Statutes 5: General Intelligence Laws Amendment Act 11 of 2013

Fickle

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Act No. 11 of 2013

GENERAL INTELLIGENCE LAWS AMENDMENT ACT, 2013

GENERAL EXPLANATORY NOTE:

[ ] Words in bold type in square brackets indicate omissions from existing enactments.

Words underlined with a solid line indicate insertions in existing enactments.

(English text signed by the President)

(Assented to 19 July 2013)

ACT

To amend the National Strategic Intelligence Act, 1994, the Intelligence Services Oversight Act, 1994, and the Intelligence Services Act, 2002, and repeal the Electronic Communications Security (Pty) Ltd Act, 2002, so as to accommodate the establishment of the State Security Agency as a body into which certain governments components are absorbed; to effect technical amendments to certain laws brought about by the abolishment of those government components; to effect certain other technical amendments to laws; and to provide for matters connected therewith.

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:

Amendment of section 1 of Act 39 of 1994, as amended by section 1 of Act 37 of 1998, section 24 of Act 66 of 2000, section 1 of Act 67 of 2002 and section 1 of Act 52 of 2003

1. Section 1 of the National Strategic Intelligence Act, 1994, is hereby amended—

(a) by the substitution for the definition of “Agency” of the following definition:

“‘Agency’ means the [National Intelligence] State Security Agency as referred to in section 3(1) of the Intelligence Services Act, 2002 (Act No. 65 of 2002);”;

(b) by the substitution for the definition of “counter-intelligence” of the following definition:

“‘counter-intelligence’ means measures and activities conducted, instituted or taken to impede and to neutralise the effectiveness of foreign or hostile intelligence operations, to protect intelligence and any classified information, to conduct [security screening] vetting investigations and to counter [subversion, treason, sabotage and terrorism aimed at or against personnel, strategic installation or resources of the Republic] any threat or potential threat to national security;”;

“‘departmental intelligence’ means intelligence [about any] on any threat or potential threat to [the] national security [and stability of the Republic] which falls within the functions of a department of State, and includes intelligence needed by such department in order to neutralise such a threat;”;

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(d) by the substitution for the definition of “domestic intelligence” of the following definition:

“‘domestic intelligence’ means intelligence on any internal [activity, factor or development which is detrimental to the national stability of the Republic, as well as threats or potential threats to the constitutional order of the Republic and the safety and the well-being of its people] threat or potential threat to national security;”;

(e) by the insertion after the definition of “foreign military intelligence” of the following definition:

“‘intelligence’ means any information obtained and processed by a National Intelligence Structure for the purposes of informing any government decision or policy-making process carried out in order to protect or advance the national security, and includes—

(a) counter-intelligence;

(b) crime intelligence;

(d) domestic intelligence;

(e) domestic military intelligence;

(f) foreign intelligence; and

(g) foreign military intelligence;”;

(f) by the substitution for the definition of “National Intelligence Structures” of the following definition:

“‘National Intelligence Structures’ means—

(a) Nicoc;

(b) the intelligence division of the National Defence Force, established under the Defence Act, 2002 (Act No. 42 of 2002);

(d) the Agency; [and

(e) the Service];”;

(g) by the insertion after the definition of “National Intelligence Structures” of the following definition:

“‘national security’ includes the protection of the people of the Republic and the territorial integrity of the Republic against—

(a) the threat of use of force or the use of force;

(b) the following acts:

(i) Hostile acts of foreign intervention directed at undermining the constitutional order of the Republic;

(ii) terrorism or terrorist-related activities;

(iii) espionage;

(iv) exposure of a state security matter with the intention of undermining the constitutional order of the Republic;

(v) exposure of economic, scientific or technological secrets vital to the Republic;

(vi) sabotage; and

(vii) serious violence directed at overthrowing the constitutional order of the Republic;

(c) acts directed at undermining the capacity of the Republic to respond to the use of, or the threat of the use of, force and carrying out of the Republic’s responsibilities to any foreign country and international organisation in relation to any of the matters referred to in this definition, whether directed from, or committed within, the Republic or not,

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but does not include lawful political activity, advocacy, protest or dissent;";

(h) by the substitution for the definition of “relevant members of the National Intelligence Structures” of the following definition:

“‘relevant members of the National Intelligence Structures’ means—

(a) the intelligence division of the National Defence Force;

(b) the intelligence division of the South African Police Service; and

(d) the Service];

(i) by the insertion after the definition of “relevant members of the National Intelligence Structures” of the following definition:

“‘security competence’ means a person’s ability to act in such a manner that he or she does not cause classified information or material to fall into unauthorised hands, thereby harming or endangering the security or interests of the State, and is measured against a person’s—

(a) susceptibility to extortion or blackmail;

(b) amenability to bribes and susceptibility to being compromised due to his or her behaviour; and

(j) by the deletion of the definition of “Service”;

(k) by the insertion after the definition of “South African Police Service” of the following definitions:

“‘state security matter’ includes any matter which has been classified in terms of any national law and which is dealt with by the Agency or which relates to the functions of the Agency or to the relationship existing between any person and the Agency;

‘terrorist and related activities’ means terrorist and related activities as defined in section 1 of the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004 (Act No. 33 of 2004);”; and

(l) by the insertion after the definition of “this Act” of the following definitions:

“‘vetting field work units’ means vetting field work units referred to in section 2A(5A);

‘vetting investigation’ means the prescribed investigation followed in determining a person’s security competence;”.

Amendment of section 2 of Act 39 of 1994, as amended by section 2 of Act 37 of 1998 and section 2 of Act 67 of 2002

2. Section 2 of the National Strategic Intelligence Act, 1994, is hereby amended—

(a) by the substitution in subsection (1)(a) for the words preceding subparagraph (i) of the following words:

“to gather, correlate, evaluate and analyse domestic and foreign intelligence (excluding foreign military intelligence), in order to—”;

(b) by the substitution in subsection (1)(a) for subparagraph (i) of the following subparagraph:

“(i) identify any threat or potential threat to [the security of the Republic or its people] national security;”;

“(ivA) supply intelligence relating to any such threat to any other department of State for the purposes of fulfilment of its departmental functions; and”;

(d) by the substitution in subsection (2) for the words preceding paragraph (a) of the following words:

“It shall, subject to section 3, also be the functions of the [Service] Agency—”;

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(e) by the substitution in subsection (2) for paragraphs (b) and (c) of the following paragraphs, respectively:

“(b) [to institute] in the prescribed manner, and in regard to communications and cryptography—

(i) [counter-intelligence measures within the Service; and] to identify, protect and secure critical electronic communications and infrastructure against unauthorised access or technical, electronic or any other related threats;

(ii) [in consultation with the Agency, counter-intelligence measures outside the Republic; and] to provide cryptographic and verification services for electronic communications security systems, products and services used by organs of state;

(iii) to provide and coordinate research and development with regard to electronic communications security systems, products and services and any other related services;

(c) to [gather departmental intelligence at the request of any interested department of State, and, without delay to evaluate and transmit such intelligence and any other intelligence at the disposal of the Agency and which constitutes departmental intelligence, to the department concerned and to Nicoc] liaise with intelligence or security services or other authorities, of other countries or inter-governmental forums of intelligence or security services;”

(f) by the addition to subsection (2) of the following paragraphs:

“(d) to train and support users of electronic communications systems, products and related services;

(e) to develop, design, procure, invent, install or maintain secure electronic communications systems or products and do research in this regard; and

(f) to cooperate with any organisation in the Republic or elsewhere to achieve its objectives.”; and

(g) by the insertion after subsection (2) of the following subsection:

“(2A) When performing any function referred to in subsection 2(b) the Agency is exempted from any licensing requirement contemplated in—

(a) the Broadcasting Act, 1999 (Act No. 4 of 1999); and

(b) the Electronic Communications Act, 2005 (Act No. 36 of 2005).”

Amendment of section 2A of Act 39 of 1994, as amended by section 3 of Act 67 of 2002 and section 2 of Act 52 of 2003

3. Section 2A of the National Strategic Intelligence Act, 1994, is hereby amended—

(a) by the substitution for the heading of the following heading:

“[Security screening] Vetting investigations”;

(b) by the substitution in subsection (1) for the words preceding paragraph (a) of the following words:

“The relevant members of the National Intelligence Structures may conduct a [security screening] vetting investigation in the prescribed manner to determine the security competence of a person if such a person—”;

“(2) The Agency shall be responsible for [security screening] vetting of persons contemplated in subsection (1) and, on request of the South African Police Service[, the Service] or the National Defence Force, persons employed by, applicants to or persons rendering a service to the South African Police Service[, the Service] or the Department of Defence and Military Veterans.

(3) Notwithstanding the provisions of subsection (2) the Agency may request the assistance of the South African Police Service, [or] the

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National Defence Force or the vetting field work units in the performance of the function contemplated in subsection (2).";

(d) by the substitution in subsection (4) for paragraph (a) of the following paragraph:

“(a) In performing the [security screening] vetting investigation contemplated in subsection (1), the relevant members of the National Intelligence Structures may use a polygraph to determine the reliability of information gathered during the investigation.”;

(e) by the insertion after subsection (5) of the following subsection:

“(5A) (a) Departments of State may, at the request of the Agency, establish units to be known as vetting field work units.

(b) Vetting field work units may, on request by the Agency, assist a relevant National Intelligence Structure in gathering the information contemplated in subsection (5).”; and

(f) by the substitution for subsections (6) and (7) of the following subsections, respectively:

“(6) The head of the relevant National Intelligence Structure or any officials delegated by him or her in writing may, after evaluating the information gathered during the [security screening] vetting investigation, issue, degrade, withdraw or refuse to grant a security clearance.

(7) The head of the relevant National Intelligence Structure may establish a [security screening] Vetting Advisory Board comprising of members or employees of the relevant National Intelligence Structure to assist him or her or any delegated officials contemplated in subsection (6) in the determination of the security [competency] competence of a person.”

Amendment of section 3 of Act 39 of 1994, as amended by section 3 of Act 37 of 1998

4. Section 3 of the National Strategic Intelligence Act, 1994, is hereby amended—

(a) by the substitution in subsection (1) for the words preceding paragraph (a) of the following words:

“If any law expressly or by implication requires any department of State, other than the Agency [or the Service], to perform any function with regard to the security of the Republic or the combating of any threat to the security of the Republic, such law shall be deemed to empower such department to gather departmental intelligence, and to evaluate, correlate and interpret such intelligence for the purpose of discharging such function: Provided that such department of State—”;

(b) by the deletion in subsection (1)(b) of subparagraph (iii) of the second proviso; and

“(5) Notwithstanding any law to the contrary, no department of State or statutory body shall withhold information in its possession or under its control from the Agency when such information is reasonably required for any investigation in terms of section 2(1) and (2).

(6) It shall be the duty of any of the members of the National Intelligence Structures to immediately transfer any intelligence in its possession that is required by another member of the National Intelligence Structures for the fulfilment of its statutory functions.

(7) The head of an organ of state must ensure that the organ of state under his or her administration procures and accesses electronic communications products with the verification and approval of the Agency.

(8) The head of an organ of state must, at the request of the Agency and in the prescribed manner, submit to the Agency an analysis of the electronic communications security needs of the organ of state under his or her administration.”

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Amendment of section 4 of Act 39 of 1994, as amended by section 4 of Act 37 of 1998, section 25 of Act 66 of 2000 and section 4 of Act 67 of 2002

5. Section 4 of the National Strategic Intelligence Act, 1994, is hereby amended by the substitution for subsection (1) of the following subsection:

“(1) There is hereby established a National Intelligence Co-ordinating Committee, which shall consist of the following persons:

(a) The Co-ordinator for Intelligence appointed under section 5(1), who shall be the Chairperson;

(b) the Director-General of the Agency;

(d) the head of the foreign division of the Agency;

(e) the head of the intelligence division of the South African Police Service; and

(f) the chief of the intelligence division of the National Defence Force, or the alternates of the said persons, and such members of departments of State who may be co-opted by Nicoc on a permanent or an ad hoc basis.”.

Insertion of section 5B in Act 39 of 1994

6. The following section is hereby inserted in the National Strategic Intelligence Act, 1994, after section 5A:

Compliance with Constitution

5B. When performing any function provided for in this Act, the Constitution, in particular section 199(5) and (7), must be duly complied with.”

Amendment of section 6 of Act 39 of 1994, as amended by section 7 of Act 37 of 1998, section 26 of Act 66 of 2000 and section 7 of Act 67 of 2002

7. Section 6 of the National Strategic Intelligence Act, 1994, is hereby amended—

(a) by the substitution in subsection (1) for paragraphs (b) and (c) of the following paragraphs, respectively:

“(b) the carrying out of [security screening] vetting investigations by members of the National Intelligence Structures;

(c) the [co-ordination of intelligence as an activity] conduct of counter-intelligence operations, counter-measures and intrusive operations;”;

(b) by the substitution in subsection (1) for paragraph (f) of the following paragraph:

“(f) the [co-ordination of crime intelligence; and] supply of intelligence products to the Minister;”;

(c) by the deletion in subsection (1) of the word “and” at the end of paragraph (f) and the insertion after that paragraph of the following paragraphs:

“(fA) the manner and form in which departmental intelligence shall be supplied to State departments;

(fB) the manner and form in which Nicoc may be tasked to gather and produce intelligence products;

(fC) the provision of staff required for the administration of this Act;

(fD) any matter necessary for the effective execution and administration of counter-intelligence functions and the co-ordination and interpretation of intelligence products; and”; and

(d) by the substitution for subsection (3) of the following subsection:

“(3) A [security screening] vetting investigation contemplated in subsection (1)(b) may entitle the relevant members of the National Intelligence Structures concerned to subject the person undergoing a [security screening] vetting investigation to a polygraph examination as prescribed, in order to determine the reliability of information provided by him or her.”.

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Amendment of section 1 of Act 40 of 1994, as amended by section 1 of Act 31 of 1995, section 1 of Act 42 of 1999, section 1 of Act 66 of 2002 and section 3 of Act 52 of 2003

8. Section 1 of the Intelligence Services Oversight Act, 1994, is hereby amended—

(a) by the deletion of the definition of “Academy”;

(b) by the substitution for the definition of “Agency” of the following definition: “Agency” means the [National Intelligence] State Security Agency referred in section 3 of the Intelligence Services Act, [1994 (Act No. 38 of 1994)] 2002 (Act No. 65 of 2002);;

(d) by the deletion of the definition of “Comsec”;

(e) by the substitution for the definition of “Head of a Service” of the following definition:

“Head of a Service” means the Director-General of the Agency [or of the South African Secret Service], the head of the Intelligence Division of the National Defence Force or the head of the Intelligence Division of the South African Police Service, but for the purposes of financial and administrative accounting, the head of the Intelligence Division of the South African National Defence Force means the Secretary for Defence and of the South African Police Service means the National Commissioner;”;

(f) by the deletion of the definition of “intelligence services”;

(g) by the deletion of the definition of “Intelligence Services Entities”;

(h) by the substitution for the definition of “Services” of the following definition: “Services” means the Agency, [the South African Secret Service,] the Intelligence Division of the National Defence Force and the Intelligence Division of the South African Police Service;”; and

(i) by the deletion of the definition of “South African Secret Service”.

Amendment of section 2 of Act 40 of 1994, as amended by section 2 of Act 31 of 1995, section 2 of Act 42 of 1999, section 2 of Act 66 of 2002 and section 4 of Act 52 of 2003

9. Section 2 of the Intelligence Services Oversight Act, 1994, is hereby amended by the substitution in subsection (1) for paragraph (b) of the following paragraph:

“(b) in respect of the administration, financial management and expenditure of the [Intelligence Services Entities] Office,”.

Amendment of section 3 of Act 40 of 1994, as amended by section 3 of Act 31 of 1995, section 3 of Act 42 of 1999, section 3 of Act 66 of 2002, section 61 of Act 70 of 2002 and section 5 of Act 52 of 2003

10. Section 3 of the Intelligence Services Oversight Act, 1994, is hereby amended—

(a) by the substitution in paragraph (a)(i) for the words preceding item (aa) of the following words:

“the Auditor-General an audit report compiled in accordance with section [4(6) of the Auditor-General Act, 1995 (Act No. 12 of 1995)] 22 of the Public Audit Act, 2004 (Act No. 25 of 2004), and after obtaining the report, to consider—”;

(b) by the substitution in paragraph (a)(i) for item (aa) of the following item: “(aa) the financial statements of the Services[, Academy and Comsec] and the Office;”;

(c) by the substitution in paragraph (a)(i) for item (cc) of the following item: “(cc) any reports issued by the Auditor-General on the affairs of the Services and the [Intelligence Services Entities] Office,”;

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(d) by the substitution in paragraph (a) for subparagraph (iii) of the following subparagraph:

“(iii) any designated judge as defined in section 1 of the Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002 (Act No. 70 of 2002), a report regarding the functions performed by him or her in terms of that Act, including statistics regarding such functions, together with any comments or recommendations which such designated judge may deem appropriate: Provided that such report shall not disclose any information contained in an application or direction referred to in that Act;”;

(e) by the substitution in paragraph (a) for subparagraph (iv) of the following subparagraph:

“(iv) the Ministers responsible for the Services and the [Intelligence Services Entities] Office, a report regarding the budget for each Service or [Entity for which he or she is responsible] the Office, as the case may be;”;

(f) by the substitution for paragraphs (d) and (e) of the following paragraphs, respectively:

“(d) to review and make recommendations on regulations made under section 6 of the National Strategic Intelligence Act, 1994 (Act No. 39 of 1994), and regulations regarding the intelligence and counter-intelligence functions of [a Service] the Agency, made under section [29] 37 of the Intelligence Services Act, [1994 (Act No. 38 of 1994)] 2002 (Act No. 65 of 2002), section [87] 82 of the Defence Act, [1957, (Act No. 44 of 1957)] 2002 (Act No. 42 of 2002), or section 24 of the South African Police Service Act, 1995 (Act No. 68 of 1995);

(e) to review and make recommendations regarding interdepartmental co-operation and the rationalisation and demarcation of functions relating to intelligence and counter-intelligence between the Agency, [the South African Secret Service,] the National Defence Force and the South African Police Service;”; and

(g) by the substitution for paragraph (l) of the following paragraph:

“(l) to consider and report on the appropriation of revenue or moneys for the functions of the Services and the [Intelligence Services Entities] Office.”

Amendment of section 4 of Act 40 of 1994, as amended by section 4 of Act 66 of 2002 and section 6 of Act 52 of 2003

11. Section 4 of the Intelligence Services Oversight Act, 1994, is hereby amended—

(a) by the substitution in subsection (3) for the words preceding the proviso of the following words:

“The Committee may, for the purposes of the performance of its functions, require any Minister responsible for a Service or [an Intelligence Services Entity] the Office, the Head of a Service, [the CEO,] the Director or the Inspector-General to appear before it to give evidence, to produce any document or thing and answer questions put to him or her:”; and

(b) by the substitution in subsection (3) for paragraph (c) of the following paragraph:

“(c) have the right to be assisted by members of the Services or [Intelligence Services Entities in question] the Office, as the case may be.”

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Amendment of section 7 of Act 40 of 1994, as amended by section 5 of Act 31 of 1995, section 5 of Act 42 of 1999, section 7 of Act 66 of 2002, section 7 of Act 52 of 2003 and section 36 of Act 12 of 2004

12. Section 7 of the Intelligence Services Oversight Act, 1994, is hereby amended by the substitution in subsection (10) for paragraph (a) of the following paragraph:

“(a) shall comply with all security requirements applicable to the employees of the [intelligence services] Agency; and”.

Amendment of section 1 of Act 65 of 2002, as amended by section 8 of Act 52 of 2003

13. Section 1 of the Intelligence Services Act, 2002, is hereby amended—

(a) by the deletion of the definition of “Academy”;

(b) by the insertion before the definition of “Advisory Committee” of the following definition:

“‘accounting officer’ means the accounting officer as defined in section 1 of the Public Finance Management Act, 1999 (Act No. 1 of 1999);”;

“‘Agency’ means the [National Intelligence] State Security Agency referred to in section 3;”;

(d) by the insertion after the definition of “Agency” of the following definitions:

“‘Auditor-General’ means the Auditor-General referred to in section 188 of the Constitution;

‘classified information’ means the State information that has been classified under national legislation;

‘Council’ means the Intelligence Council on Conditions of Service established by section 22;”;

(e) by the deletion of the definition of “Chief Executive Officer”;

(f) by the substitution for the definition of “former member” of the following definition:

“‘former member’ means any member of the [Intelligence Services or the Academy] Agency or of the former National Intelligence Agency, South African Secret Service or South African National Academy of Intelligence whose services have been terminated for any reason;”;

(g) by the deletion of the definition of “Intelligence Services”;

(h) by the deletion of the definition of “Intelligence Services Council”;

(i) by the insertion after the definition of “regulation” of the following definition:

“‘security competence’ means security competence as defined in section 1 of the National Strategic Intelligence Act, 1994 (Act No. 39 of 1994);”;

(j) by the deletion of the definition of “Service”; and

(k) by the insertion after the definition of “this Act” of the following definition:

“‘vetting investigation’ means vetting investigation as defined in section 1 of the National Strategic Intelligence Act, 1994 (Act No. 39 of 1994).”.

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Substitution of heading of Chapter II of Act 65 of 2002

14. The following heading is hereby substituted for Chapter II of the Intelligence Services Act, 2002:

“ESTABLISHMENT, COMPOSITION AND ORGANISATION OF AGENCY[, SERVICE AND ACADEMY]”.

Amendment of section 3 of Act 65 of 2002

15. Section 3 of the Intelligence Services Act, 2002, is hereby amended—

(a) by the substitution for the heading of the following heading:

“Continued existence of Agency [and Service]”;

(b) by the substitution in subsection (1) for the words preceding paragraph (a) of the following words:

“The State Security Agency referred to in Schedule 1 to the Public Service Act, 1994 (Proclamation No. 103 of 1994), and established by virtue of Proclamation No. 59 of 2009, continues to exist and consists of the following persons—”;

“(1A) The following government components listed in Part A of Schedule 3 to the Public Service Act, 1994 (Proclamation No. 103 of 1994), as that Part read immediately prior to the commencement of the General Intelligence Laws Amendment Act, 2013, are hereby absorbed into and make up the State Security Agency:

(a) Electronic Communications Security (Pty) Ltd;

(b) the South African National Academy of Intelligence;

(d) the South African Secret Service.”; and

(d) by the substitution for subsection (3) of the following subsection:

“(3) (a) The President must appoint a Director-General for [each of the Intelligence Services] the Agency.

(b) [A] The Director-General is the head and accounting officer of the [Intelligence Service in question] Agency.”.

Substitution of section 4 of Act 65 of 2002

16. The following section is hereby substituted for section 4 of the Intelligence Services Act, 2002:

“Composition of Agency [and Service]

4. (1) The Minister must for [each of the Intelligence Services] the Agency—

(a) create posts [of] at the equivalent level of Deputy Director-General [and of Assistant Director-General];

(b) establish branches, chief directorates and directorates and prescribe the functions and post structures thereof;

(2) The creation of [Deputy Directors-General] posts at the equivalent level of Deputy Director-General must be done in consultation with the President.”.

Amendment of section 5 of Act 65 of 2002

17. Section 5 of the Intelligence Services Act, 2002, is hereby amended—

(a) by the substitution for the heading of the following heading:

“Establishment of [South African National Academy of Intelligence] Training Fund for Agency”;

(b) by the deletion of subsection (1);

“The [Academy] Agency—”;

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(d) by the substitution in subsection (2) for paragraph (a) of the following paragraph:

“(a) must provide training for persons in, or conduct such examinations or tests as a qualification for the appointment, promotion or transfer of persons in or to, the [Intelligence Services] Agency or departments, as the case may be, as the Minister may prescribe; and”;

(e) by the substitution in subsection (3) for the words preceding paragraph (a) of the following words:

“The [Academy] Agency must have a Training Fund of which the funding consists of—”;

(f) by the substitution in subsection (3) for paragraph (a) of the following paragraph:

“(a) all moneys which immediately prior to the commencement of this Act were moneys defrayed for training under the [Agency] former National Intelligence Agency;”;

(g) by the insertion in subsection (3) after paragraph (a) of the following paragraph:

“(aA) all moneys which immediately prior to the commencement of the General Intelligence Laws Amendment Act, 2011, were moneys defrayed for training under the South African National Academy of Intelligence;”;

(h) by the substitution in subsection (4) for paragraph (a) of the following paragraph:

“(a) The Training Fund must be administered by the [Chief Executive Officer] Director-General.”;

(i) by the substitution in subsection (4) for paragraph (c) of the following paragraph:

“(c) The [Chief Executive Officer] Director-General 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.”;

(j) by the substitution in subsection (5)(b) for the words preceding subparagraph (i) of the following words:

“The [Chief Executive Officer] Director-General must—”;

(k) by the deletion of subsection (6); and

(l) by the substitution for subsections (7) and (8) of the following subsections, respectively:

“(7) The [Academy] Agency may in relation to training co-operate with any institution of higher learning, in the Republic or elsewhere, to achieve its objectives.

(8) The accreditation and recognition of the [Academy’s] Agency’s qualifications must be done in accordance with the provisions of the [South African Qualifications Authority Act, 1995 (Act No. 58 of 1995)] National Qualifications Framework Act, 2008 (Act No. 67 of 2008).”

Repeal of section 6 of Act 65 of 2002

18. Section 6 of the Intelligence Services Act, 2002, is hereby repealed.

Repeal of section 7 of Act 65 of 2002

19. Section 7 of the Intelligence Services Act, 2002, is hereby repealed.

Amendment of section 8 of Act 65 of 2002

20. Section 8 of the Intelligence Services Act, 2002, is hereby amended by the substitution in subsection (1) for paragraph (a) of the following paragraph:

“(a) appoint any person as a member of the [Intelligence Services or the Academy] Agency;”

Amendment of section 9 of Act 65 of 2002

21. Section 9 of the Intelligence Services Act, 2002, is hereby amended—

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(a) by the substitution for subsection (1) of the following subsection:

“(1) There is hereby established a Ministerial Advisory Committee on Training, which consists of—

(a) the head of the Academy;

(b) the deputy head of the Academy;

(d) not more than [8] eight other persons appointed by the Minister on the basis of necessity and required expertise.”; and

(b) by the substitution in subsection (7) for paragraph (b) of the following paragraph:

“(b) assist the [head and deputy head of the Academy] Director-General to develop a curriculum [and business plans for the Academy] and to make recommendations to the Minister in that regard.”.

Amendment of section 10 of Act 65 of 2002, as amended by section 9 of Act 52 of 2003

22. Section 10 of the Intelligence Services Act, 2002, is hereby amended—

(a) by the substitution for the heading of the following heading:

“[Heads of Intelligence Services and Academy] Head of Agency”;

(b) by the substitution for subsections (1) and (2) of the following subsections, respectively:

“(1) The Director-General [concerned or the Chief Executive Officer] must, subject to the directions of the Minister and this Act, exercise command and control of the [Intelligence Services or the Academy, as the case may be] Agency.

(2) The Director-General [concerned or the Chief Executive Officer, as the case may be,] may, in a prescribed manner and subject to the approval of the Minister and the provisions of this Act, issue functional directives applicable to—

(a) conditions of service and human resources of the [Intelligence Services or the Academy, as the case may be] Agency: Provided that such functional directives must be submitted to the [Intelligence Services] Council for consideration; and

(b) any other matter he or she may deem expedient for the efficient command and control of the [Intelligence Services or the Academy, as the case may be] Agency.”;

“The Director-General [concerned] may, in a prescribed manner, subject to the approval of the Minister and the provisions of this Act, issue functional directives applicable to—”;

(d) by the substitution in subsection (3) for paragraph (f) of the following paragraph:

“(f) any other matter that is necessary for the intelligence and counter-intelligence functions of the [Intelligence Services] Agency.”;

(e) by the substitution for subsection (4) of the following subsection:

“(4) The Director-General [concerned or the Chief Executive Officer] must, as far as is reasonably practicable, take steps to ensure that—

(a) national security intelligence, intelligence collection methods, sources of information and the identity of members of the [Intelligence Services or the Academy, as the case may be] Agency, are protected from unauthorised disclosure;

(b) neither the [Intelligence Services, the Academy,] Agency nor any of [their] its members[,] may, in the performance of their functions—

(i) prejudice a political party interest that is legitimate in terms of the Constitution; or

(ii) further, in a partisan manner, any interest of a political party; and

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(c) the powers of the [Intelligence Services or the Academy] Agency are limited to what is necessary for the purposes of the discharge of its functions in terms of the National Strategic Intelligence Act, 1994 (Act No. 39 of 1994), and the Secret Services Act, 1978 (Act No. 56 of 1978).”; and

(f) by the addition of the following subsection:

“(5) (a) The Director-General must at the end of each financial year submit to the Minister a report on the activities of the Agency for the relevant financial year, that must—

(i) include information about any co-operation by the Agency with an authority of another country in planning or undertaking activities pertaining to the Agency’s mandate; and

(ii) except for classified information, be publicly accessible.

(b) As soon as practicable after receipt of the report contemplated in paragraph (a), the Minister must table it in Parliament.”

Amendment of section 11 of Act 65 of 2002, as amended by section 10 of Act 52 of 2003

23. Section 11 of the Intelligence Services Act, 2002, is hereby amended—

(a) by the substitution in subsection (2) for paragraph (a) of the following paragraph:

“(a) there is on any premises information which has or could probably have a bearing on the functions of the [Intelligence Services] Agency as contemplated in section 2 of the National Strategic Intelligence Act, 1994 (Act No. 39 of 1994), which information is of substantial importance and is necessary for the proper discharge of the functions of the [Intelligence Services] Agency;”;

(b) by the substitution in subsection (2) for the words preceding subparagraph (i) of the following words:

“he or she may issue the [Intelligence Services] Agency with a direction authorising any member when reasonably necessary—”; and

“(b) A direction referred to in paragraph (a) may be executed by a member of the [Intelligence Services] Agency who is authorised to do so by a senior member of [such Intelligence Services] the Agency holding a post of at least a General Manager.”

Amendment of section 12 of Act 65 of 2002, as amended by section 11 of Act 52 of 2003

24. Section 12 of the Intelligence Services Act, 2002, is hereby amended—

(a) by the substitution for subsection (1) of the following subsection:

“(1) The Minister may, subject to this Act, do or cause to be done all things which are necessary for the efficient superintendence, control and functioning of the [Intelligence Services and the Academy] Agency.”;

(b) by the substitution in subsection (2) for paragraph (a) of the following paragraph:

“(a) acquire any immovable property, with or without any buildings thereon which is necessary for the efficient functioning of the [Intelligence Services or the Academy, and erect and maintain any buildings on the property so acquired] Agency and, subject to section 70 of the Public Finance Management Act, 1999 (Act No. 1 of 1999), supply guarantees, indemnities and securities for [those purposes] that purpose;”;

“(aA) erect or maintain buildings on the property so acquired;”; and

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(d) by the substitution in subsection (2) for paragraph (c) of the following paragraph:

“(c) acquire, hire or utilise any movable property and any other equipment which may be necessary for the efficient functioning of the [Intelligence Services or the Academy] Agency:”.

Amendment of section 13 of Act 65 of 2002

25. Section 13 of the Intelligence Services Act, 2002, is hereby amended—

(a) by the substitution for subsection (1) of the following subsection:

“(1) A member must be retired on the date when he or she attains the age of 60 years: Provided that a person who was an employee of the [Intelligence Services] former National Intelligence Agency or the South African Secret Service on the day immediately before the date of commencement of this Act may retire on reaching the retirement age or prescribed retirement date provided for in any other law applicable to him or her on that day.”; and

(b) by the addition of the following subsection:

“(4) Notwithstanding subsection (1), a member shall have the right to retire from the Agency on the date on which he or she attains the age of 55 years, or on any date after that date.”.

Amendment of section 14 of Act 65 of 2002, as amended by section 12 of Act 52 of 2003

26. Section 14 of the Intelligence Services Act, 2002, is hereby amended—

(a) by the substitution for the heading of the following heading:

“[Security screening] Vetting and discharge of members”;

(b) by the substitution in subsection (1) for paragraph (a) of the following paragraph:

“(a) information with respect to that person has been gathered in the prescribed manner in a [security screening] vetting investigation by the [Intelligence Services] Agency; and”;

“In order to gather the information contemplated in subsection (1)(a), the [Intelligence Services] Agency may, in a prescribed manner, have access to—”;

(d) by the substitution in subsection (2) for the proviso of the following proviso:

“Provided that where the gathering of information contemplated in paragraphs (c) and (d) requires the interception and monitoring of the communication of such a person, the [Intelligence Services] Agency must perform this function in accordance with the Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002 (Act No. 70 of 2002).”;

(e) by the substitution for subsection (6) of the following subsection:

“(6) Notwithstanding the provisions of subsection (5), if the Minister is of the reasonable opinion that a person may be appointed as a member without the possibility that such a person might be a security risk or might act in a way prejudicial to the security interests of the Republic, he or she may issue a document with respect to such a person in which it is stipulated that such a person may be appointed as a member without the possibility that such a person could be a security risk or could possibly act in any manner prejudicial to the security interests of the Republic, pending the outcome of the [security screening] vetting investigations.”;

(f) by the substitution in subsection (7) for the words preceding paragraph (a) of the following words:

“If the certificate referred to in subsection (5) is withdrawn, the member concerned is deemed unfit for further membership of the [Intelligence Services or the Academy, as the case may be] Agency, and the Minister may—”;

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(g) by the substitution in subsection (7) for paragraph (a) of the following paragraph:

“(a) discharge such person or member from the [Intelligence Services or the Academy, as the case may be] Agency; or”; and

(h) by the substitution for subsections (9) and (10) of the following subsections respectively:

“(9) On intervals prescribed by the Minister, a member may be subjected to a [security screening] vetting investigation to determine his or her security competence to remain in the [Intelligence Services] Agency.

(10) All the provisions regarding [security screening] vetting investigations, applicable to a person contemplated in subsection (1), shall apply to the [security screening] vetting of a member contemplated in subsection (9).”

Substitution of section 15 of Act 65 of 2002

27. The following section is hereby substituted for section 15 of the Intelligence Services Act, 2002:

“Discharge of members on account of long absence without leave

15. (1) Any member who absents himself or herself, whether voluntarily or involuntarily, from his or her official duties without the permission of the Director-General [concerned or the Chief Executive Officer, as the case may be,] for a period exceeding [14] 10 consecutive working days, is deemed to have been discharged from the [Intelligence Services or the Academy, as the case may be,] Agency on account of misconduct, with effect from the date immediately following upon the last day on which he or she was present at his or her place of duty: Provided that if—

(a) any member absents himself or herself from his or her official duties without such permission and accepts other employment, he or she is deemed to have been discharged even if he or she has not yet absented himself or herself for a period of [14] 10 consecutive working days;

(b) a member deemed to have been so discharged again reports for duty, the Director-General [concerned or the Chief Executive Officer, as the case may be,] may, on good cause shown and notwithstanding anything to the contrary contained in any law but subject to the approval of the Minister, reinstate the member in his or her former post or appoint him or her to any other post in the [Intelligence Services or the Academy, as the case may be] Agency, on such conditions as the Director-General [concerned or the Chief Executive Officer, as the case may be,] may deem fit and in that event the period of his or her absence from his or her official duties is deemed to have been absent on vacation leave without pay, or leave on such other conditions as the Director-General [concerned or the Chief Executive Officer, as the case may be,] may determine;

(c) the Director-General [concerned or the Chief Executive Officer, as the case may be,] refuses to reinstate the member, the latter may appeal to the Minister, stating the reasons why he or she should be reinstated.

(2) The Minister may in the prescribed manner, for the purposes of any appeal lodged in terms of subsection (1)(c), establish an advisory panel to assist him or her in considering the appeal.”

Substitution of section 16 of Act 65 of 2002

28. The following section is hereby substituted for section 16 of the Intelligence Services Act, 2002:

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"Discharge of members on account of ill-health"

16. (1) Any member may be discharged from the [Intelligence Services or the Academy, as the case may be,] Agency by the Director-General [concerned or 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] the Director-General [or the Chief Executive Officer, as the case may be,] is of the opinion that the member is by reason of ill-health unfit to remain in the [Intelligence Services or the Academy, as the case may be] Agency.

(2) Any member discharged from the [Intelligence Services or the Academy] Agency 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.

(3) The Minister may in the prescribed manner, for the purposes of any appeal lodged in terms of subsection (2), establish an advisory panel to assist him or her in considering the appeal."

Amendment of section 17 of Act 65 of 2002

29. The following section is hereby substituted for section 17 of the Intelligence Services Act, 2002:

"Discharge or demotion of members on account of poor performance"

17. (1) A member may be discharged from the [Intelligence Services or the Academy] Agency or demoted by the Director-General [concerned or the Chief Executive Officer, as the case may be,] if, after a hearing in the prescribed manner as to his or her fitness to remain in employment or to retain his or her rank or grade, [such] the Director-General [or the Chief Executive Officer, as the case may be,] is of the opinion that such member is incapable of performing his or her duties efficiently.

(2) A member who has been discharged from the [Intelligence Services or the Academy] Agency or demoted 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 or demotion, as the case may be.

(3) The Minister may in the prescribed manner, for the purposes of any appeal lodged in terms of subsection (2), establish an advisory panel to assist him or her in considering the appeal."

Amendment of section 18 of Act 65 of 2002

30. Section 18 of the Intelligence Services Act, 2002, is hereby amended—

(a) by the substitution for subsections (2) and (3) of the following subsections, respectively:

“(2) A member may be discharged from the [Intelligence Services or the Academy] Agency or demoted by the Director-General [concerned or the Chief Executive Officer, as the case may be,] if, after [an inquiry] a hearing in the prescribed manner as to his or her fitness to remain in employment or to retain his or her rank or grade, [such] the Director-General [or the Chief Executive Officer, as the case may be,] is of the opinion that such member is guilty of misconduct.

(3) A member who has been discharged from the [Intelligence Services or the Academy] Agency or demoted in terms of subsection (2) may in the prescribed manner appeal to the Minister, who may thereupon set aside or confirm his or her discharge or demotion, as the case may be.”; and

(b) by the addition of the following subsection:

“(4) The Minister may in the prescribed manner, for the purposes of any appeal lodged in terms of subsection (3), establish an advisory panel to assist him or her in considering the appeal.”

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Amendment of section 19 of Act 65 of 2002

31. Section 19 of the Intelligence Services Act, 2002, is hereby amended—

(a) by the substitution in subsection (1)(a) for subparagraph (i) of the following subparagraph:

“(i) in the [Intelligence Services or the Academy] Agency;”;

(b) by the substitution in subsection (1)(a) for item (cc) of the proviso of the following item:

“(cc) a member may not without his or her consent be transferred to a post outside the [Intelligence Services or the Academy] Agency if such transfer will, save for his or her salary, result in a change in his or her conditions of service;”;

“(b) discharge any member from the [Intelligence Services or the Academy] Agency on such conditions as the Minister may determine.”; and

(d) by the substitution for subsection (2) of the following subsection:

“(2) The Minister may, with the consent of a member and upon such conditions as the Minister 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 Intelligence Services or the Academy] or to any other authority, board, entity, establishment, institution or body, but, while so seconded, the member remains subject to this Act and any other law which applies to him or her.”.

Substitution of section 20 of Act 65 of 2002, as amended by section 13 of Act 52 of 2003

32. The following section is hereby substituted for section 20 of the Intelligence Services Act, 2002:

“Delegation of powers

20. (1) The Minister may in writing and on such conditions as he or she may deem fit delegate any power conferred upon or duty assigned to him or her by this Act, excluding any power conferred upon or duty assigned to him or her by sections 4(1)(a) and (b), 5(1), (2)(a) and (4)(c), [6(2),] 9(3), (4), (5), (8) and (9), 10(1), (2) and (3), 12(1) and (2)(a) and (b), 13(3), 14(6), (7), (8), (9) and (11), 15(b) and (c), 16(2), 17(2), 18(3), 19(4), 21(2), 22(1), (5) and (7), 23(3)(a)(i) and (ii), 28(2), 30 and 37, to the Director-General [concerned, the Chief Executive Officer] or any other member of the [Intelligence Services or the Academy, as the case may be] Agency.

(2) [A] The Director-General [or the Chief Executive Officer] may delegate any power conferred upon or duty assigned to him or her by or under this Act to any other member of the [Intelligence Services or the Academy, as the case may be] Agency, but not any power or duty delegated under subsection (1).”

Amendment of section 21 of Act 65 of 2002

33. Section 21 of the Intelligence Services Act, 2002, is hereby amended by the substitution for subsections (1) and (2) of the following subsections, respectively:

“(1) No member of the [Intelligence Services or the Academy] Agency may strike or induce or conspire with any other member or person to strike.

(2) 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] Agency.”

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Substitution of section 22 of Act 65 of 2002, as amended by section 14 of Act 52 of 2003

34. The following section is hereby substituted for section 22 of the Intelligence Services Act, 2002:

“Establishment of Intelligence [Services] Council on Conditions of Service

22. (1) There is hereby established an Intelligence [Services] Council on Conditions of Service which consists of not more than three persons [or members] appointed on contract by the Minister, one of whom must be Chairperson.

(2) The [members] persons contemplated in subsection (1) must be fit and proper persons [with a thorough knowledge of the functioning of the Intelligence Services] to fulfil the functions referred to in subsection (3).

(3) The functions of the [Intelligence Services] Council are—

(a) to make recommendations to the Minister on the development of policies on conditions of service and human resource matters;

(b) to make recommendations to the Minister on improvements of salaries and fringe benefits of members on an annual basis;

(bA) to promote measures and set standards to ensure the effective and efficient performance and implementation of policies on human resources within the [Academy or the Intelligence Services, as the case may be] Agency, and to make recommendations to the Minister;

(i) to conduct research;

(ii) to review such policies;

(iii) to evaluate and monitor the implementation of such policies;

(iv) to invite the [Directors-General, the Chief Executive Officer] Director-General, the Chairpersons of the staff forum, members and any other interested party to give representations on any matter relating to the purview of its functions;

(v) to evaluate representations contemplated in subparagraph (iv);

(vi) to confer with the Public Service Commission.

(4) The Chairperson may co-opt [a] the Director-General [or the Chief Executive Officer] to participate in the functioning of the [Intelligence Services] Council: Provided that [such] the Director-General [or the Chief Executive Officer] does not have voting powers.

(5) The conditions of service of the members of the [Intelligence Services] Council may be determined by the Minister in accordance with the conditions of service applicable to members.

(6) The [Intelligence Services] Council must perform its functions impartially, without bias, fear or prejudice.

(7) The Minister may appoint members or persons to give research, administrative, logistical and technical support to the [Intelligence Services] Council.

(8) The [Intelligence Services] Council—

(a) is accountable to the Minister; and

(b) must at the end of each financial year submit a report on its activities and findings to the Minister.

(9) (a) The Minister must submit the report referred to in subsection 50 (8)(b) to the Joint Standing Committee on Intelligence and to the Minister for the Public Service and Administration.

(b) The report must not contain confidential information that would be detrimental to national security.”

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Amendment of section 23 of Act 65 of 2002

35. Section 23 of the Intelligence Services Act, 2002, is hereby amended by the substitution for subsection (3) of the following subsection:

“(3) (a) Where a member receives any remuneration, allowance or other reward in connection with the performance of his or her work, otherwise than in accordance with this Act or in contravention of subsection (1)(b), such member must pay to the [Intelligence Services or the Academy, as the case may be,] Agency an amount equal to the amount of such remuneration, allowance or reward or, where it does not consist of money, the value thereof as determined by the Director-General [concerned or the Chief Executive Officer, as the case may be], and if he or she does not do so, [such] the Director-General [or the Chief Executive Officer] may recover it from him or her by way of legal proceedings: Provided that—

(i) the member has a right of appeal to the Minister against the determination by the Director-General [concerned or the Chief Executive Officer] of the value of the remuneration, allowance or reward;

(ii) the Minister may approve the retaining by a member of the whole or a portion of that remuneration, allowance or reward.

(b) Where a member has received any remuneration, allowance or other reward as contemplated in paragraph (a) which is still in his or her possession or under his or her control or in the possession or under the control of some other person on his of her behalf or, if it is money, has been deposited in any bank or other financial institution in his or her name or in the name of some other person on his or her behalf, the Director-General [concerned or Chief Executive Officer, as the case may be,] may in writing require such member or such other person or such bank or financial institution not to dispose thereof, or, if it is money, to retain a corresponding sum of money, as the case may be, pending the outcome of any legal proceedings for the recovery of such remuneration, allowance or reward or the value thereof.”

Substitution of section 24 of Act 65 of 2002

36. The following section is hereby substituted for section 24 of the Intelligence Services Act, 2002:

“Reward for extraordinary diligence or devotion

24. The Director-General [concerned or the Chief Executive Officer, as the case may be,] may, with the approval of the Minister, award to any person who is or was a member, for extraordinary diligence or devotion in the performance of his or her duties as a member, such monetary or other reward as he or she considers appropriate in the circumstances.”

Substitution of section 25 of Act 65 of 2002

37. The following section is hereby substituted for section 25 of the Intelligence Services Act, 2002:

“Establishment of decorations and medals for members

25. (1) The Minister may establish and introduce decorations and medals, as well as bars, clasps and ribbons in respect of such decorations and medals, which may be awarded by him or her, subject to such conditions as may be prescribed, to any person who is or was a member in respect of his or her services as a member or to any other person who has rendered exceptional services to the [Intelligence Services or the Academy] Agency.

(2) The medals contemplated in subsection (1) must be registered with the Bureau of Heraldry in terms of the Heraldry Act, 1962 (Act No. 18 of 1962), and in the prescribed manner.”

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Amendment of section 26 of Act 65 of 2002, as amended by section 15 of Act 52 of 2003

38. Section 26 of the Intelligence Services Act, 2002, is hereby amended—

(a) by the substitution in subsection (1)(a) for subparagraph (iii) of the following subparagraph:

“(iii) discloses classified information or material entrusted to him or her by the Director-General[, the Chief Executive Officer] or a member without the permission of the Director-General [or the Chief Executive Officer, as the case may be].”

(b) by the substitution in subsection (1) for paragraphs (c) and (d) of the following paragraphs, respectively:

“(c) not being the person to whom a decoration or medal was awarded, wears it or, without the written permission of the Director-General [concerned or the Chief Executive Officer, as the case may be], makes use of any decoration or medal established or introduced under this Act, or of its bar, clasp or ribbon, or anything so closely resembling any such decoration, medal, bar, clasp or ribbon as to be calculated to deceive;

(d) without the approval of the Minister, in connection with any activity carried on by him or her, takes, assumes, uses or in any manner publishes any name, description, title or symbol that indicates or conveys or purports to indicate or which is likely to lead other persons to believe or infer that such activity is carried on under or by virtue of this Act or under the patronage of the [Intelligence Services or the Academy] Agency or is in any manner associated or connected with the [Intelligence Services or the Academy] Agency;”

“(i) discloses classified information or material without the permission of the Director-General [concerned or the Chief Executive Officer];” and

(d) by the substitution in subsection (1) for paragraph (g) of the following paragraph:

“(g) being a member, discloses classified information or material to an unauthorised person without the permission of the Director-General [concerned or the Chief Executive Officer, as the case may be].”

Amendment of section 27 of Act 65 of 2002

39. Section 27 of the Intelligence Services Act, 2002, is hereby amended by the substitution for subsections (1), (2) and (3) of the following subsections, respectively:

“(1) Subject to section (10)(3)(a), a former member may not disclose in any form or any manner any information or material to any other person unless the Director-General [concerned or the Chief Executive Officer, as the case may be,] has granted permission for the disclosure of such information or material.

(2) 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] Agency or with the former National Intelligence Agency, the South African Secret Service or the South African Academy of Intelligence, that was marked as classified or that the former member knew or ought reasonably to have known was classified.

(3) For the purposes of subsection (1), the Director-General [concerned or the Chief Executive Officer] may consult any member or person to advise him or her

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on the consideration of applications by former members for permission to disclose classified information or material.”.

Amendment of section 28 of Act 65 of 2002

40. Section 28 of the Intelligence Services Act, 2002, is hereby amended by the substitution for subsection (1) of the following subsection:

“(1) A former member may not, for a period of three years after leaving the [Intelligence Services or the Academy] Agency, render a security service unless he or she has obtained a clearance certificate from the Director-General [concerned or the Chief Executive Officer, as the case may be].”

Amendment of section 29 of Act 65 of 2002

41. Section 29 of the Intelligence Services Act, 2002, is hereby amended by the substitution for paragraphs (a) and (b) of the following paragraphs, respectively:

“(a) who is or was a member, representative or associate of the [Intelligence Services or the Academy] Agency or of the former National Intelligence Agency, the South African Secret Service or the South African Academy of Intelligence or a foreign intelligence service;

(b) who co-operates or who has co-operated with the [Intelligence Services or the Academy] Agency or with the former National Intelligence Agency, the South African Secret Service or the South African Academy of Intelligence in respect of matters concerning the security of the Republic.”

Amendment of section 30 of Act 65 of 2002

42. Section 30 of the Intelligence Services Act, 2002, is hereby amended by the substitution for subsection (1) of the following subsection:

“(1) A former member may appeal to the Minister against a decision of the Director-General [concerned or the Chief Executive Officer] in terms of section 27(1) or 28(1).”

Substitution of section 31 of Act 65 of 2002

43. The following section is hereby substituted for section 31 of the Intelligence Services Act, 2002:

“Conduct of former members

31. The Minister may prescribe the manner in which former members must conduct themselves in order to protect the security of the Republic and the interests of the [Intelligence Services and the Academy] Agency.”

Amendment of section 33 of Act 65 of 2002

44. Section 33 of the Intelligence Services Act, 2002, is hereby amended by the substitution for subsection (1) of the following subsection:

“(1) The Minister may by notice in the Gazette and in any other appropriate manner prohibit or restrict access to any premises under the control of the [Intelligence Services or the Academy] Agency.”

Amendment of section 34 of Act 65 of 2002

45. Section 34 of the Intelligence Services Act, 2002, is hereby amended—

(a) by the substitution for subsection (1) of the following subsection:

“(1) Notwithstanding anything to the contrary contained in any other law, the Minister may establish canteens for the [Intelligence Services or the Academy] Agency and for the organisational components thereof.”; and

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(b) by the substitution for subsection (3) of the following subsection:

“(3) For the purposes of this section ‘canteen’ includes any mess, pub or institution of the [Intelligence Services or the Academy, as the case may be] Agency, or any premises temporarily or permanently used for providing recreation, refreshments or necessities mainly for members or retired members or for the families of such members or retired members or for persons employed in any work in or in connection with any such mess, pub, institution or premises.”.

Amendment of section 35 of Act 65 of 2002

46. Section 35 of the Intelligence Services Act, 2002, is hereby amended—

(a) by the substitution for subsection (1) of the following subsection:

“(1) If a member is missing and the Director-General [concerned or the Chief Executive Officer, as the case may be,] is satisfied that his or her absence arose from the performance of his or her functions in terms of this Act, such member shall for all purposes be deemed to be still employed by the [Intelligence Services or the Academy, as the case may be,] Agency 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.”; and

(b) by the substitution for subsection (4) of the following subsection:

“(4) Notwithstanding subsection (2), the Director-General [concerned or the Chief Executive Officer] may in the 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.”.

Amendment of section 36 of Act 65 of 2002

47. Section 36 of the Intelligence Services Act, 2002, is hereby amended by the substitution for subsection (1) of the following subsection:

“(1) The Minister may, in the event of war or when a state of emergency exists and having regard to the requirements of the [Intelligence Services or the Academy] Agency, second any member for service or training in the South African National Defence Force or the South African Police Service.”.

Amendment of section 37 of Act 65 of 2002, as amended by section 16 of Act 52 of 2003

48. Section 37 of the Intelligence Services Act, 2002, is hereby amended—

(a) by the substitution in subsection (1) for paragraph (d) of the following paragraph:

“(d) the numerical establishment of the [Intelligence Services and the Academy] Agency, the conditions of service of the members thereof, the salaries, salary scales, wages and allowances of members and the systems relating to the administration and determination thereof and the various divisions, branches, grades, ranks and designations in the [Academy or the Intelligence Services] Agency;”;

(b) by the substitution in subsection (1) for paragraph (f) of the following paragraph:

“(f) all matters relating to discipline, command and control of members of the [Intelligence Services and the Academy] Agency, the suspension of members and the establishment of boards of inquiry into the conduct and discipline of members;”;

“(l) the retention of rank on retirement or resignation from the [Academy or the Intelligence Services] Agency, and the award of honorary ranks;

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GOVERNMENT GAZETTE, 23 July 2013

Act No. 11 of 2013

GENERAL INTELLIGENCE LAWS AMENDMENT ACT, 2013

(m) the control over and administration of funds appropriated to the [Academy or the Intelligence Services] Agency in order to bring about the systematic and orderly management thereof and to promote efficiency and economy in the utilisation thereof;";

(d) by the substitution in subsection (1) for paragraphs (o), (p) and (q) of the following paragraphs, respectively:

“(o) the conditions for and procedures regarding the permission of access to any premises under the control of the [Intelligence Services or the Academy, as the case may be] Agency, and matters relating thereto;

(p) any matter relating to the information, communications, computer and physical security of the [Intelligence Services and the Academy] Agency;

(q) the functioning of the [Intelligence Services] Council;”;

(e) by the substitution in subsection (1) for paragraph (s) of the following paragraph:

“(s) [security screening] vetting investigations of members and persons to be employed in the [Intelligence Services or the Academy, as the case may be] Agency;”; and

(f) by the insertion in subsection (1) after paragraph (s) of the following paragraphs:

“(sA) the establishment, structure and functions of a civilian intelligence veterans association;

(sB) the election, representation and functions of the staff forum;

(sC) the supply of intelligence to the Minister;

(sD) the supply of departmental intelligence to government departments;

(sE) persons authorised to task the Agency to gather and produce intelligence;”.

Amendment of section 38 of Act 65 of 2002

49. Section 38 of the Intelligence Services Act, 2002, is hereby amended—

(a) by the substitution for subsection (1) of the following subsection:

“(1) The rights in respect of all discoveries and inventions and all improvements in respect of processes, apparatus and machinery made by a member resulting from research undertaken by such member in the course of his or her employment as a member vest in the [Intelligence Services or the Academy, as the case may be] Agency.”; and

(b) by the substitution for subsections (3) and (4) of the following subsections, respectively:

“(3) If the rights in respect of any discovery, invention or improvement vest in the [Intelligence Services or the Academy] Agency in terms of subsection (1), 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 extent as the Minister may determine with the concurrence of the Minister of Finance.

(4) The Minister may apply for a patent in the name of the [Intelligence Services or the Academy, as the case may be,] Agency in respect of any discovery, invention or improvement referred to in subsection (1), and the [Intelligence Services or the Academy, as the case may be,] Agency must for the purposes of the Patents Act, 1978 (Act 57 of 1978), be regarded as the assignee of the discoverer or inventor concerned.”

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GOVERNMENT GAZETTE, 23 July 2013

Act No. 11 of 2013

GENERAL INTELLIGENCE LAWS AMENDMENT ACT, 2013

Substitution of section 40 of Act 65 of 2002

50. The following section is hereby substituted for section 40 of the Intelligence Services Act, 2002:

"Repeal of laws, transitional provisions and savings"

40. (1) The laws specified in the Schedule are hereby repealed to the extent indicated in the third column thereof.

(2) All assets, liabilities, rights and duties, including funds, resources and administrative records of the former National Intelligence Agency, South African Secret Service, South African National Academy of Intelligence and Electronic Communications Security (Pty) Ltd (hereinafter referred to as Comsec) must be transferred to the Agency within six months after the commencement of the General Intelligence Laws Amendment Act, 2013, and vest from the date of transferral in, and must from that date be regarded as having been acquired or incurred by, the Agency.

(3) (a) Notwithstanding subsection (2) and section 3(1A), as from a date determined by the Minister by notice in the Gazette, Comsec ceases to exist as a juristic person and must for the purposes of the Companies Act, 2008 (Act No. 71 of 2008), be regarded as having been wound up.

(b) The Companies and Intellectual Property Commission must, upon receipt of a notification by the Director-General of the date contemplated in paragraph (a), deregister Comsec as a company in terms of the Companies Act, 2008 (Act No. 71 of 2008), with effect from the said date.

(4) (a) A registrar of deeds must, upon the production to him or her of a certificate by the Minister that immovable property described in the certificate vests in the Agency in terms of subsection (2), make such entries and endorsements as he or she may deem necessary in or on any relevant register, title deed or other document in his or her office, so as to give effect to subsection (2).

(b) No duty, office fee or other charge is payable in respect of any entry or endorsement in terms of paragraph (a).

(5) If an inquiry into alleged misconduct has been instituted by an entity referred to in subsection (2) but not yet concluded at the commencement of the General Intelligence Laws Amendment Act, 2013, such proceedings must be continued and concluded in accordance with the law in terms of which the inquiry was instituted.

(6) Disciplinary proceedings may be instituted and concluded in terms of this Act against alleged improper conduct of any person who at any time prior to the commencement of the General Intelligence Laws Amendment Act, 2013, was in the service of an entity referred to in subsection (2), provided that the act or omission concerned is substantially the same as an act constituting misconduct in terms of this Act.

(7) Any regulation made under section 22 of the Electronic Communications Security (Pty) Ltd Act, 2002 (Act No. 68 of 2002), shall remain in force for a period of six months after the date of commencement of this Act unless it is inconsistent with this Act.

(8) (a) Any employee of Comsec, appointed in terms of section 14(1) of the Electronic Communications Security (Pty) Ltd Act, 2002 (Act No. 68 of 2002), must be transferred to the Agency on terms and conditions which may not be less favourable than the remuneration and terms and conditions applicable to that person immediately before his or her transfer and he or she remains entitled to all rights, benefits, including pension benefits, and privileges to which he or she was entitled immediately before such transfer.

General Intelligence Laws Amendment Act 11 of 2013

Relationships in

Relationships out

Linked legislation

Document

Government Gazette

REPUBLIC OF SOUTH AFRICA

THE PRESIDENCY

GENERAL EXPLANATORY NOTE:

ACT

Amendment of section 3 of Act 39 of 1994, as amended by section 3 of Act 37 of 1998

Substitution of section 15 of Act 65 of 2002

“Discharge of members on account of long absence without leave

Substitution of section 16 of Act 65 of 2002

"Discharge of members on account of ill-health"

Amendment of section 17 of Act 65 of 2002

"Discharge or demotion of members on account of poor performance"

Amendment of section 18 of Act 65 of 2002

Amendment of section 28 of Act 65 of 2002

Amendment of section 29 of Act 65 of 2002

Amendment of section 30 of Act 65 of 2002

Substitution of section 31 of Act 65 of 2002

“Conduct of former members

Amendment of section 33 of Act 65 of 2002

Amendment of section 34 of Act 65 of 2002

Amendment of section 35 of Act 65 of 2002

Amendment of section 36 of Act 65 of 2002

Amendment of section 37 of Act 65 of 2002, as amended by section 16 of Act 52 of 2003

Substitution of section 40 of Act 65 of 2002

"Repeal of laws, transitional provisions and savings"

Substitution of Schedule to Act 65 of 2002

SCHEDULE

LAWS REPEALED

Substitution of long title of Act 65 of 2002

Amendment of laws

Short title and commencement

SCHEDULE 1

LAWS AMENDED