“The IGI (Inspector-General for Intelligence) found that SAPS-CI (crime intelligence) viewed post-surveillance notification order as problematic, resulting in non-compliance,” says the Joint Standing Committee on Intelligence (JSCI) report on the 2023/24 financial year published four working days before the end of the current Parliament’s term on the eve of the 29 May elections.

For the State Security Agency (SSA) the IGI also found “failure to provide post-surveillance notification to targets of lawful interceptions, in transgression of court ruling and read-in provisions”.

This report follows days after the 2022/23 JSCI report was published — a year late. While the JSCI is now up to date, its reports while published in the Announcements, Tablings and Committee Reports (ATC) remain without standing because the House has not adopted them.

But the SSA and police crime intelligence contravention of the interception law was but one in a series of unlawful acts.

The SSA conducted “unlawful intelligence activity related to a registered undercover project”, according to IGI Imtiaz Fazel whose list of SAPS crime intelligence unlawful activities was longer and included “prima facie evidence of unlawful and criminal conduct in operations of undercover units”, abuse of the Secret Services Account by a unit in KwaZulu-Natal and the “possession of listed devices such as grabbers without the certificate of exemption”.

A contributing factor in such police crime intelligence unlawfulness was inadequate regulation. “(T)he internal operational policies were outdated and had not been reviewed since 2015. The policy instruments were in draft format…” it emerges in this JSCI 2023/24 financial year report.

This continuing unlawful conduct must raise questions over commitment to clean governance, given the longstanding concerns over the intelligence services’ politicisation, malfeasance and excessive secrecy as, emerged from the 2018 High Level Review Panel on the SSA and the 2022 Sandy Africa panel on the July 2021 violence.

Civil society organisations have cautioned about the lack of accountability by intelligence services, again as recently as in public submissions to the General Intelligence Laws Amendment Bill that was pushed through Parliament in less than six months.

During those public hearings Fazel, ultimately unsuccessfully, appealed to MPs for greater teeth during the legislative drafting of the General Intelligence Laws Amendment Bill to ensure all his recommendations were implemented.

Read more in Daily Maverick: Vague intelligence law amendments open door to ongoing abuse by State Security Agency

Whether the IGI’s current recommendations that police crime intelligence corrects its failure to provide post-surveillance notifications, specifically for journalists and lawyers, would be adhered to remains unclear from the JSCI report.

Rica ructions

This notification provision emerges from the landmark February 2021 amaBhungane Constitional Court judgement on the Regulation of Interception of Communication and Provision of Communication-related Information Act, or Rica, when South Africa’s highest court also declared unconstitutional bulk interception, or Internet traffic surveillance.

In South Africa, no interception can legally and lawfully take place outside Rica. The interception judge Bess Nkabinde, retired from the Constitutional Court, also has confirmed this, welcoming in her report to the JSCI as “commendable” the Rica review following the amaBhungane judgement. It was also necessary given the limitations of the Office of Interceptions, including “its outdated machinery”, she added in her report to the JSCI.

But while Parliament has adopted the Rica amendment legislation processed by the justice committees to give effect to the Constitutional Court judgement, that Bill has been sitting on the president’s desk for over five months now.

Coincidentally, it appears the SSA’s reluctance to apply for interception orders noted in the 2022/23 JSCI report when it applied for only one has been ditched. In the 2023/24 financial year, the SSA applied for eight new interception orders, effectively wire-taps, reapplied for five others and applied for amendments to four existing interception orders. Police crime intelligence maintained momentum, with 92 new interception applications, up from 78 the preceding year.

However, Nkabinde in her report highlighted these numbers were significantly down from the 622 applications for the year to December 2022.

On the financial front the intelligence services again received qualified audit opinions, according to the JSCI 2023/24 report.

Again, much of the report that’s meant to provide accountability and transparency about intelligence services is mired in continued secrecy.

The rands and cents of the irregular expenditure and wasteful and fruitless expenditure that’s key to the qualified audit opinion are redacted. Redacted even are the pages on which the SSA and police crime intelligence financials appear — “on pages xx to xx”, it says instead.

Despite SSA and police crime intelligence now able to submit almost properly drafted annual performance plans that set out targets, indicators and achievement goals — the JSCI claimed that as a result of its oversight — these intelligence services continue to fail to meet their targets.

Between the redacted blocks of performance targets and achievements for the SSA and police crime intelligence, the auditor-general says, “I could not determine achievements”.  DM