Proclamations under Protection of Constitutional Democracy against Terrorism and Related Activities Act

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23 May 2011
Chairperson: Ms L Chikunga (ANC)
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Meeting Summary

The Department of Police briefed the Committee on the Proclamations that had been made in terms of section 26 of the Protection of Constitutional Democracy against Terrorism Act. From the outset, the Department stressed that it wanted the Committee’s guidance on the tabling of these proclamations. A brief background was given on the role of the United Nations Charter and the Constitution in the fight against terrorism.

Of particular concern to the Committee was a certain individual named Tantoush. The Committee was concerned why he had not been prosecuted as yet, how he had managed to enter the country and why he had not been charged for being in possession of a fradulent passport. It came to the attention of the Committee that the individual had been deported from Malaysia to South Africa, even though he had not enterd Malaysia through South Africa. The Committee was concerned how this had happened. The Department told the Committee that the Department of Home Affairs would be in a better position to respond to such questions, as well as to the questions as to how this individual had been granted refugee status.

Meeting report

Chairperson's Opening Remarks
The Chairperson noted her appreciation for the work that was done by the Independent Electoral Commission (IEC) during the elections and the democracy that had allowed people to vote.

She expressed her condemnation of the brutal killing of police officers, which was of serious concern, and added that all citizens should condem such killings and protect members of the South African Police Service (SAPS). The Committee intended to discuss the issue of crowd control with the SAPS but it had to be postponed.

She noted that the main purpose of the meeting was to clarify certain issues that related to proclamations, and consequently adopt the proclamations.

Department of Police on proclamations under Protection of Constitutional Democracy against Terrorism and Related Activities Act
Liutenant-General Molefe, Office of the National Commissioner, South African Police Service, thanked the Chairperson for expressing her concern in relation to the brutal killings of police officers, which he agreed was serious.

He mentioned that further information on Mr Tantoush, a non-citizen who had been listed as a wanted man, and who was currently residing in Souht Africa, would be provided in the proclamation. The listing and publication process would be explained in the presentation. He noted that SAPS wanted to table this information more frequently in Parliament, but would be asking for the Committee’s guidance in this regard.

Brigadier Kobie Strydom, Legal Component Crime Operations, South African Police Service, gave a brief introduction by saying that the the Committee had requested further information on the Proclamations that had been tabled in terms of section 26 of the Protection of Constitutional Democracy Against Terrorist and Related Activities Act (the Act). The United Nations Charter, to which South Africa had acceded, obliged members to accept and carry out the decisions of the United Nations Security Council. In addition section 231 of the South African Constitution provided that an international agreement bound the Republic only after it had been approved by resolution in both the National Assembly and the National Council of Provinces. In terms of section 25 of the Act, the President must, by proclamation in the Gazette, give notice that the Security Council of the United Nations had identified a specific entity as being an entity who committed or attempted to commit any terrorist and related activity, or an entity against whom member states of the United Nations must take the actions specified in resolutions of the Security Council, in order to combat or prevent terrorist and related activities.

In terms of section 26 of this Act, every Proclamation that was issued under section 25 must be tabled in Parliament. The consolidated list comprised of four categories, which included individuals and entities associated with the Taliban, and individuals and entities associated with Al-Qaida. States were encouraged to circulate the list widely. In addition member states were encouraged to submit names for listing as soon as supporting evidence was obtained. Before names were proposed member states were encouraged to approach states of residence or citizensip of the individual or entity in order to obtain additional information. Furthermore member states were supposed to provide detailed statements in support of the proposed listing, and these should include specific findings that demonstrated the association or activities alleged and supporting evidence.

Any information could be amended or updated by the Committee, having been provided by member states, regional or international organisations. The monitoring team was supposed to advise and assist in conveying information to requesting states.

The effects of listing were that assets would be frozen, and both an arms embargo and a travel ban would be imposed.

Brig Strydom then outlined the de-listing procedure.

Rev Meshoe asked for further clarity on the apparent inability to arrest Tantoush. In addition he asked why information from the media was classified as supporting evidence but it was not necessarily regarded as evidence.

Mr Swathe asked where evidence was supposed to emanate.

Brig Strydom noted that the question about Mr Tantoush had to do with domestic legislation question.The previous Terrorism legislation did not have any provisions that related to extra-territorial jurisdiction. Previously, the SAPS could therefore not prosecute a person who had committed a crime in another country. Furthermore South Africa was bound by the United Nations Charter. He noted that media and intelligence statements could be accepted as “allegations” and they could also be investigated for further evidence.

Mr Lekgetho asked which Constitution was being referred to.

Brigadier Strydom responded that the Constitution that was being referred to was the current South African Constitution.

Ms Molebatsi asked why Chapter 7 of the United Nations Charter was important to South Africa.

Brigadier Strydom responded that it was important in that the United Nations tried, through the use of sanctions, to have countries adhere to their obligations, as opposed to using war.

Rev Meshoe asked what would happen if rumours from the media were further investigated and found to be true.

Mr Swathe asked for more clarity on the inability to prosecute someone who had committed an offence outside South Africa.

Brigadier Strydom responded that the Charter contained a principle that an individual could either be prosecuted or extradited. Mr Tantoush could be prosecuted in United States of America, but the United States of America had not asked for his extradition.

Mr Lekgotha questioned why there was need to further investigate before an extradition was done.

Mr G Schneeman (ANC) asked at what stage the issue was published in the Government Gazette, what was the effect of publishing in the Government Gazette, and whether the Tantoush case had been published.

Rev Meshoe asked what process was followed when an extradition was requested.

Brigadier Strydom responded that an extradition request would come from another country, and a person could be extradited for a crime which had similar or the same elements to a crime in another country. The request would go through the Department of Justice, which would then ask the SAPS to verify whether the individual was in the country. The SAPS did not investigate, because the requesting country would have done the investigation. If the offence for which extradition was required was not one that was also an offence in South Africa, then only the President could decide whether or not the individual could be extradited.

Rev Meshoe asked whether South Africa could demand evidence from a requesting country.

Brigadier Strydom responded that evidence could be demanded from the requesting country. An example was given that Libya had once requested the extradition of Tantoush, having alleged that he had stolen gold. This request had been rejected by the Department of Justice. Furthermore Tantoush was listed in 2002, and this had been published in the Government Gazette on 25 May 2005. In addition, every morning, before 7am,  the SAPS would check the United Nations website to see whether any names were added, deleted or amended. If there were any changes a proclamation would be drafted and sent to the Minister, for signature, from where it would go to the President. Once that proclamation was signed it would be published. Brig Brigadier could not give a time frame as to how long this would take. The SAPS would also inform the Financial Intelligence Centre. The implication of a listing in the Gazette was that there would be a freeze on assets, an arms embargo and a travel ban. The asset country had an obligation to see that the listed person had the means to survive everyday while he could not travel.

Ms A van Wyk (ANC) noted that if Parliament was not informed then the proclamations were not widely published. She urged both the Committee and the SAPS to work together in trying to deal with such issues. It seemed that these proclamations were only being dealt with about once every two years. She suggested that there should be frequent updates, and that these should also be sent to banks, to prevent the listed individuals from conducting any transactions

Brigadier Strydom responded that the Reserve Bank was also informed, who would, in turn, inform other banks. Proclamations were published on the SAPS website. She asked that the Committee should tell SAPS how often it would like SAPS to table the proclamations.

She gave a brief summary of the proclamations and the names of individuals who had been removed from the list.

The Chairperson asked whether there was a South African on the list, and what the implications were with regards to the listing and de-listing for a country.

Brigadier Strydom responded that there was no South African on the list. She reiterated that in regard to Tantoush, there had been a request from Libya for extradition but such a request was then ignored by Libya. Tantoush would be monitored and any information would be provided to the United Nations.

Ms Van Wyk asked how it was possible that Tantoush had entered South Africa.

Brigadier Strydom responded that he had entered South Africa in December 2002 under a different name, after he had been deported from Malaysia, after obtaining a fraudulent passoport from South Africa. It was only after fingerprints had bee sent to Interpol that he had been identified.

Ms Van Wyk asked whether Tantoush had been charged for being in possession of a false passport.

Brigadier Strydom responded that Tantoush had been granted refugee status.

Ms Van Wyk stressed that there was a security concern if South Africa was becoming a safe haven for criminals. Furthermore there was a problem with movement control.

Brigadier Strydom responded that the identifying factors in Tantoush's listing were vague, and it was only when he was arrested in South Africa that he was identified.

Mr Schneeman asked whether Tantoush had been charged for being in possession of a fraudulent passport.

Rev Meshoe asked why Tantoush had been deported to South Africa from Malaysia, if he had entred Malaysia through another country.

Brigadier Strydom stressed that the Department of Home Affairs would be in a better position to answer the questions that the Committee Members had raised.

The Chairperson moved for the adoption of the proclamations.

The Committee adopted the proclamations.

The Chairperson noted that more frequent interactions with SAPS should take place.

The meeting was adjourned.


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