National Strategic Intelligence Amendment Act [No. 67 of 2002]
REPUBLIC OF SOUTH AFRICA
Vol. 452 Cape Town 13 February 2003 No. 24391
THE PRESIDENCY No. 237 13 February 2003 It is hereby notified that the President has
assented to the following Act, which is hereby published for general information:–
No. 67 of 2002: National Strategic Intelligence Amendment Act, 2002.
1 N o . 24391 GOVERNMENT GAZETTE, 13 FEBRUARY 2003
Act No. 67.2002 NATIONAL STRATEGIC INTELLIGENCE AMENDMENT ACT. 2001
GENERAL EXPLANATORY NOTE:
t ] Words in bold type in square b ackets indicate omissions from existing enactments. Words underlined with a solid line indicate insertions in existing enactments.
(English text signed b!. the President.) (Assented lo 30 January 2003.)
ACT To amend the National Strategic Intelligence Act, 1994. so as to exclude the
Y - Minister as a member of Nicoc; to redefine counter-intelligence; to provide for securit? screening by the relevant members of the national intelligence structures; to further define the functions of the Minister pertaining to co-ordination of intelligence: and to regulate the functions of the National Intelligence Structures; and to provide for matters connected therewith.
B E IT ENACTED bJZ the Parliament of the Republic of South Africa, as follows:- .4mendment of section 1 ofAct 39 of 1994, as amended by section 1 ofAct 37 of 1998 and section 24 of Act 66 of 2000
1. Section 1 of the National Strategic Intelligence Act. 1994 (hereinafter referred to as 5 the principal ,4ct). is herebj. amended-
by the substitution for the definition of “counter-intelligence” of the following definition:
’counter-intelligence‘ means measures and activities conducted, insti- tuted or taken to impede and to neutralise the effectiveness of foreign or 10 hostile intelligence operations. to protect [classified] intelligence an!’ classified information. to conduct security screening investigations and to counter subversion, treason. sabotage and terrorism aimed at or against personnel. strategic installations or resources of the Republic;”: and 15
( 1 7 ; b!. the insertion after the definition of “regulation” of the following definition: .. ’relevant members of the National Intelligence Structures’ means- ( a ) :he intelligence division of the National Defence Force; ( b i the intelligence division of the South African Police Service; (c) the Agency; and 20 ( d / the Service:”; and
( C I by the insertion after the definition of “South African Police Service” of the
‘. ‘subversion‘ means any activity intended to destroy or undermine the constitutionally established system of government in the Republic of 25 South Africa:”.
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GOVERNMENT GAZE’ITE, 13 FEBRUARY 2003
Act No. 67, 2002 NATIONAL STRATEGIC INTELLIGENCE AMENDMENT ACT. 2002
Amendment of section 2 of Act 39 of 1994, as amended by section 2 of Act 37 of 1998
2. Section 2 of the principal Act is hereby amended- (a) by the addition to subsection (1)fb) of the following subparagraphs:
“(iv) supply intelligence relating to any such threat to the Department of Home Affairs for the purposes of fulfilment of any immigration 5 function; and
c ( v ) supply intelligence relating to national strategic intelligence to
(b) by the substitution for subparagraphs ( a ) and (b) of subsection ( 3 ) of the following subparagraphs: 10
“ ( a ) to gather. correlate. evaluate. co-ordinate and use crime intelligence in support of the objects of the South African Police Service as contemplated in section 205(3) of the Constitution:
Ih) to institute counter-intelligence measures within the South African Police Service:“; and 15
(c) b! the addition to subsection (3) of the following paragraph: “(c) to supply crime intelligence relating to national strategic intelli-
gence to Nicoc.”.
Insertion of section 2A in Act 39 of 1991
3. The following section is hereby inserted in the principal Act after section 2: 20
“Security screening investigations
2A. (1) The relevant members of the National Intelligence Structures may conduct a security screening investigation to determine the security competence of a person if such a person- (a ) is employed by or is an applicant to an organ of state: or lbi is rendering a service or has given notice of intention to render a
service to an organ of state. which service may- (i) give him or her access to classified information and intelligence
in the possession of the organ of state: or (ii) give him or her access to areas designated national key points in
terms of the National Key Points Act, 1980 (Act No. 102 of 1980).
( 2 ) The Agency shall be responsible for security screening 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 Senice or the Department of Defence.
( 3 ) Notwithstanding the provisions of subsection (2). the Agency may request the assistance of the South African Police Service or the National Defence Force in the performance of the function contemplated in subsection (2).
(4) (a) In performing the security screening investigation contemplated ia subsection ( l ) , the relevant members of the National Intelligence Structures may use a polygraph to determine the reliability of information gathered during the investigation.
(b) For the purpose of this section, “polygraph” means an instrument used to ascertain, confirm or examine in a scientific manner the truthfulness of a statement made by a person.
( 5 ) The relevant members of the National Intelligence Structures may, in the prescribed manner, gather information relating t+- (a) criminal records; (b) financial records; (c) personal information; or (d) any other information which is relevant to determine the security
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 relevant members shall perform this
clearance of a person:
6 No. 24391 GOVERNMENT GAZETTE. 13 FEBRUARY 2003
Act No. 67.2002 NATIONAL STRATEGIC INTELLIGENCE AMENDMENT ACT, 2002
function in accordance with the provikions of the Interception and Monitoring Prohibition Act, 1992 (Act No. 127 of 1992).
(6) The head of the relevant National Intelligence Structure may, after evaluating the information gathered during the security screening investi- gation, issue. degrade, withdraw or refuse to grant a security clearance.
(7) The head of the relevant National Intelligence Structure may establish a security screening Advisory Board comprising of members or employees of the relevant National Intelligence Structure to assist him or her in the determination of the security competency of a person.
(8) ( a ) A person whose security clearance has been refused, withdrawn or degraded may in the prescribed manner appeal to the Minister responsible for the relevant National Intelligence Structure.
( i ) be lodged within 60 days from the date on which the decision was made known by the head of the relevant National Intelligence Structure or such later date as the Minister permits: and
(17 ) Such appeal shall-
( i i ) set out the grounds for the appeal. ( r ) After considering the grounds of appeal and the head of the relevant
National Intelligence Structure’s reasons for the decision, the Minister responsible for the relevant National Intelligence Structure shall as soon as practicable- ( i ) confirm, set aside or vary the decision; or
(ii) substitute any other decision for the decision of the relevant National
(9) The Director-General of the Agency may in the prescribed manner Intelligence Structure.
issue functional directives on- ( a ) usage and application of polygraph; ( h i criteria for determining security competence; and (c) levels of security clearance.
( I O ) The directives contemplated in subsection (9) shall be issued with the approval of the Minister, who shall act in consultation with the Minister of Safety and Security and the Minister of Defence, and shall apply to all the relevant National Intelligence Structures.”.
Amendment of section 4 of Act 39 of 1994, as amended by section 37 of Act 37 of Act 37 of 1998 and section 25 of Act 66 of 2000 35
4. Section 4 of the principal Act is hereby amended by the deletion of paragraph (a ) of subsection ( 1 ).
Amendment of section 5 of Act 39 of 1994, as amended by section 5 of Act 37 of 1998
5. Section 5 of the principal Act is hereby amended by the deletion of paragraph (b) of subsection ( 1 ). 40
Amendment of section 5A of Act 39 of 1994, as inserted by section 5 of Act 37 of 1998
6. Section 5A of the principal Act is hereby amended by the substitution for subsection (3) of the following subsections:
“ ( 3 ) Subject to subsection ( 2 ) . the Minister may. for the purposes of the 45 functions contemplated in subsection ( l ) , establish such support structures as are necessary- ( u ) for the efficient co-ordination of intelligence; and ( h ) to assist the Minister to advise the President and the national executive.
Co-ordinator for Intelligence.
strate,yic intelligence and co-ordination of intelligence.”.
(4) The Minister may delegate. the function contemplated in subsection (3) to the
( 5 ) The Minister shall advise the President and the national executive on national
Substitution of section 6 of Act 39 of 1994, as amended by section 7 of Act 37 of 1998 and section 26 of Act 66 of 2000 55
7. The following section is hereby substituted for section 6 of the principal Act:
X No. 34391 GOVERNMENT GAZETTE, 13 FEBRUARY 2003
.4ct No. 67, 2002 NATIONAL STRATEGIC INTELLIGENCE AMENDMENT ACT, 2002
6 . ( I ) The Minister may. after consultation with the Joint Standing Committee on Intelligence, subject to subsection (2), make regulations regarding- f u ) the protection of information and intelligence; (h) the carrying out of security screening investigations by members of
(c) co-ordination of intelligence as an activity; (d ) production and dissemination of intelligence for consideration by
l e ) the co-ordination of counter-intelligence by the Agency; If) the co-ordination of crime intelligence; and (g) any other matter necessary for the effective administration of this Act.
(2) Any regulation which may affect a function of the National Defence Force or the South African Police Service shall be made in consultation with the Minister responsible for that Force or Service, as the case may be.
(3) A security screening investigation contemplated in subsection (l)(b) may entitle the relevant members of the National Intelligence Structures concerned to subject the person undergoing a security screening investiga- tion to a polygraph examination as prescribed, in order to determine the reliability of information provided by him or her.
(3) A regulation made under this Act may not be published in the Gazette, but where such a regulation only affects the members of the National Intelligence Structures or their functioning, the affected parties must be notified in a manner determined by the Minister.
( 5 ) A regulation made under this section may provide that any person who contravenes a provision thereof or fails to comply therewith shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding five years.”.
. the National I telligence Structures; Cabinet and the executive;
Short title and commencement
8. This Act is called the National Strategic Intelligence Amendment Act, 2002, and takes effect on a date fixed by the President by proclamation in the Gazetre.