INTELLIGENCE SERVICES ACT
1994
[Act 94-38, 02 December 1994]
OFFICE OF THE PRESIDENT
No. 2079 2 December 1994
NO. 38 OF 1994: INTELLIGENCE SERVICES ACT, 1994.
It is hereby notified that the President has assented to the following Act,
which is hereby published for general information:
GENERAL EXPLANATORY NOTE:
** ** Words between asterisk indicate omissions from
existing enactments.
[[ ]] Words between pointed brackets indicate
insertions in existing enactments.
ACT
To regulate the establishment, organisation and control of the National
Intelligence Agency and the South African Secret Service; 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:-
CHAPTER I
Definitions and application of Act
Definitions
1. In this Act, unless the context otherwise indicates-
(i) "Agency" means the National Intelligence Agency established by
section 3; (ii)
(ii) "department" means a department as defined in section I of
the Public Service Act, 1994; (iii)
(iii) "Deputy President" means the Executive Deputy President
designated by the President; (i)
(iv) "Director-General" means the person appointed as the
Director- General of the Agency or the Service, as the case may
be, under section 3; (v)
(v) "member" means a member of the Agency or the Service, as the
case may be; (vii)
(vi) "Minister" means the Minister designated by the President;
(viii)
(vii) "misconduct" means-
(a) the commission of any offence; or
(b) a contravention of or failure to comply with any provision of this
Act which is not an offence; (xiii)
(viii) "premises" includes any land, building, building works,
instrument, equipment or means of transport; (ix)
(ix) "prescribed" means prescribed by regulation; (xii)
(x) "Public Service Commission" means the Public Service
Commission established by section 209 of the Constitution of the
Republic of South Africa, 1993 (Act No. 200 of 1993); (xi)
(xi) "regulation" means a regulation made under this Act; (x)
(xii) "Service" means the South African Secret Service established
by section 3; (iv)
(xiii) "this Act" includes the regulations. (vi)
Application of Act
2. Unless the context otherwise indicates, the provisions of this Act shall
apply in respect of all members, irrespective of whether they became members
at the commencement of this Act or were appointed as members after the
commencement of this Act, and irrespective of whether they work in or outside
the Republic.
CHAPTER II
Establishment, composition and organisation of Agency and Service
Establishment of Agency and Service
3. (1) There is hereby established a National Intelligence Agency and a South
African Secret Service, which shall consist of-
(a) the persons who, on the date of the commencement of this Act, are
members of the Bureau as defined in section I of the Bureau for State
Security Act, 1978 (Act No. 104 of 1978);
(b) the persons who, on the date of the commencement of this Act, are
members of the Department of Intelligence and Security of the African
National Congress;
(c) the persons who, on the date of the commencement of this Act, are
members of the Bophuthatswana Internal Intelligence Service by virtue
of their appointment in terms of the Bophuthatswana Internal Intelli-
gence Service Act, 1982 (Act No. 25 of 1982), or are appointed in
terms of section 15 of the National Security Council Act, 1981 (Act
No. 27 of 1981), of Bophuthatswana;
(d) the persons who, on the date of the commencement of this Act, are
members of the Transkei Intelligence Service by virtue of their
appointment in terms of the Intelligence Service and State Security
Council Act, 1987 (Act No. 67 of 1987), of Transkei;
(e) the persons who, on the date of the commencement of this Act, are
members of the Venda National Intelligence Service by virtue of their
appointment in terms of the National Intelligence Service Act, 1988
(Act No. 31 of 1988), of Venda; the persons who, immediately before
the commencement of the Constitution of the Republic of South Africa,
1993 (Act No. 200 of 1993), were members of any intelligence service
or intelligence structure of-
(i) any Government of a self-governing territory as defined in
section 38(1) of the Self-governing Territories Constitution Act,
1971 (Act No. 21 of 1971); or
(ii) any political party or organisation, and in respect of whom
such service or structure applies within seven days after the
commencement of this Act, to the Director-General to become
members of the Agency or the Service; and
(g) the persons appointed after the commencement of this Act in terms
of the provisions thereof, as members of the Agency or the Service:
Provided that any person contemplated in paragraphs (a) to (f) who,
within two months after the commencement of this Act elects in writing
to the Director-General not to be a member of the Agency or the
Service, shall be deemed to have resigned voluntarily with effect from
the date of such election: Provided further that the persons
contemplated in paragraphs (a) to (f) are South African citizens and
that their names appear on a personnel list submitted by the head of
each organisational component referred to in subsection (2)(a) to the
President within seven days after the commencement of this Act.
(2) (a) The persons referred to in subsection (1)(a) to (f), shall continue
in their service and shall form organisational components of both the Agency
and the Service until their integration into and the rationalisation of the
Agency and the Service in terms of subsection (3).
(b) Any person who at the commencement of this Act, is the head of a
Bureau, Service, Department or structure contemplated in paragraph (a)
shall be the organisational head of the corresponding organisational
component of the Agency and the Service, but shall manage such
component subject to the control of both Directors-General: Provided
that a Director-General may not also be the head of an organisational
component.
(c) If an organisational component, for whatever reason, does not have
a head at the commencement of this Act, the Directors-General may,
after consultation with the advisory board contemplated in section 31
and with the concurrence of the President, appoint a member as head of
such component.
(d) The Directors-General may designate a member or members to form a
management committee for an organisational component, and in such a
case the head of such organisational component shall manage such
component with the concurrence of such management committee: Provided
that the Directors-General may, in the case where an organisational
component does not have a head, appoint a management committee as head
of such organisational component.
(e) The head of an organisational component and a management committee
(if any) shall report to and act upon the directions of the
Directors-General.
(f) The salary, salary scale and other conditions of employment of a
member serving in an organisational component contemplated in
paragraph (a) shall be those that were applicable to such member
immediately before the commencement of this Act by virtue of a law
repealed by section 32: Provided that the salary, salary scale and
other conditions of employment of persons referred to in subsection
(1)(b) and (f)(ii) shall be determined by the advisory board
contemplated in section 31, acting with the concurrence of the
Directors-General and the President: Provided further that if the
salary which a member receives in terms of this paragraph after the
commencement of this Act is less than the salary on the scale
determined for him or her after his or her appointment or allocation
under subsection (3), such member will be entitled to a sum equal to
the difference between the salary received and the salary determined,
calculated from the commencement of this Act.
(3) The President shall for the purpose of the Agency and the Service-
(a) appoint a Director-General for the Agency and a Director-General
for the Service;
(b) establish chief directorates, directorates and divisions for the
Agency and the Service, and prescribe the post structures thereof;
(c) prescribe the functions of the structures contemplated in
paragraph (b);
(d) appoint managers and allocate members to the structures referred
to in paragraph (b) from among members of the organisational
components; and
(e) in general, but subject to the provisions of this Act, determine
and prescribe all matters that are necessary or expedient for the
creation and establishment of the Agency and the Service out of the
organisational components.
(3) The Director-General shall, 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 Agency or
the Service, as the case may be, are protected from unauthorised
disclosure;
(b) no action is carried out that could give rise to any reasonable
suspicion that the Agency or the Service, as the case may be, is
concerned in furthering, protecting or undermining the interests of
any section of the population or any political party or organisation;
and
(c) the functions of the Agency or the Service, as the case may be,
are limited to what is necessary for the purposes of the discharge of
its functions in terms of the National Strategic Intelligence Act,
1994, and the Secret Services Act, 1978 (Act No. 56 of 1978).
(4) The Directors-General shall take steps to ensure the expeditious integra-
tion and rationalisation of the organisational components into the Agency and
the Service.
Powers and duties of members
5. (1) A member may exercise such powers and shall perform such duties as are
by or under this Act or any other law conferred or imposed upon him or her,
and shall in the performance of his or her functions obey all lawful
directions which he or she may from time to time receive from a person having
the authority to give such directions.
(2) If a judge as defined in section 1 of the Interception and Monitoring
Prohibition Act, 1992 (Act No. 127 of 1992), is convinced, on the grounds
mentioned in a written application complying with directives issued under
subsection (7), that-
(a) information which has or could probably have a bearing on the
functions of the Agency or the Service as contemplated in section 2 of
the National Strategic Intelligence Act, 1994, can be obtained on any
premises and such information is of substantial importance to the
Agency or the Service in the discharge of its functions; or
(b) there is on any premises information which has or could probably
have a bearing on the functions of the Agency or the Service as
contem- plated in section 2 of the National Strategic Intelligence
Act, 1994, which information is required by the Agency or the Service
for the proper discharge of its functions,
and that such information cannot reasonably be obtained by other
means, he or she may issue the Agency or the Service with a direction
authorising any member when reasonably necessary-
(i) to enter such premises;
(ii) to search such premises with the purpose of obtaining such
information;
(iii) to examine, copy, photograph or transcribe any article,
document or other material on such premises; and
(iv) to remove any article, document or other material from the
premises, for as long as is reasonably necessary, for the purposes
of examining, copying, photographing or transcribing it, as the
case may be.
(3) (a) A direction referred to in subsection (2) shall be issued by the
judge concerned for a specific period not exceeding three months.
(b) A direction referred to in paragraph (a) may be executed by a
member of the Agency or the Service, as the case may be, provided that
such member has been authorised thereto by another member of such
Agency or Service holding a post of at least chief manager.
(4) The judge referred to in subsection (2) may, upon a written application
complying with the directives issued under subsection (7), extend the period
referred to in subsection (3) for a further period not exceeding three months
at a time, if that judge is convinced that the extension is necessary for a
reason mentioned in subsection (2).
(5) An application referred to in subsections (2) and (4) shall be heard and
a direction issued without any notice to the person, body or organisation to
which the application applies and without hearing such person, body or
organisation.
(6) Notwithstanding anything to the contrary contained in any other law or
the common law, the entry of any premises or the handling of any property,
article, document or any other material in or on or relating to such premises
by a member shall not be unlawful if it is done on the authority of a
direction issued in terms of this section.
(7) The Judges-President of the several Divisions of the Supreme Court of
South Africa may jointly issue directives to uniformly regulate the manner and
procedure of applications in terms of subsection (2).
General powers of Deputy President or Minister
6. (1) The Deputy President or the Minister may, subject to the provisions of
this Act, do or cause to be done all things which in his or her opinion are
necessary for the efficient superintendence, control and functioning of, and
action taken by, the Agency or the Service.
(2) Without derogating from the generality of his or her powers in terms of
subsection (1), the Deputy President or the Minister may-
(a) acquire or hire any premises, with or without any buildings
thereon, which may be necessary for the efficient functioning of the
Agency or the Service, and erect and maintain any buildings so
required and, with the concurrence of the Minister of Finance, supply
guarantees, indemnities and securities for those purposes;
(b) acquire and utilise any premises, movable property and any other
equipment which may be necessary for the efficient functioning of the
Agency or the Service;
(c) with the concurrence of the Minister of Finance, sell, let or
otherwise dispose of any premises, with or without any building
thereon, and anything referred to in paragraph (b), which are no
longer required for the said purposes.
Appointment, promotion, discharge, demotion and transfer of members
7. (1) The Deputy President or the Minister may, subject to the provisions of
this Act, appoint any person as a member and any member may in accordance with
the said provisions be promoted, discharged, reduced in rank or grade or
transferred.
(2) Any document in the prescribed form purporting to have been signed by the
Deputy President or the Minister and certifying that any person has been
appointed as a member shall be prima facie proof that such person has been so
appointed.
Security screening and discharge of members
8. (1) Subject to section 3(1)(a), (b), (c), (d), (e) and (f), no person may
be appointed as a member before-
(a) information with respect to that person has been gathered in the
prescribed manner in a security screening investigation by the Agency
or the Service, as the case may be; and
(b) the Deputy President or the Minister after evaluating the
collected information, is reasonably of the opinion that such person
may be appointed as a member without the possibility that such person
might be a security risk or that he or she might act in any way
prejudicial to security interests of the Republic.
(2) If the Deputy President or the Minister is reasonably of the opinion that
a person may be appointed without the possibility that such person might be a
security risk or might act in a way prejudicial to security interests, as
contemplated in subsection (1)(b), he or she shall issue a document with
respect to such person in which it is certified that such person has
successfully undergone a security clearance and is regarded by him or her as
security competent: Provided that the Deputy President or the Minister may
withdraw such certificate if he or she should obtain information which, after
evaluation by him or her, causes him or her no longer to be reasonably of the
opinion that the member may be employed as a member without the possibility
that the member could be a security risk or could possibly act in any manner
prejudicial to security interests of the Republic.
(3) If-
(a) the certificate, referred to in subsection (2), is withdrawn; or
(b) the Deputy President or the Minister obtains information regarding
a person who became a member in terms of section 3(l)(a), (b), (c),
(d), (e) or (f) which causes him or her to be reasonably of the
opinion that that person could be a security risk or could possibly
act in any manner prejudicial to security interests of the Republic,
such member shall be deemed unfit for further membership of the Agency
or the Service and the Deputy President or the Minister may-
(i) discharge such person or member from the Agency or the
Service; or
(ii) after consultation with the Public Service Commission
transfer such person or member to another department on the
conditions determined by the Deputy President or the Minister.
Discharge of members on account of long absence without leave
9. Any member who absents himself or herself from his or her official duties
without the permission of the Director-General concerned for a period exceed-
ing one month, shall be deemed to have been discharged from the Agency or the
Service, as the case may be, 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 any member absents himself or
herself from his or her official duties without such permission and accepts
other employment he or she shall be deemed to have been so discharged even if
he or she has not yet so absented himself or herself for a period of a month:
Provided further that if a member deemed to have been so discharged, again
reports for duty, the Director-General concerned may, notwithstanding anything
to the contrary contained in any law but subject to the approval of the Deputy
President or the Minister, reinstate him or her in his or her former post or
appoint him or her to any other post or appointment in the Agency or the
Service, as the case may be, on such conditions as the Director-General
concerned may deem fit, and in that event the period of his or her absence
from his or her official duties shall be deemed to have been absence on
vacation leave without pay, or leave on such other conditions as the
Director-General concerned may determine.
Discharge of members on account of ill-health
10. (1) Any member may be discharged from the Agency or the Service by the
Director-General concerned if, after enquiry in the prescribed manner as to
his or her state of health, such Director-General is of the opinion that he or
she is by reason of ill-health unfit to remain in the Agency or the Service,
as the case may be.
(2) Any member discharged in terms of subsection (1) may in the prescribed
manner appeal to the Deputy President or the Minister, who may thereupon set
aside or confirm his or her discharge.
Discharge or reduction in rank or grade of members on account of inefficiency
11. (1) A member may be discharged from the Agency or the Service or reduced
in rank or grade by the Director-General concerned if, after enquiry in the
prescribed manner as to his or her fitness to remain in employment or to
retain his or her rank or grade, such Director-General 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 Agency or the Service, as the
case may be, or reduced in rank or grade in terms of subsection (1), may in
the prescribed manner appeal to the Deputy President or the Minister, who may
thereupon set aside or confirm his or her discharge or reduction in rank or
grade, as the case may be.
Transfer and discharge on account of public interest, secondment of members,
and temporary employment of other persons
12. (1) If the public interest so requires, the Deputy President or the
Minister may-
(a) transfer any member from the post held by him or her to any other
post-
(i) in the Agency or the Service, as the case may be; or
(ii) if the Minister concerned has concurred therein and the
Public Service Commission has so recommended, in any other
department, whether or not such post is of a lower grade than that
of the post held by him or her, and whether or not such post is
within or outside the Republic: Provided that-
(aa) upon such a transfer a member's salary and salary scale shall
not be reduced without his or her consent, except in accordance with
the provisions of Chapter III;
(bb) such a transfer to another department shall take place on such
conditions as may be determined on the recommendation of the Public
Service Commission; and
(cc) a member shall not without his or her consent be transferred to
a post outside the Agency or the Service, as the case may be, if
such transfer will, save for his or her salary, result in a change
in his or her conditions of service;
(b) discharge any such member from the Agency or the Service, as the
case may be, on such conditions as the Deputy President or the
Minister may determine.
(2) A member may, with his or her consent and upon such conditions as may be
approved by the Deputy President or the Minister, be seconded by the
Director-General concerned for the performance of a particular service or for
a specified period, to the service of any other government or any other
authority, or any board, institution or body, but shall, while so seconded,
remain subject to the provisions of this Act and any other law which applies
to him or her.
(3) The Director-General concerned may by contract engage any person for the
performance of a particular service or for any period approved by the Deputy
President or the Minister.
Delegation of powers
13. (1) The Deputy President or the Minister may on such conditions as he or
she may deem fit delegate any power conferred upon him or her by this Act,
excluding any power conferred upon him or her by section 6(1), 8(3)(b)(i) and
(ii), 9, 10(2), 11(2), 12(1)(a)(ii) and (b), 15(9), 16, 17(4), 19(3)(a) and
(4), 21, 24(1), 25(2), 29, 30(2), (3) and (4) or 32(4), to the
Director-General or any other member of the Agency or the Service, as the case
may be, and any such power exercised in terms of such a delegation shall be
deemed to have been exercised by such Deputy President or Minister.
(2) The Director-General may delegate any power conferred upon him or her by
or under this Act to any other member of the Agency or the Service, as the
case may be, and any power exercised in terms of such a delegation shall be
deemed to have been exercised by that Director-General.
CHAPTER III
Discipline
Savings with respect to misconduct
14. Nothing in this Act contained shall be construed as indemnifying any
member against prosecution in or conviction by any court of law in respect of
any offence.
Procedure in case of alleged misconduct of members
15. (1) The Director-General concerned may, in the manner prescribed, charge
any member with misconduct and request him or her to submit, within such
period and in such manner as may be prescribed, a written admission or denial
of the charge and any written explanation he or she may wish to offer in
connection with the alleged misconduct.
(2) After the expiration of the said period the Director-General concerned
may appoint a board of enquiry to investigate the charge in question.
(3) A board of enquiry may subpoena any person as a witness and administer an
oath to a person so subpoenaed or, in lieu thereof, accept an affirmation from
him or her.
(4) At the investigation of any charge in terms of this section, the law
relating to evidence and witnesses as applicable in connection with criminal
proceedings in a magistrate's court, except the proviso to section 217(1) of
the Criminal Procedure Act, 1977 (Act No. 51 of 1977), shall, subject to the
provisions of this Act, apply.
(5) Where a member is charged with misconduct which constitutes an offence in
respect of which he or she has been convicted by a court of law, a certified
copy of the record of the trial in question shall, on its mere production by
any person, be admissible in evidence before the board of enquiry
investigating the charge, and a certified copy of the charge and conviction in
question shall, on its mere production by any person to such board, be prima
facie proof of the commission of such offence by the member concerned.
(6) After considering the evidence adduced at the enquiry and affording the
member charged or another member referred to in section 16 assisting or
representing him or her an opportunity of addressing the board of enquiry, the
board shall find the member charged guilty or not guilty of the misconduct
with which he or she has been charged and inform him or her of its finding:
Provided that if the member charged admits, pursuant to a request under
subsection (1) or to the board, that he or she is guilty of the misconduct in
question, he or she may be found guilty without any evidence having been
adduced.
(7) A member found guilty of misconduct may, within such period and in such
manner as may be prescribed, appeal to the Deputy President or the Minister
against the finding of the board of enquiry and make representations in
writing to the Deputy President or the Minister in regard to the imposition of
punishment.
(8) The board of enquiry shall and the Director-General concerned may make
recommendations to the Deputy President or the Minister regarding the
punishment which may be imposed upon a member found guilty.
(9) The Deputy President or the Minister may, after considering the record of
the proceedings before the board of enquiry and the recommendations of the
board, and the recommendations of the Director-General concerned and the
grounds of appeal of, and any representations made by, the member charged,
direct that the conviction and sentence be set aside, or confirm the
conviction on any charge and-
(a) direct that no further action be taken in the matter;
(b) direct that the member concerned be cautioned or reprimanded;
(c) impose upon the member concerned a fine not exceeding the amount
determined from time to time by the Deputy President or the Minister
by regulation, and which may be recovered by way of deductions from
his or her salary or allowances;
(d) direct that his or her salary, rank or grade or both his or her
salary and rank or grade be reduced to such extent as may be
recommended;
(e) direct that the member be called upon to resign from the Agency or
the Service, as the case may be, from a date specified by the Deputy
President or the Minister; or discharge the member from the Agency or
the Service, as the case may be, from a date specified by the Deputy
President or the Minister.
Representation at Board of Enquiry
16. Any member may-
(a) with respect to his or her appearance before a board of enquiry
referred to in section 15;
(b) with respect to an investigation held in terms of sections 10 and
11; and
(c) with respect to any other investigation held in terms of this Act
and as a consequence of which a decision or finding that may be
prejudicial to his or her rights may be made,
be represented and assisted only by another member: Provided that if
there is no member who satisfies the requirements for a degree
entitling him or her to admission as an attorney in terms of the
Attorneys Act, 1979 (Act No. 53 of 1979), or as an advocate in terms
of the Admission of Advocates Act, 1964 (Act No. 74 of 1964), and who
is available and prepared to represent and assist the member, that
particular member, should he or she so insist, shall be entitled to
legal representation by a person from outside the Agency or the
Service, as the case may be: Provided further that the Deputy
President or the Minister may make regulations which he or she deems
necessary and advisable to protect intelligence, information and
documents in the possession or under the control of the Agency or the
Service, as the case may be, from unauthorised disclosure and which
shall also apply to the said legal representative from outside the
Agency or the Service.
Suspension of members
17. (1) A member may be suspended from his or her office on full salary and
benefits pending his or her trial or after his or her conviction of any
offence, whether under this Act or otherwise, or pending any enquiry at which
a charge of misconduct against him or her or his or her fitness to remain in
the Agency or the Service, as the case may be, or to retain his or her rank or
grade is being investigated, and shall be so suspended during any period
during which he or she is under arrest or detention or is serving a term of
imprisonment, but shall not by reason of such suspension cease to be a member.
(2) During the suspension of a member his or her powers, functions and
authority as such a member shall be in abeyance, but he or she shall continue
to be subject to the same duties and discipline as if he or she had not been
suspended.
(3) The suspension of a member may be terminated at any time.
(4) The suspension or the termination of the suspension of a member shall
take place on the instructions of the Deputy President or the Minister or, as
a provisional measure pending the decision of the Deputy President or the
Minister, on the instructions of the Director-General concerned.
Manner in which notice may be given or process served
18. If by this Act it is provided-
(a) that any notice, statement or other document is to be given or
supplied to or served upon any person or that any matter is to be or
may be conveyed to any person in writing, the notice, statement,
document or writing may be sent by post in a registered letter or be
delivered to him or her or left at his or her last known place of
residence; or
(b) that any person is to be informed of any decision or finding, he
or she may be informed thereof verbally or by writing sent by post in
a registered letter or delivered to him or her or left at his or her
last known place of residence.
CHAPTER IV
General
Whole time of members to be at disposal of State
19. (1) Unless otherwise provided in this Act-
(a) every member shall place the whole of his or her time at the
disposal of the State;
(b) no member shall perform or engage himself or herself to perform
any remunerative work outside his or her employment; and
(c) no member may claim as of right additional remuneration in respect
of any official duty or work which he or she is required by a
competent authority to perform.
(2) Notwithstanding the provisions of subsection (1), the Deputy President or
the Minister may grant permission to a member to perform or engage himself or
herself to perform remunerative work outside his or her employment.
(3) (a) Where a member receives any remuneration, allowance or other reward
whatsoever in connection with the performance of his or her work, otherwise
than in accordance with the provisions of this Act or in contravention of the
provisions of subsection (1)(b), such member shall pay to the Agency or the
Service, as the case may be, 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, and if he or
she does not do so, such Director-General may recover it from him or her by
way of legal proceedings or in such manner as such Director-General may deem
fit: Provided that-
(i) there shall be a right of appeal to the Deputy President or
the Minister against that determination by the Director-General;
and
(ii) the Deputy President or the Minister may approve the
retaining by a member of the whole or a portion of that
remuneration, allowance or reward.
(b) Where in the opinion of the Director-General concerned a member
has received any remuneration, allowance or other reward as
contemplated in paragraph (a) and it 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 or her behalf or, if it is money, has been
deposited in any bank, the post office savings bank or any building
society or other financial institution in his or her name or in the
name of some other person on his or her behalf, such Director-General
may in writing require such member or such other person or such bank,
the post office or such building society 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.
(4) Any salary, allowance, fee, bonus or honorarium which may be payable in
respect of the service of a member seconded to any other government or any
other authority or to any board, institution or body in terms of section
12(2), shall be paid to the Agency or the Service, as the case may be:
Provided that in special circumstances the Deputy President or the Minister
may approve the payment to such member of an amount equal to the said salary,
allowance, fee, bonus or honorarium, or a portion thereof.
Reward for extraordinary diligence or devotion
20. The Director-General concerned may, with the approval of the Deputy
President or 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
such a member, such monetary or other reward as he or she considers
appropriate in the circumstances.
Establishment of decorations and medals for members
21. The Deputy President or 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 such a member or to any other person who has
rendered exceptional services to the Agency or the Service.
Offences
22. (1) Any person-
(a) not being a member, who-
(i) by words, conduct or demeanour pretends that he or she is such
a member;
(ii) pursuades any member to omit to carry out his or her duty or
to do any act in conflict with his or her duty; or
(iii) is an accomplice to the commission of any act whereby any
lawful order given to a member or any regulation may be evaded;
(b) 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 attended, refuses to answer all questions
lawfully put to him or her;
(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;
(d) who unlawfully and intentionally violates a provision of the
regulations mentioned in the second proviso to section 16;
(e) who fails to comply with a requirement in terms of section
19(3)(b); 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
so 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 indicate 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;
(h) who enters upon or is on or in any premises in contravention of
any prohibition or restriction under section 24, shall be guilty of an
offence.
(2) Any person convicted of an offence under this Act shall be liable-
(a) in the case of a contravention of subsection (1) (a) or (b) to a
fine, or to imprisonment for a period not exceeding six months;
(b) in the case of a contravention of subsection (1)(c) to the
penalties prescribed by law for perjury;
(c) in the case of a contravention of subsection (1)(d), (e) or (f) to
a fine, or to imprisonment for a period not exceeding one year;
(d) in the case of a contravention of subsection (1)(g) to a fine, or
to imprisonment for a period not exceeding two years;
(e) in the case of a contravention of subsection (1)(h) to a fine, or
to imprisonment for a period not exceeding 15 years.
Extra-territorial application of Act, and jurisdiction
23. (1) Any act constituting an offence or misconduct under this Act and
which is committed outside the Republic by any South African citizen or any
person domiciled in the Republic shall be deemed to have been committed also
in the Republic.
(2) Any offence or misconduct under this Act shall, for the purposes of
determining the jurisdiction of a court or board of enquiry to try the offence
or misconduct, be deemed to have been committed at a place where it actually
was committed and also at any place where the accused or person concerned
happens to be.
Prohibition of access to premises
24. (1) The Deputy President or the Minister may by notice in the Gazette or
in any other manner which he or she deems sufficient in the circumstances,
prohibit or restrict access to any premises under the control of the Agency or
the Service.
(2) The Deputy President or the Minister may take or cause to be taken such
measures as he or she deems necessary for the security of, or the application
of a prohibition of or a restriction on access to, such premises, and may in
connection with any measures so taken cause such notices to be published or
such warning notices to be erected as he or she may in each particular case
deem necessary.
Canteens
25. (1) Notwithstanding anything to the contrary contained in any other law,
the Deputy President or the Minister may establish canteens for the Agency or
the Service and for the organisational components thereof.
(2) The production of an official document signed by the Deputy President or
the Minister and indicating that he or she has established a canteen for the
purposes of this section, shall be conclusive proof that it is a canteen
falling under this section.
(3) For the purposes of this section "canteen" includes any mess, pub or
institution of the Agency or the Service or any premises temporarily or
permanently used for providing recreation, refreshments or necessaries 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.
Limitation of actions, notification of proceedings and cause of action, and
service el of certain process
26. (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 month before it is instituted.
(2) If any notice contemplated in subsection (1) is given to the
Director-General concerned, it shall be deemed to be notification to the
defendant concerned.
(3) Any process by which any proceedings contemplated in subsection (1) is
instituted and in which the Deputy President or the Minister is the defendant
or respondent, may be served on the Director-General concerned.
Missing members
27. (1) If a member is missing and the Director-General concerned 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 Agency or the Service, as the case may be, from
the first day after the day on which such absence commenced until the day on
which he or she again reports for duty or, in the opinion of the
Director-General concerned, should have so reported, or a competent court
issued an order whereby the death of such member is presumed.
(2) The salary or wages and allowances accruing to a member during his or her
absence contemplated in subsection (1) shall, subject to the provisions of
subsection (4), be paid to his or her spouse or, if he or she has no spouse,
to his or her other dependants, or to any person who, in the opinion of the
Director-General concerned, is competent to receive and administer such salary
or wages and allowances on behalf of his or her spouse or such other
dependants.
(3) Payment of any salary or wages and allowances in terms of subsection (2)
shall for all purposes be deemed to be payment thereof to the member
concerned, and an amount so paid shall not be recoverable by the State from
any person.
(4) Notwithstanding the provisions of subsection (2) the Director-General
concerned may in his or her discretion direct that only a portion of the
salary or wages and allowances of a member be paid in terms of the said
subsection or that no portion thereof be so paid.
Exemption from training and compulsory service in National Defence Force and
South African Police Service
28. (1) The provisions of the Defence Act, 1957 (Act No. 44 of 1957),
relating to service or the liability to undergo training shall not apply to
any member of the Agency or the Service.
(2) The provisions of the Police Act, 1958 (Act No. 7 of 1958), relating to
the establishment or functioning of, or service or training in, the Police
Reserve, shall not apply to any member of the Agency or the Service.
(3) (a) Notwithstanding the provisions of subsections (1) and (2), the Deputy
President or the Minister may, in the event of war or when, in his or her
opinion, a state of emergency exists, and having regard to the requirements of
the Agency and the Service, second any member for service or training in the
National Defence Force or the South African Police Service.
(b) A member shall, while so seconded for service or training, be
subject to the discipline, command and control applicable to the
National Defence Force or the South African Police Service, as the
case may be, but shall not thereby be exempted from the application of
the provisions of this Act.
Regulations
29. (1) The Deputy President or the Minister may make regulations as to-
(a) the employment, training, promotion, posting, transfer, leave of
absence, resignation, discharge, dismissal, suspension or reduction in
rank or grade of members and the personnel management of those members
in general;
(b) the standards of physical and mental fitness and the medical
examination of members, and the medical, dental and hospital
treatment of such members and their families;
(c) the provision of medical, dental and hospital treatment of members
who have retired on pension, and their families and of the families of
members who have died or die;
(d) the numerical establishment of the Agency or the Service, 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 Agency and
the Service;
(e) the establishment and maintenance of training institutions or
centres for members, and the instruction, training, discipline and
control of such members at such institutions or centres; the
definition of offences against duty and discipline and, generally, the
control and discipline of the Agency and the Service;
(g) the deductions to be made from the salaries, wages or allowances
of members;
(h) the assembly of boards of enquiry appointed under this Act, the
procedure at the proceedings of such boards and the attendance of
witnesses thereat;
(i) the charging of members with misconduct;
(j) appeals in terms of this Act;
(k) the provision of stores, accessories, other equipment and means of
transport required for the Agency and the Service, and the care, safe
custody and maintenance thereof;
(l) the exercise of their powers and the performance of their
functions by members;
(m) the design, award, use, care, loss, forfeiture and restoration of
any decoration or medal established or introduced in terms of this
Act, and its bar, clasp or ribbon;
(n) returns, registers, records, books, forms, other documents and
correspondence relating to the Agency and the Service;
(o) the recovery from a member of any deficiency, loss, damage or
expense which he or she has unlawfully caused to the State;
(p) the establishment and conduct, and the control of the funds, of
canteens contemplated in section 25;
(q) the control of funds collected or received by members for the
benefit of members or ex-members, or their dependants;
(r) the general management and maintenance of the Agency and the
Service;
(s) the retention of rank on retirement or resignation from the Agency
or the Service and the award of honorary ranks;
(t) the control over and administration of funds appropriated for the
Agency or the Service in order to bring about the systematic and
orderly management thereof and to promote efficiency and economy in
the utilisation thereof;
(u) the regulation of labour relations and the creation of
accompanying structures;
(v) the conditions for and procedures regarding the permission of
access to any premises under the control of the Agency or the Service
and matters relating thereto;
(w) a code of conduct to be adhered to by members;
(x) the establishment of procedures regarding the presentation,
consideration and adjudication of grievances of members;
(y) any matter which in terms of this Act shall or may be prescribed;
(z) generally, all matters which are necessary or expedient to
prescribe in order that the purposes of this Act may be achieved.
(2) Different regulations may be made with reference to different categories
of members.
(3) A regulation relating to conditions of service of members may be applied
also to persons who were members but who had ceased to be members not more
than two years previously, calculated from the date on which the regulation
concerned is so applied: Provided that such a regulation shall not apply in
respect of a particular person if it would be to his or her detriment.
(4) Regulations under subsection (1) (c) may provide for benefits in respect
of medical, dental and hospital treatment of members who have retired on
pension and their families and of the families of members who have died on the
same basis on which provision therefor is made for members and their families.
(5) A regulation made in terms of this section with reference to members need
not be published in the Gazette but shall be notified to members to whom it
applies in such manner as the Deputy President or the Minister may determine.
Discoveries, inventions and improvements by members
30. (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, shall vest in the Agency or the Service, as the case
may be.
(2) The Deputy President or the Minister may make the discoveries, inven-
tions and improvements referred to in subsection (1) available for use in the
public interest subject to such conditions and the payment of such fees or
royalties as the Deputy President or the Minister may determine.
(3) If the rights in any discovery, invention or improvement vest in the
Agency or the Service in terms of subsection (1), the Deputy President or 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 Deputy President or
the Minister may determine with the concurrence of the Minister of Finance.
(4) The Deputy President or the Minister may apply for a patent in the name
of the Agency or the Service, as the case my be, in respect of any discovery,
invention or improvement referred to in subsection (1), and the Agency or the
Service, as the case may be, shall for the purposes of the Patents Act, 1978
(Act No. 57 of 1978), be regarded as the assignee of the discoverer or
inventor concerned.
Advisory Board
31. The President shall for such period as he may determine appoint the
heads of the organisational components contemplated in section 3 to form an
advisory board, on such conditions and remuneration (if any) prescribed by him
or her, to advise him or her on the exercise of his or her powers under
section 3 and matters relating thereto, and to advise the Director-General
concerned on the exercise of his or her powers under section 4 and matters
relating thereto.
Repeal of laws, and savings
32. (1) Subject to the provisions of subsection (2) the laws mentioned in
the Schedule are hereby repealed or amended to the extent indicated in the
third column thereof.
(2) Subject to section 3(2)(f) anything done under any provision of a law
repealed in terms of subsection (1) and which could have been done under a
provision of this Act, shall be deemed to have been done under the latter
provision.
(3) All assets, liabilities, rights and duties including funds, resources and
administrative records of a Service, Department or government establishment
which ceases to exist by virtue of subsection (1) shall vest in the Agency or
the Service, as the case may be, and shall be deemed to have been acquired or
incurred by the Agency or the Service, as the case may be, under the
provisions of this Act.
(4) A registrar of deeds shall, upon the production to him or her of a
certificate by the Deputy President or the Minister that immovable property
described in the certificate vests in the Agency or the Service in terms of
subsection (3), make such entries and endorsements as he and 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 (3).
(5) No duty, office fee or other charge shall be payable in respect of any
entry or endorsement in terms of subsection (4).
(6) If an enquiry into alleged improper conduct instituted in terms of a law
repealed by subsection (1), has not been concluded at the commencement of this
Act, such proceedings shall be continued and concluded in accordance with the
provisions of the relevant law in terms of which the enquiry has been
instituted, as if such law had not been repealed.
(7) Notwithstanding the provisions of subsection (1) disciplinary proceedings
may be instituted and concluded in terms of this Act against any person who at
any time prior to the commencement of this Act is alleged to have committed an
act which may have constituted improper conduct in terms of a law repealed by
subsection (1) or any regulation or rule made thereunder: Provided that no
proceedings shall be so instituted unless the act concerned is substantially
the same as an act constituting improper conduct in terms of this Act.
Short title and commencement
33. This Act shall be called the Intelligence Services Act, 1994, and shall
come into operation on a date fixed by the President by proclamation in the
Gazette.
PLEASE NOTE! DETAILS SET OUT AS FOLLOWS;
1. No. and year of law.
2. Short title.
3. Extent of repeal or amendment.
SCHEDULE
Laws repealed or amended (Section 32)
1. No. and year of law Act No. 81 of 1969 (Republic of South Africa)
2. Short title Security Services Special Account Act, 1969
3. Extent of repeal or amendment
1. The substitution for section 2 of the following section:
"Payments from account
2. The moneys in the account shall be utilised for the defraying of expenses
in connection with-
(a) the performance of the function and the duty of the National
Intelligence **Service**[[ Agency and the South African Secret
Service]] as referred to in **section 2 of** the **Security
Intelligence and State Security Council Act, 1972(Act No. 64 of
1972)** [[National Strategic Intelligence Act, 1994]]; and
(b) the organisation of, the exercising of the powers and the
performance of the duties and functions of any member of, the
exercising of the powers of the [[President or the]] responsible
[[Executive Deputy President or]] Minister in relation to the
superintendence and control of, and the action by and functioning of,
the **National Intelligence Service as referred to in the Bureau for
State Security Act, 1978 (Act No. 104 of 1978)** [[Agency and the
Service as defined in section I of the Intelligence Services Act,
1994]], and matters in connection therewith which the said
[[President, Executive Deputy President or]] Minister, [[as the case
may be]], may from time to time approve as being in the national
interest, and shall be paid out subject to the directions of the said
President, Executive Deputy President or Minister, as the case may
be.".
2. The amendment of section 3 by the insertion after the word "Intelligence"
of the words "Agency and the Director-General: South African Secret".
3. The substitution for section 5 of the following section: "Investment of
balances
5. Moneys standing to the credit of the account which are not required for
immediate use or as a reasonable working balance, may be invested in such
manner as may be determined by the [[President, Executive Deputy President]]
or Minister responsible for the National Intelligence [[Agency or the South
African Secret]] Service **in consultation** with [[the concurrence of]] the
Minister **for State Expenditure** [[of Finance]].".
1. No. and year of law Act No. 57 of 1973 (Republic of South Africa)
2. Short title Government Service Pension Act, 1973
3. Extent of repeal or amendment
1. The amendment of section 1-
(a) by the insertion after the definition of "Administrator" of the
following definition: [[" 'Agency' means the Agency as defined in
section 1 of the Intelligence Services Act, 1994;]]";
(b) by the deletion of the definition of "Bureau";
(c) by the substitution for the definition of "police force" of the
following definition: " 'police force' means the Force referred to in
section 2 of the Police Act, 1958 (Act No. 7 of 1958), with the
exception of members of the Police Reserve of Officers or the Reserve
Police Force and special constables, and includes persons employed in
the **Bureau** [[Agency or the Service]];"; and
(d) by the insertion after the definition of "revenue" of the
following definition: [[" 'Service' means the Service as defined in
section 1 of the Intelligence Services Act, 1994]];".
2. The amendment of section 6 by the substitution in subsection (6) in the
words preceding paragraph (a) and in paragraph (a), for the word "Bureau" of
the words "Agency or the Service".
3. The amendment of section 17 by the substitution for subsection (6) of the
following subsection:
"(6) The regulations contemplated in this section shall be made by the
Minister with the concurrence of the Minister of Finance and after
consultation with the **Administrators** [[Premiers]] and the [[President,
Executive Deputy President or]] Minister, responsible for the **Bureau**
[[Agency or the Service, the Public Service]] Commission **for
Administration**, the **permanent force, the police force** [[National Defence
Force, the South African Police Service]], the prisons service, National
Education and Posts and Telecommunications.".
1. No. year of law Act No. 56 of 1978 (Republic of South Africa)
2. Short title Secret Services Act, 1978
3. Extent ot repeal of amendment 1. The amendment of section 1-
(a) by the substitution for the definition of "responsible Minister"
of the following definition: "'responsible Executive Deputy
President or Minister', in relation to any matter referred to in this
Act, means the Executive Deputy President or Minister responsible
for the department of State under which that matter falls;"; and (b)
by the substitution in the definition of "secret service" for the
words "responsible Minister" of the words "President or the
responsible Executive Deputy President or Minister".
2. The amendment of section 2 by the substitution in subsection (2)(a) for
the words "responsible Minister" of the words "President or the responsible
Executive Deputy President or Minister".
3. The amendment of section 3A by the substitution in subsection (8)(a) for
the words "a responsible Minister" of the words "the President or the
responsible Executive Deputy President or Minister".
4. The amendment of section 3B by the substitution in subsection (1) for the
words "responsible Minister" of the words "President or the responsible
Executive Deputy President or Minister".
1. No. and year of law Act No. 104 of 1978 (Republic of South Africa) Act
No. 84 of 1982 (Republic of South Africa)
2. Short title Bureau for State Security Act, 1982
3. Extent of repeal or amendment Protection of Information Act, 1982
The repeal of the whole.
The amendment of section I by the substitution for the definition of
"security matter" of the following definition:
"'security matter' includes any matter which is dealt with by the **National
Intelligence Service** [[Agency or the Service as defined in section 1 of the
Intelligence Services Act, 1994,]] or which relates to the functions of that
[[Agency]] or Service or to the relationship existing between any person and
1. No and year of law Act No. 127 of 1992 (Republic of South Africa)
2. Short title Intercepting and Monitoring Prohibition Act, 1992
3. Extent of repeal of amendment
1. The amendment of section 1-
(a) by the insertion before the definition of "division" of the
following definition:[[" 'Agency' means the Agency as defined in
section 1 of the Intelligence Services Act, 1994]];"; and
(b) by the insertion after the definition of "serious offence" of the
following definition: [[ Service' means the Service as defined in
section 1 of the Intelligence Services Act, 1994]];".
2. The amendment of section 3 by the substitution for paragraph (c) of
subsection (2) of the following paragraph:
"(c) for the purposes of subsection (1)(b)(ii) or subsection (4), be
made by a member as defined in section 1 of the **Bureau for State
Security Act, 1978 (Act No. 104 of 1978)** [[Intelligence Services
Act, 1994,]] provided the member concerned obtained in advance the
approval of another member of the **National Intelligence Service**
[[Agency or the Service, as the case may be,]] holding a post of at
least chief director.".
3. The amendment of section 4-
(a) by the substitution in subsection (1) for the words "National
Intelligence" of the words "Agency or the"; and
(b) by the substitution in subsection (2)(b)(ii) for the words
"National Intelligence" of the words "Agency or the".
4. The amendment of section 5 by the substitution in subsection (2) for the
words "Chief of the National Intelligence" of the words "Director-General of
the Agency or the".
1. No. year of law Proclamation No. 103 of 1994
2. Short title Public Service Act, 1994
3. Extent of repeal or amendment.
1. The amendment of section 1-
(a) by the insertion in subsection (1) before the definition of
"agreement" of the following definition: [[" 'Agency' means the
Agency as defined in section I of the Intelligence Services Act,
1994]];";
(b) by the insertion in subsection (1) after the definition of "scale"
of the following definition: [[" 'Service' means the Service as
defined in section I of the Intelligence Services Act, 1994]];"; and
(c) by the deletion in subsection (1) of the definition of "the
National Intelligence Services".
2. The amendment of the Act by the substiution for the words "National
Intelligence Serices", wherever they occur, of the words "Agency or the
Service".
3. The amendment of Schedule I-
(a) by the deletion in Columns I and II of the words "Department of
National Intelligence Services/Director-General: National
Intelligence Services"; and
(b) by the insertion in Columns I and 11 after the words "National
Defence Force/Chief of the National Defence Force" of the words
"National Intelligence Agency/ Director-General: National
Intelligence Agency" and "South African Secret
Service/Director-General: South African Secret Service".
1. No. and year of law Act No. 27 of 1981 (Republic of Bophuthatswana
2. Short title National Security Council Act, 1981
3. Extent of repeal or amendment The repeal of the whole.
1. No. and year of law Act No. 25 of 1982 (Republic of Bophuthatswana)
2. Short title Bophuthatswana Internal Intelligence Service Act, 1982
3. Extent of repeal or amendment The repeal of the whole.
1. No. and year of law Act o. 7 o 7 Republic of Transkei)
2. Short title Intelligence Service and State Security Council Act, 1987
3. Extent of repeal or amendment The repeal of the whole.
1. No. and year of law Act No. 31 of 1988 (Republic of Venda)
2. Short title National Intelligence Service Act, 1988
3. Extent of repeal of amendment The repeal of the whole.
1. No. and year of law Act No. 1 of 1991 (Republic of Ciskei)
2. Short title Ciskei Intelligence Service Decree, 1991
3. Extent of repeal or amendment The repeal of the whole.
SOUTH AFRICAN INTELLIGENCE