GILAB: SSA briefing; with Minister

Meeting report

The Chairperson said the meeting was focused on discussing the General Intelligence Laws Amendment Bill (GILAB) which was recently passed by the National Assembly. Following this, the ad hoc Committee was constituted and had begun the process, aiming for a productive day with the Department's briefing. He asked the Committee Secretary to display the agenda on the screen, expressing the importance of understanding the nature of the bill.

He extended a formal welcome to the Committee Members and Ms Khumbudzo Ntshavheni, Minister in the Presidency, as well as the support team from Parliament and other stakeholders. The focus then turned to the bill, with the aim of gaining insight into its background, purpose, and key areas of emphasis, particularly regarding the governance of the intelligence services and national security.

Ms S Shaikh (ANC, Limpopo) moved the adoption of the agenda, and Ms M Dlamini (ANC, Mpumalanga) seconded. The agenda was duly adopted.

The Chairperson acknowledged the Minister's presence and invited her to deliver opening remarks, recognising the difficult circumstances she was facing due to a family bereavement.

Minister's opening remarks

Ms Ntshavheni expressed gratitude for the opportunity to address the Assembly regarding the legislation process concerning the National Council of Provinces (NCOP). She highlighted the importance of complying with legal requirements, especially in light of recommendations from the high-level review panel on state matters, which had prompted the division of the State Security Agency (SSA) into two entities, one handling domestic affairs and the other focusing on foreign matters. She also mentioned the responsibilities of the Academy in preparing these agencies for their tasks, including mechanisms for bulk interception which had arisen from legal cases like that of the AmaBhungane Centre for Investigative Journalism.

The Minister said there was a need for legislation to address bulk interception, and targeted interception in line with national interests and security matters, while ensuring compliance with personal data protection provisions. She also outlined the proposed regulatory framework for intelligence services' compliance monitoring and coordination, addressing concerns raised about coordination among national intelligence structures.

Furthermore, she informed the Committee about regulations for intelligence coordination, set to come into effect on 5 April, following the consultation processes. Ms Ntshavheni assured Members of her readiness to engage in discussions and respond to queries during the public participation processes, highlighting her commitment to ongoing support and clarification.

SSA on objects of the GILAB

Ms Joyce Mashele, Deputy Director-General, State Security Agency (SSA), acknowledged sending the presentation to the Committee’s secretariat, and stated her intention to follow it as a guideline for the deliberations.

The Chairperson interjected, confirming receipt of the presentation, and questioned whether it was Department policy for representatives not to show their faces to the public.

Ms Mashele said that her face was classified and could be shown only with permission from the Director General. He was present and had joined her in the same room. She requested permission to hand over to him.

Overview

Dr Loyiso Jafta, Acting Director-General, SSA, said he would provide an overview of the GILAB based on two principal issues raised over time. He mentioned the findings and recommendations of the High-Level Review panel, which had recommended disestablishing the SSA and reverting to the original architecture post-1994 due to the substantive policy errors in amalgamating the former National South African Secret Service (NSASS) and the National Intelligence Agency (NIA). He noted that the external intelligence agency would be invested with a departmental counter-intelligence mandate, enabling it to conduct counter-intelligence within its institutional arrangements.

He also addressed the judgment by the apex court of the land, which had found bulk interception unlawful due to the lack of enabling legal instruments. The Bill now provided such legal instruments for bulk interception by the intelligence community. Mr Jafta expressed the view that the bill in its present form remedied the previous situation. He also mentioned submissions made by intrastate interest groups -- primarily the Office of the Inspector-General and the Office of the Coordinator for Intelligence -- advocating greater autonomy. The Bill substantively responded to these submissions by granting greater latitude on administrative matters, such as funding and the appointment of functionaries.

He said that the National Assembly had conducted consultations with the public throughout the country, receiving oral and written submissions. The Department of State Security had responded adequately to the issues raised during the public consultation processes, and the National Assembly Committee had been satisfied with this process.

In summary, he highlighted the Bill's provisions for splitting the two agencies and enabling legal instruments for bulk interception, clarifying that bulk interception pertained exclusively to activities outside of the Republic.

Ms Mashele mentioned that the background information provided by both the Minister and the Acting DG referred to the report of the High-Level Review Panel, which advocated for the disestablishment of the State Security Agency (SSA) and the establishment of a South African intelligence agency focused on internal matters (SAIA) and a South African intelligence service focusing on the external environment (SAIS), along with the National Communication Centre and the South African National Academy of Intelligence. She noted that this directive required amendments to intelligence laws, and pointed out that only the President could establish an intelligence division or service according to the Constitution.

In November 2023, the SSA had presented a draft bill to the Speaker of the National Parliament, which proposed amendments to relevant legislation, such as the National Strategic Intelligence Act of 1994 and the Intelligence Services Act of 2002, among others. The Bill aimed to disestablish the SSA and establish the proposed agencies, while also providing a legislative mandate for bulk interception capacity and functions to comply with the Constitutional Court judgment relating to the Amabhungane case. Further, it sought to establish a regulatory framework for compliance monitoring and coordination of intelligence activities, as well as regulating cybersecurity and protecting information. The Bill also aimed to empower the Minister to prescribe regulations for accountability and control of intelligence structures.

She outlined the process followed, which included consultations with relevant ministers and Cabinet Committees, as well as public hearings in provinces and at Parliament, both in person and virtually. The Bill underwent revisions based on public feedback, and the deadline for public submissions was extended to accommodate further input. After deliberations and revisions, the Bill was adopted by the National Assembly and referred to the National Council of Provinces for concurrence.

Ms Mashele discussed the content of the Bill, highlighting key definitions introduced and noting that some definitions were left out, such as those for domestic and foreign intelligence. She proposed sending a written document with track changes to address minor grammatical issues in the Bill.

Regarding the mandate and functions of the proposed services, she said that the Bill proposed the establishment of two agencies: the South African Intelligence Service and the South African Intelligence Agency. She outlined their respective responsibilities, including gathering and analysing intelligence, counter-intelligence measures, and providing intelligence to relevant government departments and committees.

She also detailed the responsibilities of the National Communication Centre and the National Academy of Intelligence, as well as the regulations proposed in the Bill. She addressed issues raised by the public, such as concerns about definitions and the role of the Minister in operations, and clarified how the Bill addressed these concerns.

Finally, she mentioned issues raised by the public regarding corruption, access to basic services, and cross-border crimes, noting that while these were important, they could not be addressed through the Bill. She concluded by expressing readiness to clarify any further issues arising from the public consultations.

(See attached)

Discussion

The Chairperson indicated that the Department would provide responses to both oral and written submissions made during the consultation process, particularly concerning the development of metrics to address raised issues. The auditing of the Bill would be carried out by Parliament's legal services, and supplementary submissions were not explicitly provided for in the process. However, the Department would have an opportunity to respond, as mentioned by the Minister, and they would be available to address the issues raised during the public hearings.

Ms Shaikh acknowledged the importance of adhering to the recommendations of the High-Level Panel review, particularly regarding the Agency's split and addressing coordination issues among intelligence structures.

She requested further elaboration on two specific issues. Firstly, she sought clarification on the autonomy of the Inspector-General of Intelligence (IGI) and the National Intelligence Coordinating Committee (NICOC), inquiring whether the proposed measures adequately protected their autonomy. Secondly, she asked for more information on interceptions outside the country, including how it aligned with international practices and whether there were sufficient safeguards in place to prevent sustained surveillance of citizens. She indicated that these were the key areas she wished the Ministry to delve deeper into.

Mr R Badenhorst (DA, Western Cape) inquired about potential changes made to the Bill since its approval by the Committee in the National Assembly on 26 March. He sought clarification on whether there had been any amendments between the Committee's approval and the version of the Bill presented that day. If modifications had been made, he requested an explanation of their impact on the Bill.

Mr S Du Toit (FF+, North West) requested further clarification regarding the mass monitoring of bulk interceptions outside the Republic, seeking details on how this process would occur. He also inquired about the powers and the role of the Minister in the restructuring, and the extent of their authority in this regard.

Mr C Dodovu (ANC, North West) acknowledged that the process addressed key issues raised by the high-level panel on intelligence, particularly the separation of entities and the establishment of an agency and academy. However, he voiced concern over the limited time Parliament had dedicated to the legislation, highlighting the need for thorough scrutiny and public participation, especially considering the panel's focus on national security.

He questioned the linkage between the national state security report and the current process, querying why the report had not been made public to allow for public input. Secondly, he addressed the establishment of separate entities within the SSA, commending the clarity provided in the bill, but seeking further explanation of the difficulties encountered during the amalgamation of the two agencies. Lastly, he expressed interest in the penalties for transgressions outlined in the regulations that the Minister could promulgate, emphasising the importance of robust enforcement mechanisms. He asked where these penalties were detailed and how they would be enforced.

The Chairperson said he had a question of his own, which he believed required input from the Department. Referring to the report that had been adopted, he queried the exclusion of three aspects: the Deputy Inspector General, the Deputy Chairperson of the Joint Standing Committee on Intelligence, and the legislation regarding the Joint Standing Intelligence Committee meeting with the President. Although these aspects were initially absent from the report, they were later included during consultations. However, they were then subsequently removed in the final adopted report. The Chairperson sought to understand the Department's perspective on these amendments, and whether they posed any fundamental challenges. He indicated a desire to hear responses from the relevant officials regarding the reasons for the removal of these aspects.

Responses

Mr Jafta said that the Department's role in shaping the Bill had concluded once they provided input before it went to Cabinet and the National Assembly. Therefore, no amendments could be made to the Bill at this stage. He confirmed that there had been no changes to the Bill approved by the National Assembly.

Regarding bulk interception, he discussed its comparison to international best practices and its scope outlined in the Bill, which included foreign signals, communications, and non-communications. He illustrated the complexity of bulk interception by providing examples of various platforms and applications used in intelligence gathering, such as imagery intelligence, cryptography, and electronic warfare systems.

He explained that while the Bill enabled bulk interception, there may be challenges in the future, particularly concerning the involvement of a judge in authorising applications. He raised concerns about the practicality of obtaining judicial approval, especially in urgent situations like military operations abroad. He referred specifically to sections 2(b) 1 and 2(c), discussing their implications and alignment with international best practices. He stressed the importance of these sections, noting that they enabled the gathering and analysis of large amounts of data using AI systems. He highlighted the need for auditable and verifiable procedures for disposing of intercepted data that was not used. He also discussed emergency scenarios where immediate action might be necessary, such as intercepting communications related to criminal activities or terrorist threats within South Africa. He stressed the importance of regulating such emergency situations to ensure that intelligence agencies could respond effectively without compromising legal safeguards.

Addressing the disposal and verification of intercepted data, he referred to the need for auditable and verifiable procedures. He highlighted the importance of using intercepted information only for lawful purposes, and outlined emergency scenarios where immediate action might be necessary, such as preventing drug trafficking or terrorist activities.

Ms Mashele clarified that the Deputy Inspector General, the Deputy Chairperson of the Joint Standing Committee on Intelligence (JSCI), and quarterly meetings of the Joint Standing Committee with the President, were not originally included in the Bill when it was being dealt with. While the SSA had no objections to the raised issues, they believed that the Standing Committee and the Minister would be the most appropriate parties to address them. She emphasised that it was not within their mandate to address these matters, but would provide input when required.

Mr Calvin Manganyi, Committee Content Advisor, requested permission to provide clarification on several issues raised, adding that he would subsequently yield the floor to the legal advisor for additional details.

Addressing the amendments, he delved into the timing adjustment for the annual report of the JSCI. He clarified the rationale behind the change, pointing out the discrepancy between the timing stipulated in the act and the practical challenges encountered by the Committee in compiling the report. He emphasised the importance of aligning the reporting timeline with the availability of relevant information to ensure the accuracy and relevance of the report.

He also elaborated on the amendments pertaining to the appointment of the Chairperson and Deputy Inspector General of Intelligence (IGI). Drawing attention to the challenges posed by vacancies in these crucial positions, he underscored the necessity of ensuring continuity in oversight functions to effectively monitor intelligence activities. He provided examples of past instances where such vacancies had resulted in disruptions to the Committee's operations, and stressed the need for provisions to address these issues proactively.

In addition to these amendments, Mr Manganyi discussed the inclusion of quarterly meetings with the President and the establishment of the evaluation committee outlined in the Secret Services Act of 1978. He highlighted the significance of enhancing the Committee's effectiveness through regular engagement with key stakeholders and the implementation of mechanisms for comprehensive evaluation of intelligence services. He illustrated the importance of these amendments with examples of past challenges faced by the Committee in fulfilling its oversight responsibilities and the potential benefits of the proposed changes.

Concluding his remarks, he deferred to the legal advisor to explain the procedural aspects involved in including these amendments, particularly those that were not part of the initial submission. He said due process had to be followed in implementing these changes to ensure their legality and effectiveness in enhancing the functioning of the Committee.

Mr Nathi Mjenxane, Parliamentary Legal Advisor, elaborated on the issues raised by Mr Manganyi regarding the proposed amendments by the JSCI in the National Assembly. He referred to National Assembly Rule 286, subsection four, which empowered the Committee to inquire into additional or further matters proposed in a bill, as introduced. He explained that the Committee's authority to address these matters must be granted by the National Assembly. However, upon deliberation, the National Assembly had decided not to grant permission for the Committee to inquire into these matters further. Consequently, the issues proposed by the Ad Hoc Committee, such as those concerning the Deputy Inspector General (IG) and the deputy chairperson, needed to be removed from the bill.

Mr Mjenxane clarified that the decision to remove these proposed amendments was based on the Ad Hoc Committee's assessment of insufficient consultation conducted during the initial stages. He highlighted the relevance of Section 3, subsection (k), which allowed the Committee to consult with any member of the Cabinet, including the President. While the President could be consulted under this provision, the Committee deemed it necessary to explicitly include consultation with the President in the legislation.

He also addressed a question raised by Members regarding the legislative process. He reminded them of the procedure outlined in Section 75 of the Constitution, which governs the enactment of legislation. Specifically, he referred to Section 75, subsection 1(c), which states that if the Council rejects the bill or passes it subject to amendments, the Assembly must reconsider the bill. He said that the bill had to be sent back to the Assembly for reconsideration, taking into account any amendments proposed by the Council. The Assembly then had the option to pass the bill again with or without the amendments, or to decide not to proceed with the bill at all.

Regarding the issue of delegated power or regulations, Mr Mjenxane noted that the Bill included provisions for regulations to be made. He said that regulations were a delegated power granted to the executive to make rules, as they had the day-to-day operational knowledge required for efficient implementation. Regulations would cover all the necessary eventualities for exercising the power granted by the legislation.

Mr Manganyi apologised for forgetting to clarify a small but important part. He explained that the reason certain elements were removed from the Bill had been due to the need for further consultation. However, the National Assembly Committee had realised that given the timeframe to pass the Bill and the granted extension, there was insufficient time for further consultation. They had therefore decided to remove those elements from the Bill. This decision did not prevent the Committee from making further amendments, as indicated by the legal processes outlined by his colleague.

Further discussion

Ms Shaikh requested elaboration on the autonomy of the Inspector General and the National Intelligence Coordinating Committee.

Ms Mashele said that the provisions currently in the Bill were made collaboratively by both NICOC and the Inspector General. Discussions had been held with the Minister regarding these provisions, and it was assumed that they were sufficient for ensuring autonomy. However, if there were any concerns regarding autonomy, NICOC and the Inspector General would indicate so, and they would still have the opportunity to make further submissions if required by the Committee.

Ms Mashele then addressed a question about the publication of the national security strategy, stating that it fell within the domain of NICOC. She gave an assurance that they would raise the matter with NICOC's leadership to address the application of the strategy.

Regarding the role of the Minister in the two departments to be formed -- the Agency and the service -- she introduced Dr Elijah Luvhengo, General Manager: Information Services, SSA, to answer the question.

Dr Luvhengo addressed the role that the Minister is supposed to play regarding operational issues, referring to one of the 73 recommendations of the High-Level Review Panel. This recommendation emphasised that ministers, as political principals, should not involve themselves in operational matters. As a response to this recommendation, the Department had decided to utilise the legislative review process to amend Section 10(3) of the Intelligence Services Act. This amendment specifies that only the Directors-General of the State Security Agency and the South African Intelligence Service would issue operational directives. Consequently, the Minister would be confined to providing policy directives or exercising executive authority on intelligence matters, aligning with the Constitution's provisions.

He concluded by stating that this amendment ensured compliance with the Constitution, and addressed the question raised by the Members.

The Chairperson acknowledged the comprehensive briefing provided by the Department. However, he sought clarification from the Content Advisor regarding the statement about insufficient consultation. He inquired about the process that would be necessary if the Ad Hoc Committee wished to reintroduce the three issues that had been removed. What would the required consultation entail?

Mr Manganyi said that the consultation process required for reintroducing the three issues removed from the bill would involve both parliamentary and political dimensions, given the involvement of the various political parties. He suggested that consultation would likely involve stakeholders affected by the proposed changes, not just Parliament or the Joint Standing Committee (JSC). For instance, he mentioned that appointments, such as those of the Inspector General of Intelligence agents, were made by the President after Parliament followed the necessary processes outlined in the Intelligence Services Oversight Act. Therefore, consultation would likely involve stakeholders agreeing on the proposed changes.

Regarding internal issues within the JSC, he noted that consultation could be conducted within the Committee itself, without a strict timeline. He emphasised that the Committee still had time to finalise any changes before its planned conclusion on 16 May 2024, and reiterated that referring proposed changes back to the National Assembly should not be viewed as a significant obstacle.

The Chairperson thanked Mr Manganyi for his input, and proceeded to address the remaining items on the agenda.

He expressed sincere gratitude on behalf of the Committee to the Minister and the team for their responses during the briefing. He mentioned that the Committee had invited the Department to respond to issues raised during public hearings, either through written or oral representations.

Adoption of minutes

Minutes dated 28 March

Ms Shaikh moved their adoption and, was seconded by Mr Du Toit.

The Chairperson announced that the minutes were duly adopted.

Amendment of Committee programme

The Chairperson then moved on to discuss the amendment to the Committee's programme, particularly focusing on processes related to public comments, briefings, and public hearings. He emphasised the importance of addressing the outstanding provinces that were not covered by the National Assembly's Ad Hoc Committee, highlighting the need for Members to make themselves available to navigate through the workload effectively.

He said that the corrections, highlighted in yellow, had been made to accommodate Members of the Ad Hoc Committee who would be attending Select Committees on Tuesday mornings. This adjustment aimed to ensure sufficient attendance, without forcing Members to choose between Committees. He concluded by inviting any comments from Members, expressing the belief that Members would be satisfied with the changes made.

The Members were happy with the programme.

Closing remarks

The Chairperson took the opportunity to express gratitude to the Committee Members for their dedication, acknowledging the sacrifices they had made during the recess to ensure the success of the Committee's business. He extended appreciation to the Minister and the team for their efforts, as well as the parliamentary team, including Committee secretaries, researchers, advisors, managers, and legal advisors, for their support and preparations for the meeting. He also expressed appreciation to the media communication team of Parliament and the Parliamentary Monitoring Group for their contributions.

The meeting was adjourned.