Protection of Businesses Act, 1978
R 385
Intelligence Services Act, 2002 (Act No. 65 of 2002)Intelligence Services Regulations, 2003Chapter I : General Provisions1. Preliminary |
| 1) | Short Title and Commencement |
These Regulations are called the Intelligence Services Regulations, 2003.
| 2) | Definitions |
| a) | These Regulations must be read in conjunction with the Intelligence Services Act. |
| b) | In these Regulations, unless the context indicates otherwise— |
"Academy"
means the South African National Academy of Intelligence established by section 5 of the Intelligence Services Act, Act 65 of 2002;
"access control"
means the process by which access to a particular area is controlled, or restricted to authorised personnel only;
"Act"
means the Intelligence Services Act, Act 65 of 2002;
"active members"
means members who are employed by the Intelligence Services or the Academy, as the case may be, on a permanent basis and therefore exclude retired members;
"affirmative action measures"
includes but is not limited to measures designed to ensure that suitably qualified people from designated groups have equal employment opportunities and are equitably represented in all occupational categories and levels in the Intelligence Services or the Academy, as the case may be;
"applicant"
means a person or a member who applies for employment and/or another post in the Intelligence Services or the Academy, as the case may be;
"appointment"
means employment;
"approved establishment"
means the posts that the Minister has approved to carry out the core and support functions of the Intelligence Services or the Academy, as the case may be;
"basic salary"
means the salary notch applicable to a member allocated per job level range within an occupational band according to the remuneration management system approved by the Minister;
"benchmark"
means the initial evaluation of a job within the Intelligence Services or the Academy, as the case may be;
"black people"
is a generic term, which means Africans, Coloureds and Indians;
"cadet"
means a young person from a recognised tertiary institution or high school, recruited to study at the Academy but who is currently not a member;
"calendar month"
refers to all the days in a month including weekends and public holidays, from the first to the last day of the month;
"CEO"
means the Head of the Academy;
"child"
means a member’s natural child, or a stepchild or legally adopted child, who has not reached the age of 21 years, or a child who has been placed in the legal custody, recognised by law, of the member, his or her spouse or partner;
"communication security"
means direct or indirect communication;
"competence"
means the blend of knowledge, skills, behaviour and aptitude that a person applies in the working environment, which indicates the person’s ability to meet the requirements of a specific post;
"consecutive days"
means calendar days including weekends and public holidays;
"consultation service"
refers to the medical consultation service including a theatre and dispensary that provides in-house services to persons entitled to OPMED benefits;
"continuation member"
means a member, with his or her registered dependants, if any, who retains his or her membership status with OPMED without prejudice or limitation of a continued period of membership in the event of his or her retirement from the Intelligence Services or the Academy, as the case may be, or due to his or her employment being terminated by the Intelligence Services or the Academy, as the case may be, on account of reaching the retirement age, or having been declared medically unfit or due to termination of employment with a severance package, on condition that OPMED membership be retained;
"council"
means a Staff Council and Consultation Council established in terms of these Regulations;
"cover member"
means a member of the Intelligence Services or the Academy, as the case may be, whose relationship with the Intelligence Services and the Academy is completely concealed and who functions under deep cover for operational purposes in cases where there is a need for extreme liability, danger to life or a high risk for the exposure of countering activities;
"day"
means a working day;
"day of rest"
with regard to a member who does not usually work on such a day, a Saturday, Sunday or a public holiday, and in the case of a member who usually works on a Saturday, Sunday or a public holiday, any other day on which the member, instead of such a day is generally exempted from work;
"dependant"
means spouse, partner, child or parent in respect of whom the member is liable for family care and support;
| i) | for the purpose of OPMED, "dependant" refers to – |
| aa) | a spouse or partner who is not a member or dependant of another medical scheme; |
| bb) | a child; |
| cc) | a member’s child of 21 years and older, for whom the member is liable for family care and support, and who is not a member or dependant of another medical scheme; |
| dd) | a member’s child who is a student at a school or other educational institution within the Republic of South Africa, or a child of a member who is placed abroad for official purposes where the child is in a school or educational institution of that specific country, up to the age of 26 years and who is not a member or dependant of another medical scheme; |
| ee) | a member’s child who is unfit for the open labour market due to a mental or physical disability and who is not a member or dependant of another medical scheme; |
| ff) | the immediate family of a member in respect of whom the member is liable for family care and support, and who is not a member or dependant of another medical scheme; |
| gg) | such other person(s) who is (are) recognised by the OPMED management control board as a dependant(s) for purposes of the medical scheme rules; |
| ii) | for the purpose of resettlement transfers and sessional assistance within the Intelligence Services or the Academy, as the case may be, "dependant" refers to— |
| aa) | a partner or spouse of a member; |
| bb) | a child; |
| cc) | a family member who resides permanently with the member, who is dependent on such a member and who receives a total income that, from all sources, does not exceed the basic social pension; |
"designated groups"
means black people, women and people with disabilities;
"direct communication"
means —
| i) | an oral communication, other than an indirect communication, between two or more persons which occurs in the immediate presence of all the persons participating in that communication; or |
| ii) | an utterance by a person who is participating in an indirect communication, if the utterance is audible to another person who, at the time that the indirect communication occurs, is in the immediate presence of the person participating in the indirect communication; |
"Director-General"
means the head of any of the Intelligence Services;
"dispute"
includes an alleged dispute;
"document" or "documentation"
means —
| i) | any note or writing, whether produced by hand or printing, typewriting or any other similar process; |
| ii) | any copy, plan, picture, sketch, photographic or other representation of any place or article; or |
| iii) | any disc, tape, card, perforated roll or other device in which or on which sound or any signal has been recorded for reproduction; |
"employment policy"
includes, but is not limited to—
| i) | recruitment procedures, advertising and selection criteria; |
| ii) | appointment(s) and the appointment process; |
| iii) | job classification and grading; |
| iv) | remuneration, employment benefits and terms and conditions of employment; |
| v) | job description; |
| vi) | the working environment and facilities; |
| vii) | training and development; |
| viii) | performance evaluation; |
| ix) | promotion; |
| x) | transfer; |
| xi) | demotion; |
| xii) | disciplinary measures other than discharge; and |
| xiii) | discharge; |
"family care and support"
means a liability for financial support enforceable by a court of law;
"family responsibility"
means the responsibility of a member in relation to his or her spouse or partner and his or her children and/or his or her parent(s);
"financial institution"
means a legitimate registered bank or building society within the Republic of South Africa;
"fixed establishment"
means the total number of posts created for the normal and regular requirements of the Intelligence Services or the Academy, as the case may be, and any other such components that are administratively linked to the Intelligence Services or the Academy, as the case may be;
"forum"
means the Constituency Forum and Organisational Staff Forum established in terms of these Regulations;
"Guarantee Scheme"
means a guarantee issued to a financial institution in favour of a member or a collateral investment made by the Intelligence Services or the Academy, as the case may be, in favour of a member and assigned to a financial institution, to enable a member to obtain a loan for the purpose of buying property without himself or herself having due responsibility;
"gift"
means any matter, object, money, reward or favour presented to a member in his or her capacity as a member of the Intelligence Services or the Academy, as the case may be, over and above the salary and benefits payable to the member;
"grade"
means the relative value of a particular job reflected by the job weight, which is linked to a salary range in a salary scale used in the Intelligence Services or the Academy, as the case may be;
"grievance procedure"
means a process of addressing a complaint and resolving a dispute by a member against his or her supervisor or another member;
"Group Assurance Scheme"
means the Intelligence Services’ or the Academy’s, as the case may be, Group Assurance Scheme constituted and formulated by the Rules of the Group Policy applicable to the Intelligence Services or the Academy, as the case may be;
"Head Office"
is defined for the purpose of resettlement transfers as all the offices situated in the greater metropolitan area of a town or city and not an individual headquarters. Transfer from one Head Office to another office in the same metropolitan area must therefore not be regarded as a resettlement transfer;
"health care provider"
means all medical and health providers registered with the SA Medical Association and who are entitled to practise in terms of section 17 of the Health Professions Act, 1974 (Act 56 of 1974);
"HIV"
means the Human Immunodeficiency Virus;
"housing allowance"
refers to an amount payable to a member of the Intelligence Services and the Academy as a fringe benefit to assist him or her to obtain residential accommodation;
"household"
is defined as the member and his or her dependants;
"immediate family"
means a family member such as a member’s father, mother, brother, sister, spouse or partner for whom the member is liable for family care and support and who is financially dependent on the member;
"indirect communication"
means the transfer of information, including a message or any part of a message, whether—
| i) | in the form of — |
| aa) | speech, music or other sounds; |
| bb) | data; |
| cc) | text; |
| dd) | visual images, whether animated or not; |
| ee) | signals; or |
| ii) | in any other form or in any combination of forms transmitted in whole or in part by means of a postal service or a telecommunication system; |
"inherent requirements of a job"
means the requirements determined by the job as well as the competencies needed by a member in order to carry out the job;
"Intelligence Services"
means the National Intelligence Agency (NIA) and the South African Secret Services (SASS);
"internal positions"
means vacant positions advertised within the respective Intelligence Services or the Academy, as the case may be, to enable the career advancement of active members;
"internal transfer‘’
means the appointment of a member to a new or vacant position, or the transfer to another structure on a permanent basis within the same Intelligence Service or within the Academy;
"interdepartmental transfer"
means the permanent transfer of a member from any of the Intelligence Services or the Academy, as the case may be, to another Public Service Department or from one Intelligence Service or the Academy, as the case may be, to another;
"JE Manager"
means the Job Evaluation Manager System;
"job evaluation administrator"
means a member trained in the job evaluation system and appointed as such within the structure responsible for the evaluation of all the jobs within the Intelligence Services or the Academy, as the case may be;
"job evaluation facilitator’’
means a member trained in the job evaluation system and appointed by a general manager to represent the relevant structure in job evaluation and related activities;
"job evaluation"
means a process of assessing the relative worth of jobs within the Intelligence Services or the Academy, as the case may be, by applying an objective and reliable rating system;
"job weight"
means the numerical value assigned to reflect selected characteristics of a job measured by a job evaluation instrument;
"Labour Relations Act"
means the Labour Relations Act, 1995 (Act 66 of 1995);
"learnership programme"
means learnership programme as defined in the Skills Development Act, 1998 (Act 97 of 1998);
"leave cycle"
means a period of twelve months that starts from the month a member joined the Intelligence Services or the Academy, as the case may be, or in the case of a transferred member, from the date the member joined the Public Service;
"legal practitioner"
means a person who is admitted to practise as a lawyer or advocate in the Republic of South Africa;
"level"
means salary range or grade;
"manager"
means the head of a component, division or unit in the Intelligence Services or the Academy, as the case may be, and any other such components that are administratively linked to the Intelligence Services or the Academy, as the case may be, unless specific reference is made to the positional appointment as manager on the M3 level;
"medical benefits"
means benefits to which a member and his or her registered dependants are entitled to, subject to the restrictions imposed by the OPMED rules;
"medical examination"
means the medical test of an applicant in order to determine his or her medical status in relation to the requirements of a specific position;
"medical necessity"
means the norm to evaluate a health care service in order to determine whether it is medically appropriate and necessary to meet basic needs, appropriate for a given diagnosis or condition and cost-effective for the given condition; appropriate to be delivered in the designated setting, consistent with the benefits and exclusions of the medical scheme, and consistent with the type, frequency and duration of treatment with scientifically based guidelines of medical practice and quantifiable medical value;
"Medical Schemes Act"
refers to the Medical Schemes Act, 1998 (Act 131 of 1998), as amended;
"medical scheme contribution"
means the monthly amount, exclusive of interest, due by an OPMED member as his or her membership fees as well as for his or her registered dependants;
"medical scheme rules"
means the rules of OPMED including those for conducting the business of the scheme (appendixes and schedules) and any other provision relating to the benefits which may be granted, as well as the contributions due as determined and revised by the OPMED Management Control Board;
"medical test"
means any test, question, inquiry or other means designed to ascertain, or which has the effect of enabling the Director-General or the CEO, as the case may be, to ascertain, whether a member has any medical condition;
"medical unfitness"
means that currently and for the foreseeable future the member’s physical or mental condition is such that he or she cannot maintain a satisfactory level of performance or cannot perform his or her duties except with extreme pain and discomfort, or with treatment or medication that poses a risk to his or her health, and that subject to the member’s seniority and training, no reasonable alternative placement exists: Provided that this condition is of such a nature that the efficiency and effectiveness will be adversely affected for an unforeseeable period;
"member"
as contemplated in Chapter XVI and for the purpose of consultation, refers to any member of the Intelligence Services or the Academy, as the case may be, who is not a senior member or a member of the labour relations, legal services, internal audit and management services function;
"misconduct"
means misconduct as defined in Appendix A of Chapter XVIII;
"NCC"
means National Communications Centre as a spending centre of the National Intelligence Services;
"nominee"
means a person who is or was, in writing, nominated by a member as a beneficiary with regards to the Group Assurance Scheme benefits;
"official subsidised transport"
refers to official transport provided for members of the Intelligence Services or the Academy, as the case may be, who do not have transport to and from work in areas where no other means of public transport exists, to enable them to commute from a central point to and from work;
"OPMED"
means Optimum Medical Scheme;
"OPMED management committee"
means the committee that is appointed by the Intelligence Services to manage and control the OPMED Scheme;
"OPMED Management Control Board"
refers to the persons appointed and/or elected in accordance with the OPMED rules to manage and control the affairs of OPMED;
"orphan"
means the child of a deceased member of whom both parents have passed away, and who is classified as such;
"partner"
means an unmarried person irrespective of gender with whom the member has a relationship akin to marriage and who resides permanently with the member, sharing common assets;
"people with disabilities’’
means people who have a long-term or recurring physical or mental impairment which substantially limits their prospects of entry into, or advancement in, employment;
"personnel security"
means any condition created by the deliberate creation, implementation and application of security measures in order to ensure that a person who obtains access to classified information and/or restricted premises is security competent;
"physical security"
means a condition and/or situation created by the deliberate creation, implementation and application of physical security measures for the protection of lives, property and information;
"political organisation"
means a party, body or movement with political aims;
"poor performance"
means any performance which is below the appropriate standards arising from any source other than pregnancy or medical unfitness or misconduct;
"pregnancy"
means pregnancy, termination of pregnancy and any medical circumstances related to pregnancy;
"probation period"
means a period within which a member, who was appointed in a particular position, is evaluated and assessed in order to determine his or her suitability for permanent appointment;
"psychometric testing"
means the assessment of an applicant in order to determine the applicant’s suitability in terms of personality or task requirement of a specific position;
"public holiday"
means any day that is a public holiday in terms of the Public Holidays Act, 1994 (Act 36 of 1994);
"representativeness"
means the extent to which the posts filled on the fixed establishment broadly reflects the composition of the South African population, with reference to race, gender and disability;
"record of poor performance"
means any available record of a member’s previous poor performance for which he or she was found guilty in terms of Chapter XIX;
"salary range"
means a set of salaries that forms part of a salary scale linked to a specific grade and, by extension, a set of job weights;
"salary scale"
means a range of salaries from a minimum to a maximum as salary for the Intelligence Services or the Academy, as the case may be, an occupational group or a unit within the Intelligence Services or the Academy, as the case may be, with specific amounts denoted as the beginning and end of salary ranges or a fixed amount or notch;
"SCAB"
means the Security Clearance Advisory Board;
"secondment"
means the temporary transfer of a member from the Intelligence Services or the Academy, as the case may be, to another Public Service Department, from one Intelligence Service to another, from the Intelligence Services to the Academy or from the Academy to the Intelligence Services;
"security"
means any condition and/or situation created by the deliberate creation or implementation and application of security measures in order to protect persons, property or information:
"security clearance certificate"
means an official document indicating the degree of security competence of a person;
"security competence"
means the ability of a person to act in such a way that he or she does not cause classified information or material from being disclosed to an unauthorised member or person, in this way prejudicing or endangering the security or interests of the Intelligence Services, the Academy or the State;
"security competency investigating officer"
means a member of the Intelligence Services designated by the Director-General with the authority to conduct security competency investigations;
"senior member"
as contemplated in Chapter XVI, refers to any member of the Intelligence Services or the Academy, as the case may be, who functions in a post at the level of M3 to M6 and/or the equivalent posts at the S and P level;
"service documents"
means the personal handing over of documents to a member concerned by the procurator or a person assigned thereto: Provided that where all reasonable attempts to effect service have failed, a notice may be left with a suitable person at the member’s last known address, or merely left at such premises if no such person is available;
"session duty"
refers to parliamentary duty performed at the office of the Minister for the Intelligence Services in Cape Town as required by the Minister from time to time, and in accordance with the Department of Public Service and Administration’s policy on session duty;
"spending center"
refers to a structure linked to the Agency for administrative, technical and logistical support and whose accounting officer is the Director-General of the Agency, namely, the Ministry for Intelligence Services, the National Intelligence Coordinating Committee, the Presidential Support Unit, the Office of the Inspector-General of Intelligence and the National Communications Centre;
"spouse"
means the registered husband or wife of a member to whom the member is married in terms of any law or custom recognised by law in the Republic of South Africa;
"Strategic Executivanagement"
means Director-General or CEO, as the case may be, Deputy Director(s)-General and general managers within the respective Intelligence Services or the Academy, as the case may be, in terms of Chapter XVI;
"suitably qualified person"
means a person qualified for a position as a result of formal qualifications or prior learning, relevant experience or the capacity to acquire the ability to do the job within reasonable time;
"supervisor"
means the immediate supervisor of a member or member that supervises the function of the member at a given time;
"Treasury Regulations"
means the Treasury Regulations made in terms of the Public Finance Management Act, 1999 (Act 1 of 1999);
"week"
means a period of seven consecutive days;
"workplace right"
means an entitlement constituted by the applicable legislative framework and practices in the workplace;
and any other word shall have the meaning assigned thereto in the Act.
| c) | In these Regulations, if the context of circumstances so admits or. requires or unless otherwise specifically stated, the above-mentioned words and expressions shall have the meanings given to them and words importing, the singular shall be deemed to convey the plural, and vice versa. |
| 3) | Statutory Authorisation |
Section 37 of the Act authorises these Regulations.
| 4) | Scope of Application |
These Regulations apply to persons, members, and to institutions governed, in terms of the Act.
| 5) | Repeal of Regulations and Transitional Arrangements |
All intelligence Services Regulations made and in force under the Intelligence Services Act, 1994 (Act 38 of 1994) including all amendments thereof, are hereby repealed.
| ) | Any matter contemplated under the Intelligence Services Regulations issued in terms of the Intelligence Services Act, 1994 (Act 38 of 1994) that could be contemplated under any provision of these Regulations, must be deemed to have been contemplated under the relevant provision of these Regulations. |
| ii) | Despite the repeal of the Regulations, the transitional arrangements set out in Chapter XXVlll must apply. |
| 6) | Exceptional Cases |
If circumstances develop which justify deviation from the provisions and measures in these Regulations, the Minister may under stated circumstances make such determinations, issue directives or approve that alternative provisions and measures be applied.
| 7) | Official Text |
The English text is the official text of these Regulations.
