General or the Chief Executive Officer may in a prescribed manner direct that only a portion of the salary or wages and allowances of a member be paid or that no portion thereof be so paid.
Regulations contemplated in paragraphs(b)and (cl)must be made in consultation with the Minister responsible for the administration of the Medical Schemes Act, 1998 (Act No. 131 of 1998).
security screening investigation to a polygraph test as inorderto determine the prescribed, reliability of information provided by him or her.
any other informationwhich is relevant to determinethe security competency of that knowledge of such a memberor person; or member or person: Provided that where the gatheringof information contemplatedin paragraphs (c)and (d) requires interception and monitoring of the communications and conversationsof such a member or person, the Intelligence Services, must perform this function in accordance with the provisions of the Interception and Monitoring Prohibition Act, 1992 (Act No. 127 of 1992).
Regulationsmadeunder this Act mayprovidethatanypersonwho contravenes a provision thereof, or fails to comply therewith, is guilty of an offence and liable to afine or to imprisonment for a period not exceeding five years.
A regulation made in terms of this section with reference to members need not be published in the such manner as the Minister may determine.
The Minister may make the discoveries, inventions and improvements referred to in subsection (1) availableforuse in the publicinterestsubjecttosuch conditions and the payment of such fees or royalties as the Minister may determine.
If therights in any discovery, inventionorimprovementvest in the Intelligence Servicesor the Academy, in terms of subsection(l),the Minister may award to the person responsible for the discovery, invention or improvement such bonus as he or she deems fit, or make provision for financial participation by such person in the profits derived from the discovery, invention or improvement to such extentas the Minister may determine with the concurrence of the Minister of Finance.
The Minister may apply for a patent in the name of theIntelligence Services or the Academy, as the case my be, in respect of any discovery, invention or improvement referred to in subsection(l),and the Intelligence Services or the Academy, as the case may be, must for the purposes of the Patents Act,1978 (Act No.
All assets, liabilities, rights and duties including funds, resources and administrative records of the Agency with respect to training, must be transferred to the Academy within six months after the commencement of this Act, and shall vest and be deemed to have been acquired or incurredby the Academy.
A registrar of deeds shall, upontheproductiontohim or her of a certificate by the Minister that immovable property described in the certificate vests in the Academy in terms of subsection (2),make such entries and endorsements as he or she may deem necessary in or on any relevant register, titledeed or other document in his or her office, so asto give effect to subsection(2).
No duty, office fee or other charge is payablein respect of any entryor endorsement in termsof subsection (3).
Ifan enquiry into alleged improper conduct instituted in terms ofa law repealed by subsection (l),has not been concluded at the commencement of this Act, such proceedings must be continued and concluded in accordance with the law in termsof which the enquiry was instituted, as ifsuch law had not been repealed.
Services Act, 1994 (Act No.
Act No. 81 of 1969 Security Services Special Account Act, 1.
the Performance of the function and the duty of the National Intelligence Agency, and the South African Secret Service as referred to in the National Strategic Intelligence Act, 1994; and the organisationof, the exercisingof the powers and the performance of the duties and functions of any member of, the exercising of the powersof the President [or the responsible Executive Deputy President] or the Minister in relation tothe superintendence and control of, and the action by and functioning of, the[Agency and the Service] lntelliaence Services and the Academy as defined in section 1 of the Intelligence Services Act, 2002, and matters in connection therewith which the said President, [Executive Deputy President] or Minister, as the case may be, may from time to time approve as beingin the national interest, and shall be paid out subject to the directions of the said President, [Executive Deputy President] or Minister, as the case may be.
Moneys standing to the credit of the account which are not required for immediate use or as a reasonable working balance, may be invested insuch manneras may be determined by the President, [Executive Deputy President] or Minister responsible for the National Intelligence Agency,[or the] the South African Secret Service or the South African No.
Act No.66of 1995 Labour Relations Act, 1995 Extent of repeal or amendment concurrence of the Minister of Finance.
" 'security matter' includes any matter which is dealt with by the[Agency or the Service] lntelliaence Services or the Academy as defined in section 1 of the Intelligence Services Act,  2002, or which relatesto the functions of that [Agency or Service] lntelliaence Services or the Academy orto the relationship existing between any person and that [Agency or Service] lntelliaence Services or the Academy.".
"(3) Where persons employed in the [Agency or the Service] lntelliaence Services or the Academy are not excluded from the provisions of this Act, those provisions shall apply only in so far as they are not contraryto the laws governing their service, and those provisions shall not be construed as derogating from the powers or duties conferred or imposed upon the [Agencyor the Service] lntelliaence Services or the Academy.".
"(iii) in the [Agency or the Service] lntelliaence Services or the Academy; and".
Amendment of section4 by the substitution for subsection (3) of the following subsection: "This Act does not applyto members of the National Defence Force, the National Intelligence Agency,[or]the South African Secret Serviceor the South African National Academv of Intelliaence.".
the insertion after the definition of "rules" of the following definition: " Service' means the South African Secret Service as defined in the lntelliaence Services Act.2002;".
THE INTELLIGENCE SERVICES BILL, 2002 1.BACKGROUND In 2001, the Minister for Intelligence Services (hereinafter referred to as the Wnister), gave directions for the review of the intelligence dispensation with regardto the administration, control and supervision of the Intelligence Services.
Committee (PIBAC) chaired by the Deputy President, which looked at amcmgst other issues, building capacity within the Intelligence Services, resourcing and creating a conducive environment for optimal efficiency.
Department of Public Service and Administration, to conduct a comparative research on the adrmnistration and human resource management in the IntelligenceServices. Since the inception of the intelligence dispensation in 1995, there has been no consistency in the way best practicewas imported from the Public Service to the Intelligence Services. This was further exacerbated by the fact that the Intelligence Services are excluded from the application of labour law and thusdid not participate in the Public Service Collective Bargaining Council although they were expected to follow agreements that were reached through the said process. This anomaly had to be corrected and this inequity needed to be addressed by both Ministers. 2.