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.
SOUTH AFRICAN INTELLIGENCE