These Rills will be considered by an Ad Hoc Committee of Parliament on the Intelligence Services Bills.
To providefor the establishment of a company that will provide electronic communications security products and serviceb to organs of state; and to provide for matters connected therewith.
"Board" means the Board of Directors of Comsec contemplated in Section 8; 'Chief Executive Officer" means the Chief Executive Officer contemplatedin section 13; "communication" means communicationas defined in an Act of Parliament providing for the interception and monitoringof communications; "Companies Act" means the Companies Act,1973 (Act No. 61 of 1973); "Comsec" means Electronic Communications Security (Pty)Limited established by Section 3; "critical electronic communications" means electronicinformation or communications held by organsof state, which are necessary for the protectionof the national securityof the Republic or the protection of the economic and social well-being of its inhabitants; "Intelligence Services" means the lntelligelhce Services as contemplated in an Act of Parliament providing therefor; "Minister" means the Minister for Intelligen@e Services; "organs of state" means an organof state 9s defined in section 239 of the Constitution; "prescribe" means prescribeby regulations; "this Act" includes the regulations.
There is hereby established a juristic person to be known as Electronic Communications Security (Pty) Ltd.
The principal objective of Comsec is to ensure that critical electronic communications are protected and secure.
Notwithstanding the Companies Act or any other law, the State is the sole shareholderof Comsec.
NotwithstandingtheCompaniesAct, theMinister or a person designated by him or her must, on behalf of the State, signthe memorandum and articles of association and all other documents necessary for the incorporationof the company.
incorporate the company as a private company under the name "Electronic Communications Security(Pty)Ltd"; and issue to the company a certificate to commence business with effect from the date of the company's incorporation.
A provision of the Companies Act shatl not apply to Comsec where the Minister of Trade and Industry has issued a declaration undersection 6.
The request contemplated in subsection (I)must be fully motivated, and the Registrarof Companies must publish particulars about the request and motivation by notice in the Gazette.
not be prejudicial to the interests of the State, employeesof Comsec or claims of declare, with effect from the date stated in the notice, the whole orpart of a provision of the Companies Act not applicable to Comsec.
Functions provide, with the concurrence of the National Intelligence Agency defined in section 1 of the Intelligence Services Act, 1994 (Act No.
develop, design, procure, invent, install or maintain secure electronic communications systems or products and do research in this regard; provide secure electronic communications services, systems and products; provide cryptographic services; train and support users of the electronic communications systems, products and related services; and provide consultancy serviceson the security and protection of electronic communications services, systems and products.
Subject to applicable labour law, Comsec may with the approval of the Minister acting with the concurrence of the Minister responsible for an entity or establishment of the State which performs functions similar to those referred to in subsection (2),integrate suchan entity or establishment into Comsec.
Comsecmayco-operatewithanyorganisation in the Republic or elsewhere to achieve its objectives.
Comsec, the members of its Board and its employees must, in the performance of their functions in terms of this Act, comply with the policies and regulations relating to security of communications made in terms of the National Strategic Intelligence Act, 1994 (Act NO.39 of 1994).
The business and operational plans of Comsec must be approved by the Board, with the approvalof the Minister.
The Board is made up of notmorethanninemembers of whom-one is the non-executive chairperson; not more than four are executive directors, oneof whom must be designated as the Chief Executive Officer; and the rest are additional non-executive members, consisting of persons approved by the Minister on the basis of relevant expertise.
A majority of the Board of Directors forms a quorum at any meeting of the Board.
On an equality of votesinanymeeting of the Board, thechairperson has a casting vote in addition to a deliberative vote.
IO. (1) A non-executivemember of the Board- holds office for a period of three years, which the Minister may extend for further periods of three years each or such shorter periods as the Minister may determine; serves on the terms and conditions determined by the Minister and specified in the letter of appointment of the member; and may resign by giving three month's written notice to the Minister or as stipulated in the letterof appointment.
A member of theBoard, excepttheexecutive directors and anyappointed member who holds a post or office in the Public Service or any institution, organisation or body established by or under any other law and funded whollyor partly by the State, may be remunerated on a daily basis at a rate determined by the Minister with the concurrence of the Minister of Finance.
TheMinistermay in the prescribedmanner, remove any member of the Board from office on the grounds of misconduct, incompetence or incapacity or failure to obtain the necessary security clearance.
TheChiefExecutiveOfficer is responsible for the administration andthe general management. and control of the day to day functioning of Comsec, subject to the directions and instructions issued by the Board.
The Minister oranyotherMinistermay, attherequestofComsec, second an employee to Comsec in accordance with an Act of Parliament providing for the IntelligenceServicesorsection 15(3) of thePublicService Act, 1994 (Proclamation No. 103 of 1994), as the case may be.
Foraslong as anemployee is seconded to Comsec, Comsecmust re-imbursetherelevantdepartment for the remunerationandallowances paid by such department to the employee, and for any other expenditure arising from the secondment of that employee.
Any employee in electronic security function in the Security Services contemplated in Chapter 11 of the Constitution, or in any establishment or entity contemplated in section 7(3),may be made an employment offer by Comsec.
as to which portion of the costs of the transferred benefits is to be carried by the employer and which portion by Comsec.
Theagreementcontemplated in subsection (2)(b) mustalsodealwith any other existing contractual obligation between the employer and the employee.
TheBoardmust, within six monthsafterComsec'sincorporation, and thereafter in every second year, request in the prescribed manner, all organs of state to submit to the Board an analysisof their electronic communications security needs.
TheBoardmust, afterhavingconsidered an analysis contemplated in subsection (2) and if satisfied that Comsec must attend to the electronic communication may into regulate agreements relationship with organsof state.
The funds of Comsec(Pty)Ltdconsist of-monies received from Parliament as part of the Vote of the Intelligence Services submitted in terms of the Special Services Account Act,1969 (Act No. 81 of 1969); monies received for services provided as stipulated in the agreements entered into with organs of state; funds, finances and grants contemplatedin subsection (7); donations contemplated in subsection(8).
Comsecmustperform its functions in an efficient and cost-effective manner.
In the eventofexcessfunds, theBoard must recommend to the Minister, on the basisof a strategic pian, how such funds may be retained by Comsec and for which purpose.
PaymentforservicesprovidedbyComsec to an organ ofstatemust be made in accordance with the business agreement between the parties.
government grants, for the effective functioning of Comsec.
bequests, subject to the Public Finance Management Act, 1999(Act No. 1 of 1999).
(9)Thebooksandrecords of accountsand financial statements of Comsec must be audited annually by the Auditor-General in accordance with the Special Services Account Act, 1969 (ActNo.81 of 1969).
TheBoardmustdirecthowtheproduct, service, item, methodorany other thing of any nature contemplatedin subsection (I)is to be utilized by Comsec in the achievement of its objective.
The Ministermay, attherequestofanorgan of state, exemptsuch organ of state from the application of this Act if the exemption will not compromise national security.
Comsecmustprovideprotection to critical electronic communications infrastructure, such as computer systems and programmes.
TheMinister may, on the recommendationofComsec, identify critical communications infrastructure and request Comsecto provide the necessary protection.
contravenes a provision thereof, or fails to comply therewith, is guilty of an offence and on conviction liableto a fine orto imprisonment for a period not exceeding five years.
subsection (l)(a), to a fine or toimprisonment for a period not exceeding 10 years; and section (I)@), for a period not exceeding one year.
The Minister, Comsec or any of its employees is not liable for anything done in good faith in terms of furthering the objectives of the Act.
All assets, liabilities, rightsandduties, including funds, resources and administrative records, of an entity or establishment of the State which ceases to exist by virtue of an integration contemplated in section7(3)vest upon such integration in Comsec, and must be regarded to have been acquired or incurred byComsec in terms of this Act.
No duty, officefeeoranyothercharge is payable in respect of any entry or endorsement madein terms of subsection (2).
The laws mentioned in the firstcolumn of Schedule 1 are hereby amended to the extent set outin the third columnof that Schedule.
This Act is calledtheElectronicCommunicationsSecurity(Pty)LtdAct, 2002, and comes into operation on a date determined by the President by proclamation in the Gazette.
Thesubstitutionforsection 5 of.
Moneys standing to the credit 2f the account which are not equired for immediate use or as a reasonable working balance, may be invested in such manner as may be determined by the President, Executive Deputy President or Minister responsible forthe National Intelligence Agency,[or]the South African Secret Service or Comsec with the concurrence of the Minister of Finance?
Theamendment of section1 by the deletion in paragraph (b) of the definition of "publicservice" of the word"and",and by the addition of the following paragraph: u@ Comsec.".
Theamendmentofsection 1 by the deletion in paragraph (b) of the definition of "publicservice" of the word"and",andby the addition of the following paragraph:"aComsec."
"(3) This Act does not apply to members of the National Defence Force, the National Intelligence Agency or the South African Secret Service or to the directors andstaff of Comsec.".
MEMORANDUM ON THEOBJECTS OF THE ELECTRONIC COMMUNICATIONS SECURITY (PTY) (LTD) BILL, 2002 1. CONTENTS OF BILL This Bill seeks to establish Electronic Communications Security (Pty) Ltd (ComsecJ') as a private companyin terms of the Companies Act,1973, with the State as the sole shareholder. The objective of Comsec is to protect and secure certain electronic communications of organs of state against unauthorised access or other related technical or electronic threats.
In terms of the proposed Bill, Comsec may be exempted from certain provisions of the Companies Act by a declaration made by the Ministerof Trade and Industry in the Gazette after a recommendation from Comsec and a request from the Minister for Intelligence Services. Such request must be fully motivated.
The Bill also seeks to authorise Comsec to integrate agenciesof the State which provide services similar to thoseof Comsec, into Comsec. All organs of state will have to procure and access electronic communications products and systems with the verification and approval of Comsec. However, organs of state may be exempted from the applicationof this Act.
will be a Chief, Eyecutive Officer.
PARLIAMENTARYPROCEDURE The State Law Advisers and the Departmentof Justice and Constitutional Development areof the opinion that thisBill must be dealt with in accordance with the procedure establishedby section 75 of the Constitution since it contains no provision to which the procedure setout in section 74 or 76 of the Constitution applies.