Explosives Bill: deliberations

Meeting report

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
24 February 2003
EXPLOSIVES BILL: DELIBERATIONS

Chairperson: Kgoshi L Mokoena (ANC)[Limpopo]

Documents handed out:
Explosives Bill [B43B-2002]
ARMSCOR Submission (Appendix 1)
Proposed Amendments to Explosives Bill (Appendix 2)

SUMMARY
During the discussion on the proposed amendments to the Bill, Members raised concerns with the definition of "explosive" and whether it applies only to chemical reactions or also to pressure reactions that result in an explosion. Members contended that the formulation of the proposed amendment to Clause 28 is too broad, and it creates an unnecessary duplication of the presumption in the provision, which is already dealt with in a separate clause. The Committee also considered whether the Western Cape MEC for Education's request that secondary schools also be exempted from the provisions of this Act should be approved.

ARMSCOR was concerned about the granting of an exemption, stating that the a failure to grant the exemption would severely inhibit ARMSCOR's ability to execute its mandate. Alternatively, the granting of licences to ARMSCOR, as argued by the Department of Safety and Security, would not be beneficial because the problem is that they can be withdrawn at any time. Members contended that ARMSCOR has not argued its case strongly enough, and the DP proposed that that it be refused an exemption. The Committee instructed ARMSCOR to consult further with both the Department of Safety and Security and the Department of Defence on this matter.

MINUTES
Dr P Jacobs, Chief Manager: Legal Component Detective Services in SAPS, outlined the proposed amendments to the Bill.

Proposed Amendments to Explosives Bill
Dr Jacobs took Members through the proposed amendments. Of particular importance here is the proposed definition of the term "explosive", especially the last part of the definition, which is supported by the Technical Director.

Clause 1: "explosion"
The effect of all the proposed amendments is to enable the Bill to now properly provide for incendiary devices, such as petrol bombs. If these amendments are not effected, a problem would be created in instances in which a person is found in possession of an incendiary device, but to which the presumption in Clause 22 does not apply.

Mr L Lever (DP) [North-West] asked whether it is so that all explosions necessarily involve a chemical reaction, because a situation could arise in which a high pressure gas canister is exploded. This would also result in an explosion, but does not involve a chemical reaction.

Senior Superintendent Strydom, from the South African Police Services (SAPS), replied that this would still constitute a chemical reaction, because the inclusion of oxygen is vital in detonating the explosion.

Mr Lever contended that this does not involve a chemical reaction, but is instead purely a pressure reaction.

Senior Superintendent Strydom responded that in that case it would not be considered a chemical reaction but rather a pressure reaction, and would not fall within the ambit of this Bill because no explosives are involved.

Dr Jacobs added that there is a difference between the situation sketched by Mr Lever, which might look like an explosion, but is not a chemical reaction because no explosives are involved, and an explosion involving a chemical explosive. The intention of the Bill is to deal with explosives, and the mere mismanagement of a canister that could cause damage would not be incorporated in this Bill. Such cases could, however, be covered by the Occupational Health and Safety legislation. Furthermore, in order to explode a device a detonator has to be employed and, because Mr Lever's example does not include a detonating device, it would not fall within the ambit of this Bill.

Mr P Matthee (NNP) [KZN] contended that it is possible for a person to weaken something to such an extent that that person knows the object will explode. Surely the intention is to cover this type of situation as well?

Adv Gideon Hoon, State Law Advisor, reiterated that this Bill deals with explosives, and the consequences of the factual scenarios sketched by both Mr Lever and Mr Matthee could still be subject to murder or attempted murder under South African criminal law. This Bill aims to assist SAPS in investigating an explosion, but cases in which no explosives are involved but which still caused damage would be subject to the criminal law.

Mr Lever accepted the explanation offered by Adv Hoon, and proposed that Clause 23(1)(a)(i) then has to be amended by the insertion of the words "or fire" after "explosion". He asked whether it was the intention to purposefully omit any reference to fire from this provision because it is already a crime under the common law.

Senior Superintendent Strydom responded that this provision is aimed at dealing with petrol bombs. If petrol bombs which are used as incendiary devices are not included here in the Bill but are instead dealt with under the common law crime of arson, the authorities would not be able to deal with that crime in stricter penalties than are currently imposed under the common law crime of arson.

Dr Jacobs added that Section 28 of the current Explosives Act contains this wording, and if the amendments proposed in this provision are not accepted, then no liability would be imposed in this regard. In the 2000 case of Abrams and Others the accused were found in possession of armaments, but a court of law found them not guilty. This type of decision will continue if this provision is not included in this Bill, as successful prosecutions would not be possible.

Mr P Maloyi (ANC) [North-West] asked whether the proposed amendments would be replacing parts (a) to (e) as contained in the current definition of the term "explosive" in Clause 1 of the Bill.

Dr Jacobs answered in the affirmative and stated that this amendment was approved by the Chief Inspector of Explosives, who stated that this amendment is more precise. It also follows the United Nations and Canada regulations, as well as those employed by the South African army. It is thus in line with the more accepted definition.

Mr B Mkhalipi (ANC) [Mpumalanga] suggested that the explanations seems to indicate that that situation involving the canisters would be excluded from any definition of "explosion" in the Bill. How then would the authorities be able to deal with the situation of possible weaknesses in a gas canister of liquid petroleum, for example, that often stored in homes? If the intention is not to cover this in this Bill, is there other existing legislation that does accommodate it? Could it perhaps be included under Clause 23(a)(ii)?

Dr Jacobs replied that the South African Standards Act prescribed certain standards that would be applicable in this situation. However, it would not be possible to make the possession of a weakened canister a criminal offence, unless of course the canister is kept with the express purpose of committing a crime. Existing legislation does therefore prescribe standards for the manufacturers and for the workplace, but the Bill would not be the appropriate vehicle to house this concern.

Clause 22: Endangering life or property
This proposed amendment provides for the three different reactions that can take place: "discharges, detonates or initiates". This amendment thus seeks to include "initiates" under the scope of this provision as well.

Clause 23: Presumption of possession of explosives under certain circumstances
This proposed amendment seeks to insert the words "or fire" after "explosion" at the end of Clause 23(1)(a)(i) in order to include incendiary devices, especially petrol bombs.

Clause 28: Offences
The new subsection proposed by the amendment would be inserted after the current Clause 28(4) in the Bill.

Mr C Ackermann (NNP) [Western Cape] suggested that this could be a problematic provision because it is so broadly formulated. It is especially troublesome when one considers the informal settlements that consist of homes that are located so close together, as this provision could then hold criminally liable anyone of those residents who are in possession of petrol containers that they use in their everyday life. Surely this cannot be the intention?

Dr Jacobs responded that it would be possible to use the wording in Section 26 of the current Explosive Act, if this is preferable.

Mr Ackermann reminded Members that the Western Cape Department of Education has requested that the regulations to the legislation be amended, but these are not included in this document containing the proposed amendments.

Dr Jacobs replied that it was decided that the types of "explosions" that could take place at schools do not have the same effect as actually "blowing up" something. The Portfolio Committee was shown an actual pipe bomb created by scholars at a secondary school, and which could have delivered extensive damage. The Bill does make provision for the exemption of tertiary institutions from these provisions, and this exemption would be granted by the Chief Inspector of Explosives.

Mr Lever contended that Clause 23(1)(a) already covers this situation because it includes a detonating device, whether it is chemical or physical.

Dr Jacobs responded that he agrees with the reasoning put forward by Mr Lever and a person in possession of a petrol canister would thus not be held liable here, as previously contended by Mr Ackermann.

Mr Lever asked whether the words "or fire" should be inserted at the end of Clause 23(1)(a)(ii) as well, for consistency.

Adv Hoon replied that it does seem logical to do this, and stated that he is not certain whether there might be any express reason for the exclusion of those words from the provision. A possible explanation could be that Clause 23(1)(a)(i) deals with inflammable substances that can be used to cause an explosion, whereas Clause 23(1)(a)(ii) then deals with the actual explosion.

Dr Jacobs agreed with Mr Lever's proposal that the words "or fire" be inserted here.

The Chair noted that Members raised no objections to the insertion of those words.

Adv Hoon stated that Clause 23 is really aimed at dealing with the presumptions, and for this specific clause the meaning of the term "explosive" has been broadened. Furthermore, Clause 23(2) essentially provides that a person with a can of petrol in his/her garage would never be held liable if s/he does not intend to use that petrol to commit a crime. This is so because there are no suspicious circumstances surrounding that possession and that person would be able to raise a reasonable doubt that they did not intend to use it to commit a crime.

Mr Lever contended that the proposed amendment to Clause 28 has not been drafted properly. The new proposed Sub clause 5(a) seems to duplicate the text already contained in the presumption provision, whereas the intention in this sub clause should actually be to create an offence, and not merely the duplication of a presumption. Instead, this sub clause should state something to the effect of "to be in the possession of explosives, as defined in the Act, without authority, as defined in the Act, is an offence". This sort of formulation is preferable.

It is the added verbiage currently included in the proposed amendment that is the cause of the problems in this provision, because it creates the impression that different definitions of the term "explosion" are being created throughout the Bill for every circumstance. This is a problem. The inclusion of such problematic formulations is a "huge oversight", and Mr Lever requested SAPS to explain whether this matter was in fact discussed with the Portfolio Committee on Safety and Security.

Dr Jacobs replied that the matter of incendiary devices was addressed in the presumptions provision, and it was only after it was approved by the National Assembly that the Department remembered that petrol bombs should be included. It was then decided that this matter would be raised before this Committee in order to address this issue. The Bill does contain a number of technical issues and it is better that these be addressed at this stage, especially pipe bombs, because they are so easy to make.

Mr Maloyi asked whether the word "or" would now be included in Clause 29.

Dr Jacobs said there had been a request that "or' be included.

Mr Lever contended that the problem here is that Clause 28 is merely recreating the elements of the presumption and the definitions, which is not necessary in that provision.

Dr Jacobs replied that Clause 28 reflects the wording in Section 28 of the current Explosives Act, but the State Law Advisor could be consulted here with regard to the drafting of the provision.

Adv Hoon stated that it would be that easy to redraft this provision, because the problem here is that Clause 28, together with the possession of explosives in Clause 10, refers to "explosions" as defined in the Bill, and does not include fire. The provision only makes it an offence to be in possession of a petrol bomb, but the Department preferred a broad formulation so that any pipe or petrol bomb or related device can be covered. There is also a need to include a provision here to deal with a person who stores petrol in their garage, as raised earlier by Members.

Adv Hoon stated that he understands the problem being raised and contended that there is probably a better way to redraft the provision, but he could not think of it off the cuff.

The Chair requested Mr Lever to reduce his proposal to a written form so that it can be discussed before this meeting is adjourned.

Mr Lever suggested that Clause 28(1)(a) does cover "or fire", and questioned whether it is even necessary to include the proposed Sub section 5 here at all. This provision already deals adequately with incendiary devices.

The Chair stated that this matter has to be flagged for later discussion.

Mr Matthee requested clarity on the reason for the distinction drawn between "made" and "designed" in the proposed Clause 28(5)(b)(ii). He also asked why any reference to "designed" has been omitted from Clause 28 in the Bill. Why have these subtle differences been included in the legislation?

The Chair stated that this matter would also be flagged for later discussion, and requested Dr Jacobs to take the Committee through the ARMSCOR submission (see document).

ARMSCOR submission
Dr Jacobs took the Committee through the ARMSCOR document, in which ARMSCOR (Armaments Corporation of South Africa) essentially request to be exempted from provisions of the Bill. They asked that it be placed on record that previous correspondence contained the same concerns raised by the document currently being discussed. The Department then consulted the Department of Defence before the Bill was handed over to Cabinet and the decision taken was that the ARMSCOR request for exemption could not be approved.

A second letter was submitted by Mr Phiyega, General Manager of ARMSCOR's Corporate Services division, present in the meeting, and it appeared that he was not aware of the previous correspondence on this matter. The Department then made further inquiries within ARMSCOR on this matter, and the Department's legal advisors concluded that it would not be advisable to exempt ARMSCOR in the same way that SAPS and the South African National Defence Force (SANDF) is. The reason for this is that SAPS and the SANDF perform operational functions, whereas ARMSCOR performs dual functions as it both acquires armaments and also performs a commercial function. ARMSCOR can therefore apply for permits in the same way that other applicants do, because if this is not done it would weaken the control mechanisms aimed at regulating explosives.

Senior Superintendent Strydom added that a meeting was held with the Department of Defence in April 2002 following the letter received from ARMSCOR, dated 20 March 2002, to discuss whether it should be excluded or not. The general feeling was that the most important consideration here is the control of explosives in South Africa,as well as the compilation of a database for forensic investigation. DENEL and ARMSCOR could not be granted exemptions from the Bill because, as stated earlier, they do perform commercial functions. They also use civilian vehicles to transport explosives, and this practice has to be regulated in the interests of public safety.

Dr Jacobs added that ARMSCOR cannot be granted an exemption from the legislation because this would essentially mean that it would also be exempted from approval for all its import/export activities.

Discussion
Mr Ackermann stated that he is not satisfied with the decision taken by the Department, because it essentially inhibits ARMSCOR from producing weapons. The powers being granted to the requisite authorities here are far too wide. ARMSCOR has to be granted an exemption here. The only argument offered by the Department for refusing to grant the exemption is that ARMSCOR performs commercial functions as well, but this is not a strong enough justification for the refusal. It seems that the primary cause of the problems here is that ARMSCOR were not properly consulted on the matter.

Dr Jacobs assured Members that ARMSCOR was consulted, and there is correspondence to confirm this. In fact, it appears that there was a miscommunication within the ARMSCOR ranks, as it was consulted even before the Bill was presented to Cabinet.

The Chair asked whether ARMSCOR actually participated in the public hearing hosted by the Portfolio Committee on Safety and Security.

Senior Superintendent Strydom replied that ARMSCOR itself did not present a submission during the public hearings, but DENEL did, on the same grounds as ARMSCOR. The Chairperson of the Portfolio Committee on Safety and Security stated that this was a problem. It is important to remember that it has to be ensured that this Bill deals with explosions only, and exemptions have to be sparingly given because it relates to public safety. It is interesting to note that DENEL also contended that it was not consulted when in fact it was. Its management later apologised for this oversight in a letter addressed to the Chairperson of the Portfolio Committee on Safety and Security.

Mr Ackermann sought clarity on precisely how, and the extent to which, ARMSCOR was consulted here, if it was consulted.

Dr Jacobs responded that the Draft Bill was sent to various institutions for comment, and one of the points raised related to the exemption. The Department's legal advisors stated that they should not be exempted. The entire question regarding the consultation process may be an academic one, but it is standard and accepted practice that the forwarding of a letter to the parties concerned that invites them to comment on the matter, is consultation.

Mr Maloyi asked whether the Department has now decided whether the Western Cape MEC for Education would be exempted from the provisions of this Bill.

The Chair stated that the decision is that they would not be entirely exempted.

Dr Jacobs responded that provision is currently made for the conducting of experiments etc., such as those done by tertiary institutions, but this does not include secondary level institutions. The request from the MEC is that the secondary level institutions be exempted as well. But in terms of the definition of "explosion" contained in the Bill it has to have the effect of causing damage to the surroundings. The very small laboratories reached at secondary school level should not be such that it causes damage to the surroundings. For this reason secondary level institutions cannot be granted exemptions. In fact, even the tertiary institutions are not fully exempted, as the Chief Inspector of Explosives can regulate their functioning.

Mr Maloyi stated that the problem here is that this Committee has not heard from ARMSCOR on this matter. Members have only heard from the Department and its reasons for not granting the exemption. How would it be possible to ascertain the views of ARMSCOR at this stage of the proceedings?

Ms B Dlulane (ANC) [Eastern Cape] stated that it would not be possible to grant ARMSCOR the floor at this formal deliberations stage, but there is a need to hear from them why they are requesting an exemption. It would unfortunately not be possible to do so during this meeting.

Mr Matthee stated that he was under the impression that the Rules of the South African Parliament stipulates that any Parliamentary Committee can call on anyone it sees fit at anytime to provide input.

The Chair replied that this would have been fine if this Committee had officially invited ARMSCOR to address Members during this meeting, but because this is not the case the ARMSCOR representative present today cannot be allowed to address the Committee.

Mr Lever contended that he was under the impression that this is a participatory democracy, and ARMSCOR has chosen to attend a meeting which has been publicly announced. ARMSCOR should explain what its difficulty is with the Bill.

The Chair stated that, even though it is not allowed in terms of normal Parliamentary Committee procedure, the ARMSCOR representative would be allowed to address this Committee on its concerns, but his input would be strictly off the record.

Mr Phiyega stated that the failure to grant ARMSCOR an exemption would severely impinge upon its ability to discharge its duties with regard to the acquisition of armaments for the Republic. ARMSCOR would then be required to apply to the Chief Inspector of Explosives for approval everytime it plans to import or export armaments or conduct quality control exercises. These operations are conducted frequently as they form part of ARMSCOR's core business.

Mr Ackermann noted that Mr Phiyega had mentioned that he has the full backing of the ARMSCOR Board here. He requested further clarity as to the extent of this consultation process. Was there wide discussion within ARMSCOR on this matter?

Mr Phiyega replied that there was discussion on the published Bill but ARMSCOR was never approached personally for public comment. Mr Phiyega stated that he was both the Secretary and a member of the ARMSCOR management Board, and he would have been aware of any such correspondence between ARMSCOR and the Department. It should also be mentioned that the person who forwarded the first letter to the Department has since been asked to leave ARMSCOR, for certain reasons.

Mr Lever asked Mr Phiyega to explain ARMSCOR's reasons for requesting an exemption instead of a licence under Clauses 13 to 15 of the Bill.

Mr Phiyega responded that the problem with licences is that they can be revoked at any stage by the licensing authority, and it would be especially problematic if the licence were to be revoked during emergency situations.

Dr Jacobs replied that Clause 14(4) provides that any laboratory etc., can be registered with the Chief Inspector of Explosives, as stated by Mr Lever, and here it would be more acceptable to have very defined exemptions, if they are in fact granted. ARMSCOR does transport explosives in a public area and public safety would thus be important here, and it would then have to apply for a licence like any other applicant. In fact, if the exemption were to granted and something were to happen while transporting the explosives in a public area, the Department would be called to account for its decision.

Senior Superintendent Strydom stated that she is not certain why ARMSCOR is requesting an exemption. On what grounds is the request based and what is the biggest problem it has that justifies the granting of an exemption. Perhaps this could be explained by Mr Phiyega. Furthermore, the alleged withdrawal of the licence at any time is not a problem, because guidelines are in place to guard against this. ARMSCOR could also apply for a licence in terms of Clause 17 of the Bill.

Mr Matthee stated that he is satisfied that there is a serious need for consultation to take place at the highest level between ARMSCOR, the Department of Safety and Security, the Department of Defence and the Chief Inspector of Explosives. There has clearly been a communication problem, and it is not important who is responsible for this problem, but all efforts have to be focused on achieving the desired result. Those parties involved have to get back to this Committee on the outcome of the consultation process.

Ms Dlulane reminded Members that this is a Section 75 Bill and public hearings were held by the Portfolio Committee on Safety and Security on this Bill. This consultation process should already have taken place during those public hearings, but this was not the case. She stated that she supports the proposal that this consultation has to take place.

The Chair stated that the problem here is that there may not be another chance to convene a meeting of this Committee to discuss this matter.

Mr Ackermann stated that he also supports the need for this consultation to take place.

Mr Matthee proposed that the Chief Whips be spoken to in order to arrange this meeting, because it is an important issue and this legislation cannot be passed by this Committee with these outstanding issues.

Mr Lever stated that ARMSCOR has contended that it cannot rely on Clauses 13 to 15 in the Bill due to its concerns with the uncertainty of the licenses granted. This is, however, a typically commercial argument, and it is not a public interest argument. ARMSCOR has thus not convinced this Committee that it needs an exemption, because it cannot explain why it is in the national interest for it to be granted an exemption. The awarding of an exemption to ARMSCOR would therefore be inappropriate.

Mr Maloyi recommended that ARMSCOR and the Department meet before the next meeting of this Committee, which is scheduled to take place on Wednesday 26 February.

Mr Lever suggested that Clause 5(b)(i) and (ii) is phrased too widely, and the phrase "which has been adapted" has to be inserted into those provisions.

The meeting was adjourned.

Appendix 1: ARMSCOR Submission

REQUEST FOR EXEMPTION OF ARMSCOR FROM APPLICATION OF EXPLOSIVES Bill

I refer to the telephonic conversation with Dr Jacobs regarding the above matter.

In terms of section 3(1) of the Armaments Development and Production Act 57 of 1968 "The object of the Corporation shall be to meet as effectively and economically as may be feasible the armaments requirements of the Republic of South Africa".

Furthermore, in terms of a Bill which is currently before the Parliament, which Bill is repealing the 1968 Act referred to above, ARMSCOR will be the agent of the DoD for purposed of the acquisition of defence materiél. It is envisaged in the proposed new ARMSCOR Bill that other State Organs may, with the consent of the Minister of Defence, use the good offices of ARMSCOR for the acquisition of their own defence materiél.

As can be seen from the two pieces of law referred to above, ARMSCOR is an integral part of the acquisition and procurement of armaments or defence materiel. It is also obvious that in the discharge of its duties towards the Republic and more specifically the SANDF, ARMSCOR would in the nature of things be required to deal with explosives in much the same way the SANDF does.

Out contention therefore is that if clause 2(2)(a) does not exempt ARMSCOR from its application, ARMSCOR will not be able to discharge its function as intended by Act 57 of 1968 and also as envisaged in the new Bill which will regulate ARMSCOR.

We therefore request your urgent consideration to exclude ARMSCOR from application of the envisaged Explosives Act.

ARMSCOR was not informed of the pending legislation nor of the subsequent public hearings which were held. ARMSCOR could therefore not have voiced its concern in this regard.

Yours faithfully

ME PHIYEGA
GENERAL MANAGER:
CORPORATE SERVICES