General Intelligence Law Amendment Act

Link to law: http://www.gov.za/documents/general-intelligence-law-amendment-act
Published: 2001-02-22

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General Intelligence Law Amendment Act [No. 66 of 2000]


Government Gazette

REPUBLIC OF SOUTH AFRICA
Vol. 428 Cape Town 22 February 2000 No. 22087
THE PRESIDENCY
No. 179 22 February 2001
It is hereby notified that the Acting President has assented to the following Act which is hereby published for general information:–
No. 66 of 2000: General Intelligence Law Amendment Act, 2001


-GENERAL EXPLANATORY NOTE: ’ .. . .. 4“-
J 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 Acting President.) (Assented to 20 February 2001.)
ACT To amend the Intelligence Services Act, 1994, so as to provide for a retirement age for members; to’regulate labour relations and strikes; to restrict former members of the National Intelligence Agency or South African Secret Service from using their skills to the detriment of the Agency or Service; to provide for the disposal of lawfully obtained material; and to delete certain obsolete references and provisions; to amend the National Strategif InteIligence Act, 1994, so as to further provide for the power of the Minister to make regulations; and to provide for matters connected therewith.
B E IT ENACTED by the Parliament of the Republic of South Africa, as follows:- Amendment of section 1 of Act 38 of 1994 as amended by section 35 of Act 47 of 1997
1. Section 1 of the Intelligence Services Act, 1994 (hereinafter referred to as the 5 principal Act), is hereby amended by-
(a) the substitution for the definition of “Agency” of the following definition: “ ‘Agency’ means the National Intelligence Agency [established by] referred to in section 3;”;
(b) the deletion of the definition of “Deputy President”; 10 (c) the insertion after the definition of “Director-General” of the following
“ ‘former member’ means, any member of the Agency or the Service definitions:
whose services have been terminated for any reason; ‘Intelligence Review Board’ means the Intelligence Review Board 15 established by section 22B;”:
(dl the substitution for the definitid~’:i;e’:iister~’’of the following definition: “ ‘Minister’ means the Minister [designated by the fresidentl as defined in section 1 of the National Strategic Intelligence Act, 1994 by words, conduct or demeanour pretends that he or she is such a member;
(ii) persuades any member to omit to carry out his or her duty or to do any act inco flict with his or her duty: or 30
(iii) is an accomplice to the commission of any act whereby any lawful order given to a member or any regulation may be evaded;
(6) [subpoenaed in terms of section 15 to appear as a witness at an enquiry who fails to attend at the time and place mentioned in the subpoena, or having attend$,,,,$@f!ws to answer all questions 35 lawfully put out to him or her] fails to comply with a requirement in terms of section 19(3)(b); ’
(c) [subpoenaed in terms of section 15 to appear as a witness at ‘an enquiry and at any ‘such enquiry makes any false statement on oath knowing it to be false] not being the person to whom a 40 decoration or medal was awarded, wears it or, without the written permission of the Director-Genera1 concerned, makes use of any decoration or medal established or introduced under this Act, or of its
( a ) not being a member [who]--
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14 No. 22087 GOVERNMENT G m 22 FEBRUARY 2000
Act No. 66,2000 GENERAL INTELSIGENffiAW AMENDMENT ACT, 2001
. bar, clasp or ribbon, or anything so closely resembling any such- ., . decoration, medal, bar, cl sp or ribbon as to be calculated to deceive:
( 4 [who unlawfullv ‘and intentionalh violates a Drovision of the regulations mentioned in the second proviso to &tion 16;] w.ithout 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 indicating or conveying or purporting to indicate or is calculated or is likely to lead other persons to believe or infer that such activity is carried on or under or by virtue of this Act or under the patronage of the Agency or the Service, as the case may be, or is in any manner associated or connected with the Agency or the Service;
(e) who enters upon or is on or in any premises in contravention of any prohibition or resmction under section 24,
[(f) who, not being the person to whom a decoration or medal was awarded, wears it or, without the written permission of the Director-General concerned, makes use of any decoration or medal established or introduced under this Act, or of its bar, clasp or ribbon, or anything to closely resembling any such decoration, medal, bar, clasp or ribbon as to be calculated to deceive;
(g) who, without the approval of the Deputy President or 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 indicating or conveying or purporting to ind$ate or convey or is calculated or is likely to lead other persons to believe or infer that such activity is carried on under or by virtue of the provisions of this Act or under the patronage of the Agency or the Service, as the case may be, or is in any manner associated or connected with the Agency or the Service;]
shall be guilty of an offence. (2) Any person convicted of an offence under this Act shall be liable, in
the case of a contravention of-- (a) subsection (l)(a) [or @)], ‘to a fine, or to imprisonment for a period not
exceeding six months; (bl subsection (1) [(c)] ( c ) , to [the penalties prescribed by law for
perjury] a fine, or to imprisonment for a period not exceeding one year;
( c ) subsection (l)(d) [(e) or (#)I, to a fine, or to imprisonment for a period not exceeding [one] years;
(d) subsection (1) [(g)] @, to a fine, or to imprisonment for a period not exceeding [two] Q years; or
(e) [subsection l(h)] sections 22A, 22B, 22C(1), 22D and 22E( 11, to a fine or to imprisonment for a period not exceeding 15 years.”.
Insertion of section 22A in Act 38 of 1994
18. The following sections are hereby inserted after section 22 of the principal Act:
“Disclosure of classified information by former members of Agency or Service
22A. (1) A former mi~b;r%i’y not disclose in any form or any manner any information or mazerial’to any other person unless- (a) the person to whom the information or material is disclosed is
authorised by the Director,-General to receive it; (b) the Intelligence Review Board has granted permission for the
disclosure of the information or material.
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(2) Subsection (1) applies to any inforniarion or-mateFiaireceived by the former member during, or subsequent to, the former-member's employment
(a) that was marked as classified or that the former member knew or ought
(b) that the former member knew or ought reasonably to have known was
or other service with thi Agency or Service- . I.
reasonably to have known was classified;
in the process of being classified at the time of disclosure.
Establishment of Intelligence Review Board
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22B. (1) An Intelligence Review Board is hereby established, consistin! Of not less than three but not more than five persons appointed by the ~ Minister of whom one shall be designated by him or her as the chairpenon.
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(a ) consider and approve any application by a former member to disclose
(b) perform any other prescribed function. 15 (3) The Minister shall appoint as members of the Board, fit and proper
persons with integrity. (4) No person shall be appointed as a member of the Intelligence Review
Board before a security clearance has been issued in respect of that person by the relevant authority. 20
(a) the term of of ice of the members of the Board; 1 (b) with the concurrence of the Minister of Finance, the remuneration and
Provided that members of the Board who are employees appointed in terms 25 of the Public Service Act, 1994 (Proclamation No. 103 of 1994), and members of the Agency or the Service, as the case may be, shall not be entitled to such remuneration and allowances; and (c) any other conditions of appointment.
Board from office prior to the e x p e of that member's term of office if- ( a ) a member of the Intelligence Review Board is found guilty of an
(b ) is unable to cany out responsibilities as a member of the Intelligence
(c) the security clearance of the member is withdrawn.
expedient for the functioning of the Intelligence Review Board.
(2) The functions of the Intelligence Review Board are t o -
information or'material in terns of subsection (1);
(5) The Minister may detedne-
ailowances to be paid to members of the Board:
(6) The Minister may remove a member of the Intelligence Review 30
offence or a misdemeanour as prescribed;
Review Board: 35
(7) n e Minister may prescribe all matters which are necessary or
Prohibited communications by former members
22C. (1) No former member of the Agency or Service, as the case may be, may communicate in the Republic or elsewhere in a manner that is likely to be detrimental to the security of the Republic with any person- (a) who is or was a member, representative or associate of the Agency or
the Service, as the case may be; (b) who co-operates or has co-operated with the Agency or the Service, as
the case may be, in respect of matters concerning the security of the
(2) Subsection (1) does not apply to communications of a purely personal Repb!,iF2:. , ..
- nature: . .
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18 No. 22087 . GOVERNMENT GAZETTE, 22 FEBRUARY 2000
Act No. 6S,33!lO GENERAL INTELLIGENCE LAW AMENDMENT Am, 200 1 . ,
Prohibited employment by-farmer members
22D. (4) No formep member may utilise in the Republic or elsewhere any skilIs, information or material acquired as a result of his or her employment by the Agency or the Service in any manner, which may be detrimental to the security of the Republic or to the interests of the Agency or Service, as the case may be.
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Employment in private security industry
Director-GeneraI.
may apply for a clearance certificate in terms of subsection (1). ( 2 ) The Minister may prescribe the manner in which any former member
Appeals
22F. (1) A former member may appeal to the Minister against the 15 decision of the Intelligence Review Board in terms of section 22B(2).
(2) A former member may appeal to the Minister against the decision of the Director-General to issue a clearance certificate in t e r n of section 22E.
(3) The Minister may prescribe the procedure of appeal by former members. ‘ 20
Conduct of former members
22G. (1) The Minister may prescribe the manner in which former members of the Agency or the Service may conduct themselves in order to protect the interests of the Agency or the Service and the security of the Republic. 25
(2) Regulations made by the Minister in terms of sections 22B, 22E, 22F and 22G shall be made by notice in the Gazetre.”.
Amendment of section 26 of Act 38 of 1994
19. Section 26 of the principal Act is hereby amended by the substitution for subsection (1) of the following subsecti n: 30
“( 1) Any civil proceedings against the State or any person in respect of anything done in pursuance of this Act, shall be instituted within [two] years after becoming aware that the cause of action arose, and notice in writing of any such proceedings and of the cause thereof shall be given to the defendant not less than [one mo th] 30 calendar days before it is inst tuted.”. 35
Amendment of section 28 of Act 38 of 1994
20. Section 28 of the principal Act is hereby amended by the substitution for
“(2) The provisions of the [Police Act, 1958 (Act No. 7 of 1958),] South African subsection (2) of the folIowing subsection:
Police Service Act, 1995 (Act No. 68 of 1995), relating to the establishment or 40 @iEcri:;g ‘of a service or training in, the Police Reserve, shall not apply to any ;, , .: I L A , ? . . , . .: !. member of the Agency or the Service.”.
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Amendment of section 29 of Act 38 of 1994
21. Section 29 of the principal Act is ‘hereby amended by- (a) the substitution for paragraph @ of subsection (1) of the following paragraph: 45
“(” [the definition of offences against duty and discipline and, generally, the control and, discipline of the Agency and the Service] as to all matters relating to discipline, command and control of members of the Agency or the Service;”;
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20 No. 22087 I GOCWh4ENT G4ZElTE. 22 FEBRUARY 2000 -.. . ;’’” Act NO. &,ZOO0 GENERAL INTELLIGENCE LAW AMENDMENT ACT, 2001 ’ -. ’. *...., (6) the deletion of paragraphs (k)&, (m), (n), (p), (4) and (r) of subsection (1); IC) the substitution for paragraph (i) of subsection (1) of the following paragraph:
followed in respect of cases of alleged or presumed medical unfitness;”;
(d ) the substitution for paragraph (j) of subsection (1) of the following paragraph: “(i) [appeals in terms of this Act] procedure to be followed in respect
(e) the.substitution of paragraph (u) of subsection (1) forthe following paragraph: “(u) [the regulation of labour relations and the creation of accompa-
* b “(i) [the charging’of members with ‘htisconduct] procedures to be
of cases of alleged or presumed inefficiency;”;
nying structures] a&natters relating to representivity and. equity, as far as is possible in accordance with the Employment Equity Act, 1998 (Act No. 55 of 1998).”; and
(fl the deletion of subsection (3).
Repeal of section 31 of Act 38 of 1994
22. Section 3 1 of the principal Act is hereby repealed.
DeIetion of expression “the Deputy President or” in Act 38 of 1994
23. The principal Act is hereby amended by the deletion of the expression “the Deputy President or” wherever it occurs.
Aniendment of section 1 of Act 39 of 1994
24. Section 1 of the National Strategic Intelligence Act, 1994, is hereby amended by the insertion after the definition of “Nicoc” of the following definition:
“ ‘prescribed’ means prescribed by regulation;”.
Amendment of section 4 of Act 39 of 1994
25. Section 4 of the National Strategic Intelligence Act, 1994 is hereby amended by
“(R the [head of the service of the South African Police Service under which its intelligence division falls] head of the intelligence division of the South African Police Service.”.
the substitution in subsection (1) for paragraph (’ of the following paragraph:
Amendment of section 6 of Act 39 of 1994
26. Section 6 of the National Strategic Intelligence Act 1994, is hereby amended-
“(1) The Minister may, subject to the provisions of subsection (21, make such regulations as [are] to any matter which is necessary 0’ expedient to be prescribed in order that he purpose of [effective administration of] this Act may be achieved.”; and
(a) by the substitution for subsection (1) of the following subsection:
(6) by the insertion after subsection (2:1 of the following subsection: “(2A) A regulation made in terms of this section may not be published
in the Gazette but shall be notified to persons to whom it applies in such manner as the Minister may determine.”.
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