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South Africa: Controversial intelligence legislation finally introduced to Parliament

23 November 2023
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Overview

  • On 17 November 2023, the Minister in the South African Presidency responsible for national intelligence introduced the General Intelligence Laws Amendment Bill (Bill) to Parliament.
  • The Bill overhauls the legislative framework currently provided in the National Strategic Intelligence Act, the Intelligence Services Act and the Intelligence Services Oversight Act, disestablishing the State Security Agency and reconfiguring the intelligence services into the South African Intelligence Agency, the South African Intelligence Service, the National Communications Centre and the South African National Academy of Intelligence.
  • In its previous form, the draft Bill provided sweeping powers to the state security. The latest version of the Bill as introduced to Parliament is substantially tempered, but may still be overbroad.

On 17 November 2023, the Minister in the Presidency responsible for national intelligence introduced the General Intelligence Laws Amendment Bill (Bill) to Parliament.

The Bill overhauls the legislative framework currently provided in the National Strategic Intelligence Act 39 of 1994, the Intelligence Services Act 65 of 2002 and the Intelligence Services Oversight Act 40 of 1994, disestablishing the State Security Agency and reconfiguring the intelligence services into the South African Intelligence Agency, the South African Intelligence Service, the National Communications Centre and the South African National Academy of Intelligence.

In its previous form, the draft Bill provided sweeping powers to the state security apparatus, including concerning vetting requirements for, among others, non-governmental organisations and religious organisations, including churches.  It was described by constitutional law Professor Pierre de Vos as being ‘anti-democratic, and a unique mix of malice and stupidity’.

The latest version of the Bill as introduced to Parliament is substantially tempered, but may still be overbroad.

Key changes to the more controversial aspects of the draft Bill include:

  • Clarification of the definition of ‘national security’, which was previously defined as including references to the opaque concepts of ‘national interests’ and ‘national values’. While the new definition no longer refers to these concepts, it remains broad and potentially open to abuse by the State.
  • A definition of ‘potential opportunity’, which is used in the context of ‘national security’ and was previously undefined. The Bill now defines an opportunity as being ‘subject to the Bill of Rights and the principles enshrined in the Constitution, such capability measure or activity employed to pursue and advance national security in accordance with section 198 of the Constitution’. The effect of this definition is that any potential opportunity to advance national security (as defined) is a matter of national security.
  • More circumscribed categories of people or institutions are to be subjected to security competence tests, being:
    • Those who have access to classified information or critical infrastructure of the State;
    • Those who are viewed as vulnerable to blackmail, undue influence or manipulation or security compromise; or
    • Persons or institutions of national security interest (i.e. engaging in activities that are a threat to national security).