MINISTER MTHETHWA ANNOUNCES A REVIEW PROCESS OF THE NATIONAL KEY POINTS ACT

PARLIAMENT, CAPE TOWN - 08 November 2013.  Government has commenced with the development of a policy document on National Key Points that will provide clarity on the declaration of a National Key Point, with an intention of addressing misconceptions and guide the review of the Act.

The review of the Act will include a public consultation process which will commence in early 2014 and will culminate in the tabling of the list of all National Key Points at the Joint Standing Committee on Intelligence.

This announcement was made in Parliament today by the Minister of Police, Nathi Mthethwa as he presented the findings and recommendations of the Advisory Committee he appointed in May this year, as provided for in terms of Section 6 (1) of the National Key Points Act.  The Committee was led by Advocate Hamilton Maenetje (external legal Counsel), a representative from the Department of Justice and Constitutional Development as well as the Civilian Secretariat for Police. 

"The National Key Points Act has been criticized in the recent past for being based on old apartheid legislation.  It also became clear to us that this Act needed to be revised for various reasons, key amongst these is the need to align it with the Constitution and other more recent legislations.  In addition there has been criticism that the actual use of the Act to address infrastructure security is in appropriate," stated the Minister.

"To address both the criticism of the Act as well as its current application, during our Budget Vote debate in May this year I announced that I had appointed a Committee to look at the Act, audit current key points and to then advise me on the way forward.  The Committee has finalised its audit and presented their report to me."

"The Committee's scope of consultation and review focused on both local and international practices and approaches, because in the main the maintenance of National Key Points is not a unique trend to South Africa but an international practice, at both developing and developed economies," he stated.

With regard to the actual declaration of National Key Points the Committee audited 200 sites and these included amongst others electricity, energy, petrochemical, communication, financial, land administration as well as critical research facilities to mention but a few.

The Minister stated that in addition to the development of a policy, the Committee highlighted that internationally, there is a need to identify, prioritise and protect what has been broadly defined as critical infrastructure.  This matter has received increasing attention in almost all governments globally. 

"This increased focus and attention has been as a result of the recognition that the destabilisation of critical infrastructure, be it physical or virtual, can and will have both economic and social consequences for countries."

We have observed some misrepresentations particularly by some members of various political parties and the processes surrounding the key points, much of which have not been entirely accurate. Some of the fundamental observations which the Committee discovered during their audit are that:

Military facilities are governed under the Defence Act, 2002 (Act No. 42 of 2002) and are, therefore, not required to be declared National Key Points. 

Prison facilities fall under the Correctional Service Act, 1998 (Act No. 111 of 1998) and are also not required to be declared National Key Points.

There are no restrictions under the National Key Point Act that prevent people from gathering next to National Key Points, although other relevant legislation may regulate such gatherings.

There are designated areas and sites which have been declared and in some cases the declaration does not cover the entire site. For example, the declaration in respect of airports only applies to designated areas and not the entire airport.

"One of the issues which have dominated public discourse was the call to publicise the actual list of National Key Points.  The Committee, after reviewing this call found that international approaches to critical infrastructure do not necessarily involve the publication of lists of critical infrastructure.  In fact most countries do report through certain Parliamentary processes on their critical infrastructure.  What is important to note though is that these countries do not generally publish the lists of their critical infrastructure."

In mapping a way forward there are certain key recommendations made by the Committee that government will be addressing:

The sensitivity surrounding all security issues and the transparency requirements of a constitutional democracy compels government to take into account the various international models when crafting new legislation.

The processes involved in the declaration and categorisation of critical infrastructure need to comply with constitutional principles.  For this purpose, it is proposed that a Ministerial Committee and an Interdepartmental Committee be established to deal with these matters and that specific functions be clearly allocated to each Committee.

The Ministerial Committee and Interdepartmental Committee will advise the Minister of Police on both the suitability of declaring a site as well as the categorisation.  Categorisation into certain categories may be delegated to the Ministerial Committee or Interdepartmental Committee.

Legislation must enable the Minister of Police to set minimum standards of security and protection, including physical resources standards for the various categories, training standards for security guards in the various categories as well as other criteria and standards applicable to the critical infrastructure.

Provision must be made for the tabling of the list of National Key Points with the Joint Standing Committee on Intelligence and must provide the basis for Parliamentary oversight.

A clear policy should be developed and made publicly available that would not only guide an approach to the protection of critical infrastructure but also provide public clarity on issues without having to publish a list of such infrastructure.  This approach is adopted in a number of countries.

The protection of critical infrastructure is deemed necessary not only from possible commonly identified physical threats, such as terrorism but also from other potential threats including organised and cyber-crime and national disasters.

"In fact international research also highlights that the security environment is increasingly fluid and that the security environment has also expanded to include non-traditional threats such as threats posed by organised criminals and even cyber criminals.  That is why we welcomed and adopted these findings and work is under way to implement them within the mentioned time frames," concluded the Minister.

Statement issued by Zweli Mnisi, Spokesperson to the Minister of Police, November 8 2013

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