State Information Technology Agency Amendment Act, 2002

1. Section 1 of’ the State information Technology Agency Act, 1998 (hereinafter referred to as the principal Act). is hereby amended- 5 ( a ) by the insertion after the definition of “Agency” of the following definition: or services to other ‘’ ’authentication products or services‘ means products designed to identifv the holder of an electronic signature persons:”; ( b ) by the substitution for the definition of “department” of the following 10 definition: ‘‘ ‘department’ means a national department, provincial administration, provincial department or organisational component listed in Schedules 1, [and] 2 and 3 [of] to the Public Service Act, 1994 (Proclamation No. 103 for the purpose of this Act, the entity known as Infoplan of 1994),d will be regarded as a department;”; 15 (c) by the insertion after the definition of “department” of the following definitions: ‘‘ ‘electronic signature‘ means an electronic representation of informa- tion in any form which is- 20 4 No. 24029 Act No. 38,2002 GAZETTE, GOVERNMENT 7 NOVEMBER 2002 STATE INFORMATION TECHNOLOGY AGENCY AMENDMENT ACT, 2002 ( a ) attached to, incorporated in or logically associated with other electronic representations of information in any form; and (b) intended by the user to serve as a signature; ‘executing authority’ means executing authority as defined the Public Service Act, 1994;”; in section I of (d) by the substitution for the definition of “Minister” of the following definition: ‘‘ ‘Minister’ means the Minister for the Public Service and Administra- tion or any Minister appointed by the President and assigned the power in terms of sections 91(2) and 92(1) of the Constitution [1996] Republic of South Africa, shareholder on behalf of the State;”; 1996 (Act No. 108 of 1996), to be the ( e ) by the insertion after the definition of “Minister” of the following definition: ‘‘ >public body’ means- (a) Parliament or a provincial legislature; (b) a constitutional institution or public entity as defined in section 1 of the Public Finance Management Act, 1999 (Act No. 1 of 1999); or IC) a municipality contemplated in section 155(1) of the Constitu- tion;”; and __ (f) by the deletion of the definitions of “participating department” and “President”. Amendment of section 3 of Act 88 of 1998

2. Section 3 of the principal Act is hereby amended- ( a ) by the deletion of subsection (2); (b) by the insertion after subsection (4) of the following subsection: “(4A) Despite anything to the contrary in this Act- (a) any service of the Agency used immediately before the commence- 5 10 15 20 -2 5 ment of the State Information Technology Agency Amendment Act, 2002, by a department in respect of which a component initially constituted the Agency as contemplated in subsection (4), must be continued to be used by that department, unless terminated by agreement between the department and the Agency; and 30 (b) any asset of that component transferred to the Agency in terms of section 19(2) remains the asset of the Agency and the responsible department may not require the return of that asset.”; and (c) by the deletion of subsections ( 5 ) and (6). 35 Insertion of section 3A in Act 88 of 1998

3. The following section is hereby inserted after section 3 of the principal Act: “Subsidiaries 3A. (1) For purposes of achieving its ob,jects, the Agency may establish one or more subsidiary companies in terms of the Companies Act. 40 (2) A subsidiary company may, on behalf of the Agency, perform such functions as the Agency may delegate to it subject to such conditions as the Agency may impose. (3) (a) The Agency may, with the approval of the Cabinet, transfer to any person the shares of the Agency in a subsidiary company in accordance with the Companies Act. (b) The Cabinet must approve the number of shares to be transferred, the 45 transferees and the manner and terms of the transfer.“. 6 No. 24029 Act No. 38,2002 GAZETTE, GOVERNMENT 7 NOVEMBER 2002 STATE INFORMATION TECHNOLOGY AGENCY AMENDMENT ACT, 2002 Amendment of section 6 of Act 88 of 1998

4. The following section is hereby substituted for section 6 of the principal Act: “Objects of Agency information technology, information systems and related services in a maintained information systems security environment to departments and public bodies; and ( b ) to promote the efficiency of departments and public bodies through the use of information technology.”. 10 Substitution of section 7 of Act 88 of 1998

5. The following section is hereby substituted for section 7 of the principal Act: “Duties and powers of Agency 7. (1) To achieve its objects, the Agency- ( a ) must, on behalf of a department, and may, on behalf of a public body 15 which so requests in terms of subsection (4) or (5)- (i) provide or maintain a private telecommunication network or 2 value-added network service in accordance with the Telecommu- nications Act, 1996 (Act No. 103 of 1996); (ii) provide or maintain transversal information systems; and (iii) provide data-processing or associated services for transversal 20 information systems; and (6) may, on behalf of a department or public body, which so requests in training in information technology or information systems; terms of subsection (4) or ( 9 , provide- (i) (ii) application software development; (iii) maintenance services for information technology software 25 01 infrastructure; (iv) data-processing or associated services for departmentally specific (v) information technology applications or systems; technical, functional or business advice or support, or research. regarding information technology; and 30 (vi) management services for information technology or information systems. (2) For purposes of the Telecommunications Act, 1996, the provision of a private telecommunication network in terms of subsection (l)(a)(i) by thc Agency on behalf of one or more depakments or public bodies or one or more departments and public bodies, must be construed as the provision o f that network by the State for purposes principally or integrally related to the operations of the State. (3) Despite any other law to the contrary, every department must, subject to subsection (4), procure all information technology goods or services through the Agency. (3) A department that wishes to acquire a service contemplated in- ( a ) subsection (,l)(a), must- (i) acquire that service from the Agency in accordance with business and service level agreements concluded in terms of section 20; or (ii) procure that service through the Agency in terms of subsection ( 3 ) if the Agency indicates in writing that it is unable to provide the service itself; ( b ) subsection il)(bj, must either- (i) acquire that service from the Agency in accordance with business and service level agreements concluded in terms of section 20; or (ii) procure that service through the Agency in terms of subsectitrn (3). 35 10 15 50 j5 8 No. 24029 Act No. 38,2002 GAZETTE, GOVERNMENT 7 NOVEhlBER 2002 STATE INFORMATION TECHNOLOGY AGENCY AMENDMENT ACT, 2002 (5) A public body may- (a) acquire a service contemplated i n subsection (l)(a) or (17) from thc Agency; and ( b ) procure any information technology goods or services through thc Agency. (6) The Agency- (a) must set standards regarding- (i) the interoperability of information systems between departments subject to the approval of the Minister; and (ii) a comprehensive information systems security environment fol to the approval of the Minister and the departments, subject Minister of Intelligence; (b) must certify every acquisition of any information technology goods 01 services by a department for compliance with those standards; (c) may- (i) despite anything to the contrary in any other law, exclusively subject to subsection (7) sell or provide authentication products or services for all departments; (ii) on request of any public body, sell or provide authentication products or services for that public body; and (iii) apply to the relevant authority of such authentication products or services in terms of the Electronic Communications and Transactions Act, 2002 [Act No. 25 of 20021; and for the accreditation 5 10 15 20 (d) may carry out research regarding the use of information technology to 25 improve the efficiency of the public administration. (7) If the Agency decides not to provide authentication products or services for a department or public body in terms of subsection (6)(c), the department or public body must procure through the Agency those products or services from a preferred authentication service provider referred to in section 28(2) of the Electronic Communications and Transactions Act, 2002. 30 (8) In the performance of its duties and exercise of its powers, the Agency must- (a) eliminate unnecessary duplication of information technology goods or services; (b) leverage economies of scale to provide cost-effective service; and (c) comply with- (i) government policies on information management and informa- tion technology and any which give effect to any such policies; framework of norms and standards (ii) any applicable regulations made under this Act or the Public Service Act, 1994 (Proclamation No. 103 of 1994); (iii) the standards referred (iv) the Preferential Procurement Policy Framework Act, 2000 (,4ct No. 5 of 2000). to in subsection ( 5 ) ( a ) ; and (9) For purposes of protecting the security of the Republic, the Minister as of Intelligence may exempt any intelligence aervice established envisaged in section 209(1) of the Constitution from any provision of this Act.”. __ Amendment of section 10 of Act 88 of 1998

6. Section 10 of the principal Act is hereby mended- ( a ) by the substitution for subsection (1) of the following subsections: 35 10 1-5 50 “(1) The Board consists of not more than 14 members appointed in the ___ following capacities: ( a ) A non-executive Chairperson; (b) executive members, one of whom must be designated as the Managing 55 Director; (c) ndditional non-executive members, consisting of- 10 No. 24029 Act No. 38,2002 GOVERNMENT GAZETTE, 7 NOVEMBER 2002 STATE INFORMATION TECHNOLOGY AGENCY AMENDMENT ACT. 2002 (i) one person representing the Department of Public Service and Administration; (ii) one person representing the National Treasury; (iii) one person as a legal expert; and (iv) other persons on the grounds of their expertise. 5 (1 A) The majority of the members of the Board must be non-executive members. . . (IB) (a) For each non-executive member of the Board, other than the Chairperson, the Minister may appoint attend and vote at meetings of the Board on behalf of a member if that 10 member is unable to attend. an alternate member, who may (b) The term of office of an alternate member is the same as that of the non-executive member in respect of whom he or she is appointed and such alternate member vacates office if the relevant non-executive member vacates office. ( c ) The provisions of sections 11 and 12 regarding remuneration and other conditions of appointment applicable to non-executive members of the Board apply with the necessary changes to an alternate member. (1C) The Minister must designate one of the non-executive members 15 referred to in subsection (l)(c) as the Deputy Chairperson, who must act in 20 the place of the Chairperson if he or she is unable to perform his or her functions.”; and (b) by the substitution for subsection (2) of the following subsection: “(2) A majority of the [appointed Directors] non-executive members of the Board forms a quorum.”. Amendment of section 13 of Act 88 of 1998

7. Section 13 of the principal Act is hereby amended by the substitution for subsection (2) of the following subsection: - “(2) The Managing Director is accountable to the Board, and is the chief [administrative and] executive officer of the Agency.”. Amendment of section 15 of Act 88 of 1998 25 30

8. Section 15 of the principal Act is hereby amended by the substitution for subsection (1) of the following subsection: “(1) If a department or public body concludes a business agreement for the acquisition of a service contemplated in section 7(l)(a) or (b), the Agency must, on 35 the date stipulated in that agreement, make an employment offer to every practitioner of that department or public body who is responsible for information technology functions in respect of that service, unless the Agency, practitioner and department orpublic body agree otherwise.”. Amendment of section 16 of Act 88 of 1998 40

9. Section 16 of the principal Act is hereby amended-- (a) by the substitution for subsections (1) and (2) of the following subsections: “( 1) The Agency is funded from monies received for services rendered that are stipulated in the service level agreements referred to in section 20. ( 2 ) The Minister mut- . , (uJ after consultation with all executing authorities; and ( b ) subject to the approval of the Minister of Finance, determine from time to time reasonably market-related rates for establishing the cost of a service or product contemplated in section 7( 1) and (5)(c).”; ( b j by the deletion of subsection (4); (c) by the substitution in subsection ( 5 ) for the expression “an organ of state” of 50 the expression “public body”; (dj by the substitution in suhsection (8) for the expression “Department of State Expenditure” of the expression “National Treasury”; and ( e ) b\ the suhtitution for subsection (9j of the following subsection: 55 12 No. 24029 Act No. 38, 2002 GAZETTE, GOVERNMENT 7 NOVEMBER 2002 STATE INFORMATION TECHNOLOGY AGENCY AMENDMENT ACT, 2002 “(9) An auditor appointed by the Board in terms of section 58 of the Public Finance Management Act, 1999 (Act No. 1 of 1999), must audit annually the accounts, financial statements and financial management of the Agency and each of its subsidiaries.”. Substitution of section 17 of Act 88 of 1998 5 10. (1) The following section is hereby substituted for section 17 of the principal Act: “Shareholding 17. (1) Despite the Companies Act or any other law, the State is the sole shareholder of the Agency. (2) The Agency has a share capital of R1, represented by one ordinary 10 share with a nominal value of R1. (3) The Minister must exercise on behalf of the State the rights attached to the State as shareholder.”. (2) The memorandum of association of the Agency must be altered in accordance with section 17(2) of the principal Act, as amended by this Act, and lodged with the Registrar 15 of Companies who must, free of charge, register the memorandum of association so altered. Repeal of section 18 of Act 88 of 1998

11. Section 18 of the principal Act is hereby repealed. Amendment of section 19 of Act 88 of 1998 20

12. Section 19 of the principal Act is hereby amended- ( a ) by the insertion after subsection (2) of the following subsections: “(2A) If a department or public body before the acquisition from the Agency of a service contemplated in- ( a ) section 7 ( l ) ( a ) partly or fully camed out that service itself, any corporeal or incorporeal asset of that department or public body held or used in connection with that service, must be transferred to the Agency; and jh) section 7(l)(b) partly or fully carried out that service itself, such of that department or public body corporeal and incorporeal assets as agreed on by that held or used in connection with that service department or public body and the Agency, must be transferred to the Agency. . (2B) The transfer of an asset in terms of subsection (2A) must take place in accordance with an agreement between the relevant department or public body and the Agency with the approval of the Minister of Finance or the relevant member of the Executive Council responsible for finance.”; and ( 1 7 ) bythe substitution for subsection (3) of the following subsections: .‘(3) Despite any other provision of this section, the State may transfer assets to the Agency in order enhance the to further performance of the duties and the exercise of the powers of the Agency. the objects and (3A) When an corporeal or incorporeal asset is transferred in terms of time in this section, all contracts, rights and obligations existing at the respect of that asset must be assigned to the Agency. (3B) N o transfer duty, stamp duty, registration fee or any other duty, fee, levy or tax imposed by law are payable in respect of any transfer in trrms of this section.”. 40 45 GAZETTE, GOVERNMENT 24029 14 No. Act No. 38,2002 STATE INFORMATLON TECHNOLOGY AGENCY AMENDMENT ACT. 2002 7 NOVEMBER 2002 Substitution of section 20 of Act 88 of 1998

13. The following section is hereby substituted for section 20 of the principal Act: “Business and service level agreements 20. (1) (a) Every department must conclude a business agreement with the Agency to regulate their relationship for purposes of- (i) (ii) the services contemplated in section 7( l ) ( a ) ; and those services contemplated in section 7 ( l ) ( b ) that it intends to use. (b) A public body must conclude a business agreement with the Agency in respect of those services contemplated in section 7( l)(a) and (b) that it intends to use. (c) The Minister must prescribe the compulsory terms of the business 5 10 agreement by regulation in terms of section 23. (2) A department or public body and the Agency must conclude a service level agreement to support the business agreement concluded in terms of subsection (1). 15 (3) A business agreement or service level agreement concluded in terms of section 20(1) or (2), before its amendment by the State Information Technology Agency Amendment Act, 2002, remains in force until such date as the relevant department or public body and the Agency agree on, which date may not be later than 36 months after that Act takes effect.“. 20 Repeal of section 21 of Act 88 of 1998

14. Section 21 of the principal Act is hereby repealed. Substitution of sections 23 and 24 of Act 88 of 1998

15. The following sections are hereby substituted for sections 23 and 24, respectively, 25 of the principal Act: “Regulations 23. (1) The Minister, after consultation with all executing authorities- ( a ) must make regulations regarding the manner in which procurement in terms of section 7(3) to (7) must take place, subject to the approval of the Minister of Finance; and (b) may make regulations regarding- (i) any matter that must or may be prescribed by regulation in terms (ii) of this Act; the imposition of additional duties or conferment of additional powers on the Agency that are necessary to achieve its objects: and the (iii) a procedure to resolve disputes between a department (iv) Agency; information systems security subject to the approval of the Minister of Intelligence; and applicable to all departments, 30 35 40 (v) any other matter that is necessary to be prescribed in order to achieve the objects of this Act. (2) Without limiting the generality of subsection (l)(a), such rcgula- tion- ( a ) must provide for representation during the procurement process of the 45 department that requires procurement; ( b ) must provide for due consideration of suitable service providers located in the province i n which the goods or services are required; 16 No. 24029 Act No. 38,2002 GOVERNMENT GAZETTE, 7 NOVEMBER 2002 STATE INFORMATION TECHNOLOGY AGENCY AMENIIMENT ACT, 2002 ( c ) may include provision for the circumstances in which procurement through the Agency is not required os procurement through another institution may occur; and (d) may include a procedure to resolve disputes regarding the preferred service provider. 5 Public Finance Management Act binds Agency

24. The Agency must comply with the Public Finance Management Act, 1999 (Act No. 1 of 1999).”. Substitution of long title of Act 88 of 1998

16. The following long title is hereby substituted for the long title of the principal Act: 10 “ACT To establish a company responsible for the provision of information to the public administration technology services and to provide for matters connected therewith.”. Short title and commencement 15

17. This Act is called the State Information Technology Agency Amendment Act, 2002, 2nd takes effect on a date determined by the President by proclamation in the Grzette. c