Anti-Terrorism Bill: deliberations

Meeting report

SAFETY AND SECURITY AND JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEES JOINT MEETING
22 September 2003
ANTI-TERRORISM BILL: DELIBERATIONS

Chairperson: Mr M E George (ANC)

Relevant documents:
Draft Working Document (2003-09-22) as amended by Adv de Lange (ANC)
Draft Working Document (2003-09-19)
Anti-Terrorism Bill [B12-03]

SUMMARY
The Committee dealt with the Long Title, Preamble, Definitions and Clauses 2, 3 and 10 of the Draft Woking Documents on Anti-Terrorism Bill prepared by the Department and Adv De Lange, separately and further amendments were inserted to the Bill.

MINUTES
The Chair noted that these working documents are as the result of the initial discussions on the Bill. The drafters had provided Adv de lange with their 030919 Working Draft and he had effected some further amendments (see 030922 Working Draft).

Adv De Lange noted that the changes that he had made to the 030919 Working Draft prepared by the drafters, are more of a technical nature and than of a principle nature.

Long Title and Preamble
Adv P Jacobs (Department of Safety & Security: Legal Drafter) explained that they have made the changes requested by the Committees to the Long Title and the Preamble, so their sequence has been change accordingly. In line with the Committees' request that the Bill clearly indicate how the Republic became party to different international instruments, paragraphs (a) to (j) of the Preamble clearly state this. He noted a date error in par (j) which should state '7 November 2002' and not 2003.

Adv De Lange raised a concern about the use of the word "terrorism" and noted that the problem is that when the Preamble stipulates that this Bill aims at preventing and combating terrorism it seems to refer only to Clause 2, which deals with the "Offence of Terrorism". This could not be accepted since, apart from Clause 2, there are other eleven clauses in the Bill that create major crimes. Hence, in his Draft Working Document, dated the 22 September 2003, he has tried to used a catch-all phrase "terrorist and related activities", which is wider than that of terrorism, to define all these crimes. He felt hat the drafters should create a separate paragraph in the Preamble, which would deal separately with the issue of the African Convention and thus spell out what is contained in it, since this Convention is the one that binds the Republic the most.

The Chair said that the drafters had noted Adv De Lange concerns and would deal with them.

Clause 1: Definitions
"conventional offence"
Adv De Lange referred to the 22 September Working Document for his proposed amendment.

Adv Jacobs noted that the word "instrument" should be used instead of "convention" since it relates both to convention and protocols.

"entity"
Adv De Lange referred to the 22 September Working Document for his proposed amendment.

Mr Gerald Nel (Department of Justice: Legal Drafter) noted that it is possible for a gang to commit the crimes prohibited in this Bill and the Prevention of Organised Crime Act contained a definition of "gang".

The Committees agreed that the word "or gang" should be reinserted.

Mr M Booi (ANC) asked what would happen if two or more people get together, as they did in Upington where a group of people were angry because police could not solve a particular case and vented their anger at the alleged rapist. Would these people be called terrorist just because they "acting in the furtherance of a common purpose"?

Adv De Lange said that the whole purpose is to formulate a definition of an entity. In order to understand what an entity is, one would have to read those provisions of the Bill which deal with entity, that is, Clause 10. Therefore what this definition does is to put all groups involved in terrorist activity under the same entity, which has nothing to do with crimes such as murder, rape and other related crimes. The words relating to common purpose or conspiracy are merely added so as to stop any other interpretation by the Courts where an entity, not being a legal entity but a group of people, is involved in terrorist financing whether acting in common purpose or not.

Mr Booi acknowledged Adv De Lange's explanation and asked how would one then deal with this definition at an international level. For example, the group of people held by the Americans in Cuba on the basis that they are terrorists. He asked how would they have been seen in terms of the Bill if they had been arrested on South African soil, taking into account the fact that they are said to be acting in common purpose and that is, of terrorism.

The Chair replied that it is important that it should be noted that the purpose of this exercise is to move away from restricting a group to common purpose.

Mr Nel said that it is important that the definition of 'entity' be read in conjunction with other provisions in the Bill just like the definition of terrorist activity and Clause 19, which deals with jurisdiction in respect of offences.

"explosive or other lethal device"
Adv De Lange referred to the 22 September Working Document for his proposed amendment.

Mr Booi asked how far does the word 'organisation', in relation to internal organisation and intergovernmental organisation, go and therefore does it include someone who has membership of a particular organisation.

Adv De Lange noted that usually an association or an organisation are legal entities that have a specific meaning and thus in law it means a structure or a group of people that have a constitution that binds them together. Therefore 'organisation' has a specific legal meaning and hence it is not necessary to define it. An entity on its own, whether incorporated or unincorporated, has no real meaning but simply connotes a legal relationship that exist between its members and thus only when attached to something else, such as a terrorist activity or the financing of a terrorist activity, does it become such an organisation. He proposed that "directly or indirectly" be inserted after "in whole or in part" in paragraphs (b) and (c) of the definition of terrorist activity.

"terrorist and related activities"
Adv De Lange referred to the 22 September Working Document for this added definition.

He proposed adding "or an offence referred to in Clauses 11 to 14" after "or a convention offence".

He also proposed that "specified offence" should be inserted in the definition clause as a catch-all phrase, so as to capture into one term all the offences stipulated in the definition of a terrorist and related activities.

"weapon"
Adv De Lange referred to the 22 September Working Document for this added definition.

Adv Jacobs did not think that this definition is necessary and said that it would be appropriate to merely say "by any other means" as that word is used in the definition of terrorist activity. If a definition of weapon is to be used then it should be extended beyond firearms and include any other material that could be used to cause death or serious bodily harm to a person or could be used to threaten or intimidate a person.

Adv De Lange contended that although "by any other means or method" is a catch-all phrase, it is still necessary that weapon should be clearly defined in the Bill. A failure to do so might open this to different interpretation by judges, who might interpret it - as never intended - to include substances such as inflammable or incendiary devices.

The Chair noted that this is an area that the Committee still needs to explore to ensure that everything is covered and therefore not left open to different interpretation. Any improvement on this definition of weapon would be welcomed by the Committee.

Chapter 2: Offences and Penalties
Part 1: Offence of terrorism and offences associated ….with terrorist activities
Clause 2: Offence of terrorism
Adv De Lange referred the Committee to the 22 September Working Document for his proposed amendments to Clause 2 of the Bill.

Adv Jacobs noted that the drafters would look at Adv de Lange's proposals and decide whether it would not be necessary to provide a definition of the word "commits".

Clause 3: Offences associated or connected with terrorist activities
Adv De Lange referred to the 22 September Working Document for his proposed amendments to Clause 3. The drafters should look at the provisions of Clause 3(1) and (2) and decide whether those should be acts of intention only and not include negligence.

Adv Jacobs noted that the department would look at the proposals made by Adv De Lange in both Clauses 2 and 3 and they will refine them.

Ms S Camerer (DA) and Adv P Swart (DA) agreed that a link between knowingly, intention and negligence should clearly be explicit in the Bill.

Part 2: Convention offence
Clause 10: Financing offences
Adv De Lange proposed that Clause 10 be moved to become the first clause of Part 2 and its heading be changed to : Offences associated or connected with the financing of terrorist and related activities.

He also suggested that the phrase, "offence referred to in sections 2, 2A, 3(a) and (b), 4 to 9 (10), and the offences referred to in paragraphs (b) and (c) of the definition of "Convention offence", should simply be replaced by "specified offence".

Mr Booi was concerned about the powers that this Bill gives and asked if would it be regarded as an offence if someone used a property belonging to another, who happens to a member of a terrorist organisation. That is, the user did not know that the owner of the property is actively involved in terrorist activities.

Adv De Lange said that this Bill does not give anyone powers to do or act against anyone but only creates offences. Therefore to use another person's property is not a crime on its own as long as the user does not use it, wholly or partly, to facilitate or commit a specified offence or for the benefit of a terrorist activity. A person could only be found guilty of an offence if such property is used to help him/her to commit a crime under this Bill.

The Chair asked what happens if a property belonging to someone else, is used by another person to commit terrorist activities, without the owner's knowledge of such.

Adv De Lange noted that since the property was used to commit an offence then it would be forfeited. However, the Bill does provide a recourse to an innocent party in terms of the provisions of Clause 16, which relates to the declarations of forfeiture on conviction.

Mr P Smit (Finance Intelligence Centre) noted that the provisions of par (f) of Clause 10(1) are not included in the definition of property:
"provides or makes available, or invites a person to provide or make available any financial or other related service."
It would be proper if these two could be kept separate since, while it is impossible to forfeit or seize one's service, it would always be possible to forfeit or freeze one's money in the bank.

Adv De Lange proposed that these two should then be defined separately in the Bill as the SALRC had done in its original draft.

Mr Smit noted that the department would consider the proposals made by Adv De Lange and see if it cannot provide a definition for the assets referred to in par (f).

Ms F Chohan-Khota (ANC) noted that it is important that a test for par (ii) of Clause 10(1) should be clearly formulated. A person who is involved in charity work would normally know the organisation he/she is benefiting but it is possible that he/she might not really know that such an organisation uses the proceeds to further its commission of a terrorist activity.

Mr Smit noted that in those circumstances, especially in the provisions that creates the offences, the court would have to follow a narrow interpretation, which would benefit the accused the most. Therefore the courts would require that such a person must know that the money given is used to benefit a commission of offence.

Ms Chohan-Khota noted that she would have accepted the explanation if these provisions were only limited in "intention or knowing" but the problem is with the use of the phrase "ought reasonable to have known" since such phrase is too wide. Ms Camerer, Mr Swart and Mr Landers said that Ms Chohan-Khota's argument made sense.

Adv De Lange noted that Ms Chohan-Khota's concerns would be covered under the provisions of Clause 10(4).

The Chair said that the concerns that have been raised have been noted. He proposed that discussion on this matter be deferred and Ms Chohan-Khota, Ms Camerer and others be allowed to formulate an improved provision, without eliminating the essence of the present sub-clause.

Mr Nel noted that the definition of person in the Interpretation Act also covers part of what the Committee included in the definition of entity. He proposed that instead of having the definition of 'entity', the Bill should only have the definition of 'person', which would also include what is contained in the definition of 'entity'.

Adv Swart felt they should retain the definition of entity in this Bill instead of the defintion of a person since the former is broader and thus includes any person under it.

Adv De Lange agreed with Adv Swart that the definition of entity is broad enough to include all natural persons, thus from one person to a group of people, including gangs, syndicates, incorporated or unincorporated associations and any juristic person.

Mr Smit noted that subclause (5) could be moved and reinserted under the provisions of subclause (2)(f) proposed by Adv De Lange.

The meeting was adjourned.