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SAFETY AND SECURITY PORTFOLIO COMMITTEE
28 August 2003
ANTI-TERRORISM BILL: DELIBERATIONS
Chairperson: Mr M George (ANC)
Documents handed out:
OAU Convention on Prevention and Combating of Terrorism
Extracts from the National Prosecuting Authority Act 32 of 1998
Prevention of Organised Crime Act 121 of 1998
Proposed Amendments to Prevention of Organised Crime Act 121 of 1998
Financial Intelligence Centre Act 38 of 2001
Anti-Terrorism Bill - working draft
Excerpts from Conventions and Protocols
Extradition Act 67 of 1962
Criminal Procedure Act 51 of 1977
The Committee continued its deliberations on the Anti-Terrorism Bill. It suggested further amendments to the Bill in order to align it to national legislation and the relevant international conventions.
The Chair noted that there the Long Title and the Preamble to the Bill had been flagged as an outstanding matter, which he requested the drafters to revisit. He also requested the Chair of the Portfolio Committee on Justice and Constitutional Affairs, Adv De Lange (ANC), to take a fresh look at the definition of the terms "Terrorist act", Terrorist activity" and " Terrorist Entity".
Adv De Lange said that he had already commenced work of the draft of the new section which was ready though a part of it was still outstanding. He had submitted what he had done to the drafters to scrutinise. Once there was agreement, there would be something concrete to put on the table. The unfinished draft was, however, available for members who are interested.
About the definitions, Mr. De Lange said South Africa was at the stage of developing these concepts just like its counterparts, Australia and Brazil. He proposed extra sessions for deliberations on this Bill.
Mr Swart (DA) indicated that his party would be available for the extra proposed meetings.
Clauses 6 and 7 Endangering safety at airports / the safety of maritime navigation
Mr Swart asked if it were necessary for all the acts tabulated under section 6 should be made unlawful.
Adv De Lange (ANC) said that when an offence is created it was not necessary to include the term 'unlawful' and promised to remove that terminology from the section while retaining the term 'intentional' at Clauses 6,7,8 and 11.
Clause 8 Bombing offences
Adv De Lange said that he had looked at other Acts where the term "public transport" is used and was of the view that the terminology necessitated a proper definition.
Clause 10 Protection of internationally protected persons
Mr Swart asked if the motive was an essential ingredient for the offence created under this section.
The Chair said the section makes provision for a motive.
Mr Swart replied that all that he could see was an intention not a motive, noting that to detain someone in order to compel a natural person to do something did not amount to a motive at all.
Mr Ferreira (IFP) warned that the section if left the way it was drafted was problematic since it would assume that many workers, especially COSATU members, were terrorists.
Adv De Lange acknowledged the importance of Mr. Swart's observation noting that care must be exercised in drafting to supply clarity to the various offences that had been created. Other jurisdictions had opted for listing acts that constitute terrorism but that South Africa had not gone that route. Instead the drafters had elected to separate these items. He admitted that he had not counter-checked the offences with the Convention and promised to study the Convention in order to capture the idea of terrorism.
The Chair agreed that the drafters must be careful not to sweep away unintended victims and asked the Department to explain its position.
Adv Jacobs explained that the reason for creating the offences was to give effect to the Convention but that he concurred with the Committee they must re-look at the Convention to get the true import of a terrorist act.
Mr Swart asked the legal team to explore the possibility of defining the term 'hostage' in order to supply meaning to the term 'terrorism'.
Adv Jacobs said that the Convention dealt exclusively with international terrorism acts and not the national ones which were covered elsewhere in the national legislation.
Adv De Lange offered that if there were any exclusion in the Conventions then those must be taken aboard in which case there would be no reason to change the wording noting that other acts of terrorism were covered in the relevant national legislation.
Mr Swart begged to differ with Adv De Lange's proposition noting that exclusions would not heal the apparent defect in the section since there was no "terrorism intent" in the offence.
Adv De Lange insisted that there was no need for a "terrorism intent" in the section in view of the fact that it dealt with situations of kidnapping as opposed to acts of terrorism per se. He added that the domestic legislation covered this scenario.
Adv Jacobs argued that "motive" was already covered in the offence that had been created under the section.
Mr Maziya (ANC) stated that one could not be declared a terrorist unless and until one determined the existence of elements, which perpetuate acts of terrorism.
The Chair interjected to explain that the Committee had decided to leave out the issue of "terrorist organisations" in order to avoid unnecessary complications.
Adv De Lange argued that all Conventions did not provide for acts with "terrorism intent" that covered all categories even those without terrorism intent noting that prosecuting authorities had been afforded enough flexibility to capture all situations.
Mr Swart insisted that he was not satisfied that some of the ordinary petty criminal activities could be categorised as terrorist acts a situation which he feared would open a floodgate for human rights abuses.
The Chair referred to 10(c ) knows that the victim is an internationally protected person
and wondered what happened if the person does not know.
Adv De Lange replied that if the accused was unaware then the statement would supply the necessary proof.
Mr Ferreira suggested an insertion of "and/or" at the end of each of the subclauses.
Mr Swart disagreed noting that it would not heal the defect in the section and instead proposed that the entire section be redrafted.
Adv Jacobs explained that the Convention had no provision for one to know.
Mr Masutha (ANC) suggested that the "intention" be inserted in front followed by an "(a) and (b)".
The Committee agreed to this.
Clause 11 Offences relating to fixed platforms
Mr Swart sought clarity on what fixed items the drafters had in mind in this section.
Adv Jacobs said that the definition for the fixed items was provided in the Convention.
Mr Swart questioned why a definition was not inserted in the Bill instead of relying on the one in the Convention.
Adv De Lange suggested that the section should instead read "permanently" or any other suitable terminology in reference to what was listed thereunder and that the definition of a ship should be added to the "fixed platform".
Mr Masutha offered that "fixed" is used in situations where elements are not permanently fixed and that therefore the suggested terminology would negate the meaning of the section.
Clause 12 Offences with regard to nuclear material or facilities
Adv Jacobs said that he had studied the Canadian Act on the definition of "material" and that he had used that to come up with the current version.
Adv de Lange observed that nowhere in the offence were facilities mentioned.
In reply to Ms Camerer (DA) citing 12(a) and (b), which referred to the theft of "nuclear material", and wondering how the suspects would be charged in this case, Adv de Lange noted that the Committee had already gone over this issue.
Mr Landers (ANC) agreed with the Adv de Lange's suggestion that specific offences should be created to cover the area of nuclear facilities.
Mr Swart referred the Committee to paragraph (vi) of the definition of "terrorist act" and said that this adequately covered nuclear facility but that the issue of motive still is a concern.
Ms Camerer agreed with the proposal to create specific offences to cover the invasion of a nuclear facility, which was a very sensitive national resource.
Adv De Lange said 12(b) was unnecessarily limiting by referring to "death" or "damage"
Adv Jacobs agreed that if looked at in isolation, 12(b) appeared limiting but he reminded the Committee that there was already a law in place to cover this situation and that this provision was borrowed from the SA Human Rights Commission's submission.
Adv De Lange suggested that Part IV offences should be applied in this case.
Adv. Jacob pointed out that South Africa has a separate Act that dealt with nuclear materials and that therefore there was no need to make provision for this scenario in the Bill.
Clauses 13 and 14 Financing offences / Dealing with property associated with terrorism
Adv De Lange asked why the drafters needed two sets of offences.
Adv Jacobs in reply to the query gave a brief background to the international obligations from which South Africa undertook to create these offences.
Adv De Lange suggested that one set of offences be created then it should cover every possible situation noting that in this regard Clauses 13 and 14 should be moved to Part III.
Mr Douglas (DA) suggested that the term "intent" should be inserted in 13(d).
The Committee agreed that Clauses 13 and 14 be moved to Part III.
Adv De Lange noted that Clause 13 in its present form seemed to imply that it was only a crime when there was a use of finances and that the definition needed to be looked at in order to link the acts of terrorism. He however hastened to say that the section should be flagged to give him time to counter-check the drafting.
PART IV Other offences
Clause 15 Offence relating to weapons of mass destruction
Adv De Lange asked from where these offences came and whether they were suited to this section. However he immediately changed his mind when he noted that the offences came from the Convention.
Adv. Smith reported that other jurisdictions also made similar provisions to include specific offences instead of making reference to the Convention.
Mr Swart suggested that Clause 15, 16 and 18 should be lumped together since they were of a generic kind.
The Chair sought an explanation as to why Clause 18 Hindering and obstructing police officer
came the way it appears.
Adv Jacobs replied that an attempt was being made to ensure that Clause 18 covered all envisaged situations and if it failed then it must be deleted.
Adv De Lange cautioned members to be careful noting that Clause 15 was problematic since it did not explain what destruction was envisaged here.
He said that the drafters should look at what extent of investigative powers it was giving to the investigating authorities in the Act.
The meeting was adjourned.
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