SOUTH AFRICAN INTELLIGENCE


COMMITTEE OF MEMBERS OF PARLIAMENT ON AND INSPECTORS-GENERAL OF INTELLIGENCE ACT
1994
[Act 94-40, 02 December 1994]

                                                                                
                            OFFICE OF THE PRESIDENT                             
                                                                                
    No. 2081                                                    2 December 1994 
                                                                                
NO. 40 OF 1994: COMMITTEE OF MEMBERS OF PARLIAMENT ON AND INSPECTORS-GENERAL OF 
INTELLIGENCE ACT, 1994.                                                         
                                                                                
 It is hereby notified that the President has assented to the following Act,    
 which is hereby published for general information:                             
                                                                                
                                      ACT                                       
                                                                                
 To provide for the establishment of a Committee of Members of Parliament on    
 Intelligence and to define its functions; and for the appointment of           
 Inspectors-General of Intelligence and to define their functions; and to       
 provide for matters connected therewith.                                       
                                                                                
                   (Afrikaans text signed by the President.)                    
                        (Assented to 23 November 1994.)                         
                                                                                
 BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:-  
                                                                                
                                  Definitions                                   
                                                                                
 1. In this Act, unless the context otherwise indicates-                        
                                                                                
      (i) "accounting officer" means the Head of a Service; (xvi)               
                                                                                
      (ii) "Agency" means the National Intelligence Agency established by       
      section 3 of the Intelligence Services Act, 1994; (i)                     
                                                                                
      (iii) "Auditor-General" means the Auditor-General referred to in section  
      191 of the Constitution; (xiv)                                            
                                                                                
      (iv) "chairperson" means the person appointed under section 2(4)(b) as    
      chairperson of the Committee; (xx)                                        
                                                                                
      (v) "Commission" means the Commission on Remuneration of Represen-        
      tatives referred to in section 207 of the Constitution; (xi)              
                                                                                
      (vi) "Committee" means the Committee of Members of Parliament on          
      Intelligence established by section 2; (x)                                
                                                                                
      (vii) "Constitution" means the Constitution of the Republic of South      
      Africa, 1993 (Act No.  200 of 1993); (v)                                  
                                                                                
      (viii) "counter-intelligence" means counter-intelligence as defined in    
      section 1 of the National Strategic Intelligence Act, 1994; (xix)         
                                                                                
      (ix) "Evaluation Committee" means the Secret Services Evaluation Com-     
      mittee established by section 2 of the Secret Services Act, 1978 (Act     
      No.  56 of 1978); (ii)                                                    
                                                                                
      (x) "Head of a Service" means the Director-General of the Agency or of    
      the South African Secret Service, the Chief of the National Defence       
      Force or the Commissioner of the South African Police Service; (vii)      
                                                                                
      (xi) "Inspector-General" means a person appointed under section 7;        
      (viii)                                                                    
                                                                                
      (xii) "intelligence" means the process of gathering, evaluation,          
      correlation and interpretation of security information, including         
      activities related thereto, as performed by the Services; (ix)            
                                                                                
      (xiii) "Minister" means the Minister to whom the portfolio of the         
      Agency, the South African Secret Service, the National Defence Force or   
      the South African Police Service has been allocated in terms of section   
      88 of the Constitution; (xii)                                             
                                                                                
      (xiv) "money" means all money whatsoever received or held by an account-  
      ing officer for or on behalf of the State; (iv)                           
                                                                                
      (xv) "National Defence Force" means the Force established by section 224  
      of the Constitution; (xiii)                                               
                                                                                
      (xvi) "regulation" means a regulation made under this Act; (xv)           
                                                                                
      (xvii) "Services" means the Agency, the South African Secret Service,     
      the Intelligence Division of the National Defence Force and the National  
      Investigation Service of the South African Police Service; (iii)          
                                                                                
      (xviii) "South African Police Service" means the service referred to in   
      section 214 of the Constitution; (xviii)                                  
                                                                                
      (xix) "South African Secret Service" means the South African Secret       
      Service established by section 3 of the Intelligence Services Act, 1994;  
      (xvi)                                                                     
                                                                                
      (xx) "this Act" includes the regulations.  (vi)                           
                                                                                
                  Establishment of Committee on Intelligence                    
                                                                                
 2. (1) There is hereby established a Committee to be known as the Committee    
 of Members of Parliament on Intelligence, which shall, subject to the          
 Constitution, perform the oversight functions set out in this Act in           
 relation to the intelligence and counter-intelligence functions of the         
 Services, and report thereon to Parliament.                                    
                                                                                
    (2) The Committee shall consist of 11 members of Parliament.                
                                                                                
    (3) (a) Nine members of the Committee shall be appointed by the President   
    in accordance with the principle of proportional representation as          
    determined in accordance with the formula set out in section 228(3)(c) of   
    the Constitution and with the concurrence of the leaders of the political   
    parties entitled to be represented on the Committee according to that       
    formula.                                                                    
                                                                                
        (b) Two members of the Committee shall be appointed by the President    
        with the concurrence of the party or parties holding seats in           
        Parliament but which are not represented on the Committee in terms of   
        paragraph (a):  Provided that if there is no such party, such members   
        shall be appointed by the President with the concurrence of the         
        leaders of the parties holding seats in Parliament.                     
                                                                                
    (4) The President shall appoint one of the members appointed in terms of    
    subsection (3) as chairperson of the Committee.                             
                                                                                
    (5) A member of the Committee-                                              
                                                                                
        (a) shall, subject to paragraph (b), be appointed as a member until     
        the Parliament to which he or she has been elected under the            
        Constitution, is dissolved in terms of the Constitution;                
                                                                                
        (b) may, at the request of the leader of his or her party to the        
        President, or if he or she conducted himself or herself in a manner     
        which in the opinion of the President with the concurrence of the       
        Committee constitutes a threat to the national security, be             
        substituted as a member of the Committee with another member of his or  
        her party with the concurrence of the leader of that party;             
                                                                                
        (c) may resign by notice in writing to the President, in which event    
        the President shall appoint a substitute in accordance with paragraph   
        (b) and subsection (3);                                                 
                                                                                
        (d) may receive such remuneration and allowances (if any) as the Com-   
        mission may determine.                                                  
                                                                                
    (6) The Committee shall meet at such times and follow such procedures as    
    may be prescribed by regulation, but the chairperson shall have the power   
    to determine when the Committee shall meet in camera.                       
                                                                                
    (7) The Committee shall be assisted in the performance of its functions by  
    an officer or officers in the Public Service designated for that purpose    
    by the President, after consultation with the chairperson and the Heads of  
    the Services, and the Inspectors-General.                                   
                                                                                
                            Functions of Committee                              
                                                                                
 3. (1) The functions of the Committee are-                                     
                                                                                
        (a) notwithstanding anything to the contrary contained in any other     
        law or the common law, to obtain from-                                  
                                                                                
           (i) the Auditor-General, subject to the provisions of the Auditor-   
           General Act, 1989 (Act No.  52 of 1989), an audit report regarding   
           the accounts and financial statements of the accounting officer      
           regarding money expended on the administration and functions of a    
           Service and regarding the money invested in terms of section 5 of    
           the Security Services Special Account Act, 1969 (Act No.  81 of      
           1969);                                                               
                                                                                
           (ii) the Evaluation Committee a report on the secret services and    
           intended secret services evaluated and reviewed by it, together      
           with any comments or recommendations which the Evaluation Committee  
           may deem appropriate;                                                
                                                                                
           (iii) any judge as defined in section 1 of the Interception and      
           Monitoring Prohibition Act, 1992 (Act No.  127 of 1992), 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 judge may deem            
           appropriate:  Provided that such report shall not disclose any       
           information contained in an application or direction contemplated    
           in section 3 of that Act;                                            
                                                                                
           (iv) each Minister, a report regarding the budget for the Service    
           for which he or she is responsible;                                  
                                                                                
        (b) to consider and make recommendations on the report and certificate  
        transmitted to it in terms of section 7(7)(d);                          
                                                                                
        (c) to consider and make recommendations on all proposed legislation    
        relating to a Service and any other intelligence and                    
        intelligence-related activities, and to initiate legislation in         
        connection with such Service, intelligence and activities;              
                                                                                
        (d) to review and make recommendations on regulations made under        
        section 6 of the National Strategic Intelligence Act, 1994, and         
        regulations regarding the intelligence and counter-intelligence         
        functions of a Service, made under section 29 of the Intelligence       
        Services Act, 1994, section 87 of the Defence Act, 1957 (Act No.  44    
        of 1957), or section 33 of the Police Act, 1958 (Act No.  7 of 1958);   
                                                                                
        (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;                                           
                                                                                
        (f) to order investigation by and to receive a report from the Head of  
        a Service or an Inspector-General regarding any complaint received by   
        the Committee from any member of the public regarding anything which    
        such member believes that a Service has caused to his or her person or  
        property:  Provided that the Committee is satisfied that such           
        complaint is not trivial or vexatious or made in bad faith;             
                                                                                
        (g) to refer any matter in relation to a Service or intelligence        
        activity which comes to its attention and which it regards as relevant  
        to the promotion of, respect for, and protection of the rights          
        entrenched in Chapter 3 of the Constitution to the Human Rights         
        Commission established by section 115 of the Constitution, and to       
        receive a report from such Commission concerning the matter;            
                                                                                
        (h) to consider and make recommendations regarding any matter falling   
        within the purview of this Act and referred to it by the President,     
        the Minister or Parliament;                                             
                                                                                
        (i) to request the officials or bodies referred to in subsection        
        (1)(a), (b) and (f) to explain any aspect of a report;                  
                                                                                
        (j) to deliberate upon, hold hearings, subpoena witnesses and make      
        recommendations on any aspect relating to intelligence and the nat-     
        ional security;                                                         
                                                                                
        (k) to consult with any member of the Cabinet appointed in terms of     
        the Constitution, regarding the performance of the functions of the     
        Committee in terms of this Act.                                         
                                                                                
               Access to intelligence, information and documents                
                                                                                
 4. (1) The Committee shall, notwithstanding anything to the contrary con-      
 tained in any other law or the common law, but subject to subsection (2) and   
 the proviso to section 3(1) (a) (iii), in the performance of its functions,    
 have access to intelligence, information and documents in the possession or    
 under the control of a Service, on condition that-                             
                                                                                
        (a) such access is necessary for the performance of such functions;     
                                                                                
        (b) such intelligence, information and documents shall be handled in    
        accordance with the written security guidelines and measures of, or     
        the conditions prescribed or determined by, the chairperson with the    
        concurrence of the Heads of the Services; and                           
                                                                                
        (c) such documents shall after inspection thereof be returned to a      
        Service as determined by the Head of that Service.                      
                                                                                
    (2) (a) Notwithstanding anything to the contrary contained in this Act or   
    any other law, a Service shall not be obliged to disclose to the            
    Committee-                                                                  
                                                                                
           (i) the name or identity of any person or body engaged in            
           intelligence or counter-intelligence activities;                     
                                                                                
           (ii) any intelligence, information or document in a form which       
           could reveal the identity of any source of such intelligence,        
           information or document if that intelligence, information or         
           document was provided to such Service under an express or implied    
           assurance of confidentiality;                                        
                                                                                
           (iii) any intelligence or counter-intelligence method employed by a  
           Service if such disclosure could reveal or lead to the revelation    
           of the name or identity of any person or body engaged in             
           intelligence or counterintelligence activities or the identity of    
           the source of any intelligence, information or document:  Provided   
           that this provision shall not prevent the disclosure of any part of  
           intelligence, information or a document if such part can be          
           separated from the part which could reveal the name, identity or     
           method referred to in subparagraphs (i) and (ii) and this            
           subparagraph.                                                        
                                                                                
        (b) In the event of a dispute arising from-                             
                                                                                
           (i) the provisions of paragraph (a) as to whether or not the         
           disclosure of any intelligence, information or document may reveal   
           the name or identity of any person or body engaged in intelligence   
           or counter- intelligence activities or intelligence or               
           counter-intelligence methods employed or the identity of the source  
           of intelligence, information or document; or                         
                                                                                
           (ii) the provisions of subsection (1)(a) as to whether access to     
           certain intelligence, information or any document is necessary to    
           perform the functions of the Committee, such dispute shall be        
           referred for determination to a committee composed of the            
           Inspector-General responsible for a Service concerned, the Head of   
           that Service, the chairperson of the Committee and the Minister      
           responsible for that Service, which decision of the Committee shall  
           be final.                                                            
                                                                                
 (3) The Committee may, for the purposes of the performance of its functions,   
 require a Minister, the Head of a Service or the Inspector-General of a        
 Service to appear before it to give evidence, to produce any document or       
 thing and answer questions put to him or her:  Provided that such person       
 shall-                                                                         
                                                                                
        (a) be given reasonable notice of such appearance;                      
                                                                                
        (b) be given reasonable details regarding the purpose of such           
        appearance; and                                                         
                                                                                
        (c) have the right to be assisted by members of that Service.           
                                                                                
                                    Secrecy                                     
                                                                                
 5. (1) The Committee shall conduct its functions in a manner consistent with   
 the protection of national security.                                           
                                                                                
    (2) No person shall disclose any intelligence, information or document the  
    publication of which is restricted by law and which is obtained by that     
    person in the performance of his or her functions in terms of this Act,     
    except-                                                                     
                                                                                
        (a) to the extent to which it may be necessary for the proper           
        administration of any provision of this Act;                            
                                                                                
        (b) to any person who of necessity requires it for the performance of   
        any function in terms of this Act;                                      
                                                                                
        (c) with the written permission of the chairperson, which permission    
        may be given only with the concurrence of the Head of a Service and     
        the Inspector-General concerned; or                                     
                                                                                
        (d) as prescribed by regulation.                                        
                                                                                
    (3) Any person who contravenes a provision of subsection (1) shall be       
    guilty of an offence and liable on conviction to a fine, or to              
    imprisonment for a period not exceeding five years.                         
                                                                                
                             Report to Parliament                               
                                                                                
 6. (1) The Committee shall, within two months after 31 March in each year,     
 submit to the President and to each Minister concerned a report on the         
 activities of the Committee during the preceding year, together with the       
 findings made by it and the recommendations it deems appropriate, and the      
 President shall cause such report to be tabled in Parliament within 15 days    
 of session of Parliament after the report was submitted to him or her.         
                                                                                
    (2) The Committee may at the request of the President or the Minister       
    concerned or at any other time which the Committee deems necessary,         
    furnish the President or such Minister with a special report concerning     
    any matter relating to the performance of its functions.                    
                                                                                
                                Inspector-General                               
                                                                                
 7. (1) The President shall appoint for each Service an Inspector-General of    
 Intelligence-                                                                  
                                                                                
        (a) nominated by the Committee; and                                     
                                                                                
        (b) approved by the National Assembly and the Senate by a resolution    
        adopted by a majority of at least 75 per cent of the members present    
        and voting at a joint meeting:  Provided that if any nomination is not  
        approved as required in paragraph (b), the Committee shall nominate     
        another person.                                                         
                                                                                
    (2) An Inspector-General shall be a South African citizen who is a fit and  
    proper person to hold such office.                                          
                                                                                
    (3) The remuneration and other conditions of employment of an Inspector-    
    General shall be determined by the President with the concurrence of the    
    Committee and such remuneration shall not be reduced, nor shall such        
    conditions be adversely altered during his or her term of office.           
                                                                                
    (4) An Inspector-General may be removed from office by the President, but   
    only on the grounds of misbehaviour, incapacity or incompetence determined  
    by the Committee.                                                           
                                                                                
    (5) An Inspector-General who is the subject of an investigation by the      
    Committee in terms of subsection (4) may be suspended by the President      
    pending a decision in such investigation.                                   
                                                                                
    (6) An Inspector-General shall be responsible to the President.             
                                                                                
    (7) The functions of an Inspector-General are, in relation to the Service   
    in respect of which he or she is appointed-                                 
                                                                                
        (a) to monitor compliance by the Service with its policies;             
                                                                                
        (b) to review the activities of the Service;                            
                                                                                
        (c) to perform all functions designated to him or her by the Minister   
            concerned;                                                          
                                                                                
        (d) to submit certificates to the Minister concerned pursuant to        
            subsection (11)(c); and                                             
                                                                                
        (e) to submit reports to the Committee pursuant to section 3(1)(f).     
                                                                                
    (8) Notwithstanding anything to the contrary contained in any other law or  
    the common law, an Inspector-General shall have access to any               
    intelligence, information or premises under the control of the Service in   
    respect of which he or she has been appointed if such access is required    
    by the Inspector-General for the performance of his or her functions, and   
    he or she shall be entitled to demand from the Head of the Service and its  
    employees such intelligence, information, reports and explanations as the   
    Inspector-General may deem necessary for the performance of such            
    functions,                                                                  
                                                                                
    (9) No access to intelligence, information or premises contemplated in      
    subsection (3) may be withheld from an Inspector-General on any ground.     
                                                                                
    (10) An Inspector-General-                                                  
                                                                                
        (a) shall comply with all security requirements applicable to the       
        employees of the Service in respect of which he or she has been         
        appointed; and                                                          
                                                                                
        (b) shall serve impartially and independently and perform his or her    
        functions in good faith and without fear, favour, bias or prejudice.    
                                                                                
 (11) (a) Each Head of a Service shall, in respect of every period of 12        
 months or such lesser period as is specified by the Minister concerned,        
 submit to that Minister, at such times as the Minister may specify, a report   
 on the activities of that Service during that period, and shall cause a copy   
 of such report to be submitted to the Inspector-General appointed for that     
 Service.                                                                       
                                                                                
        (b) (i) Each Head of a Service shall report to the Inspector-General    
        appointed for that Service regarding any unlawful intelligence          
        activity or significant intelligence failure of that Service and any    
        corrective action that has been taken or is intended to be taken in     
        connection with such activity or failure.                               
                                                                                
            (ii) A Head of a Service shall submit the report referred to in     
            subparagraph (i) to the Inspector-General concerned within a        
            reasonable period after such unlawful intelligence activity or      
            significant intelligence failure came to his or her attention.      
                                                                                
        (c) As soon as practicable after receiving a copy of a report referred  
        to in paragraph (a), an Inspector-General shall submit to the Minister  
        concerned a certificate stating the extent to which such                
        Inspector-General is satisfied with the report and whether anything     
        done by that Service in the course of its activities during the period  
        to which the report relates, in the opinion of such Inspector-          
        General-                                                                
                                                                                
            (i) is unlawful or contravenes any direction issued by that         
            Minister; or                                                        
                                                                                
            (ii) involves an unreasonable or unnecessary exercise by that       
            Service of any of its powers.                                       
                                                                                
        (d) As soon as practicable after receiving a report referred to in      
        paragraph (a) and a certificate of the Inspector-General referred to    
        in paragraph (c), the Minister concerned shall, subject to section      
        4(2), cause the report and certificate to be transmitted to the         
        Committee.                                                              
                                                                                
 (12) The Minister responsible for a Service may, after consultation with the   
 Inspector-General concerned, appoint such persons as may be necessary for the  
 performance of the functions of that office of the Inspector-General, on such  
 conditions of employment as are applicable to members of that Service.         
                                                                                
                                  Regulations                                   
                                                                                
 8. The President may make regulations as to all matters which are necessary    
 or expedient for the achievement of the purposes of this Act, including but    
 not limited to-                                                                
                                                                                
        (a) the procedures to be followed regarding the hearing of evidence     
        and the powers of the Committee in regard thereto;                      
                                                                                
        (b) an oath or affirmation of secrecy to be subscribed by members of    
        the Committee, and staff appointed in terms of section 7(12);           
                                                                                
        (c) anything which shall or may be prescribed under this Act.           
                                                                                
                         Short title and commencement                           
                                                                                
 9. This Act shall be called the Committee of Members of Parliament on and      
 Inspectors-General of Intelligence Act, 1994, and shall come into operation    
 on a date fixed by the President by proclamation in the Gazette.