Anti-Terrorism Bill: deliberations

Meeting report

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

Chairperson: Mr M George (ANC)

Documents relevant:
Draft Working Document (2003-09-22) as amended by Adv de Lange (ANC)

SUMMARY
The Committee went through the latest draft of the Bill as prepared by the Department and further amended by Adv De Lange, the Chair of the Justice Portfolio Committee.

The Schedule of the Bill was discussed in the afternoon session. This amends various Acts to ensure that those laws affected by this Bill are harmonised. These were the Extradition Act, Criminal Procedure Act, Criminal Law Amendment Act, Prevention of Organised Crimes Act, Financial Intelligence Centre Act, Nuclear Energy Act, Non-Proliferation of Weapons of Mass Destruction Act. It was suggested that the Interception and Monitoring Act needs also to be amended.

MINUTES
Adv Jacobs took the Committee through the 22 September Working Document and noted the amendments made by Adv de Lange (see Bill).

Chapter 2: Offences and Penalties
Part 2: Convention offence
Clause 4: Hijacking of an aircraft
Adv J De Lange (ANC) asked if the word "intent to" has the same meaning and effect as the word "intentionally".

Adv P Jacobs (Department of Safety and Security: Legal Drafter) affirmed that they have the same meaning and effect. However for the sake of consistency they would change it to be "intentionally".

The Chair also noted that there should be consistency throughout the Bill since any change in the drafting style might lead to different interpretations.

Clause 5: Endangering the safety of maritime navigation
Adv De Lange referred to the 22 September Working Document for his proposed amendments on Clause 5.

Clause 6: Bombing offences
Adv De Lange's proposed amendments were noted and there were no comments.

Clause 7: Taking of hostages
Adv De Lange's proposed amendments were noted. He further proposed that the word "threatens to kill" should be deleted since such is covered under the provisions of Clause 14 of the Bill and that the provisions of Clause 21(3) be refined as far as they relate to this clause. He asked if it would be necessary for the element of intention to be present for one to be charged under this offence.

The Chair noted that in some Eastern Cape municipal councillors had once been held hostage by the locals and they had demanded to see the MEC for Local Government and Housing so that they could draw the attention of the provincial government to the corruption that was taking place within that municipality. Since this Bill does not provide a definition of a "hostage" would not those people be easily taken to be terrorists in such cases.

Adv De Lange responded that Clause 21(4) excludes people being called terrorists where an offence is committed in a single state and the hostage and offenders are nationals of that state. However, those people might be charged under the Common Law offence of kidnapping. He thereafter proposed that the wording of Clause 21(4) should be refined so as to make it clear that it is a defence against the offence of taking of hostages created in Clause 7 of the Bill.

Ms A Van Wyk (UDM) asked what would happen if the hostage-taking is done for political reasons and it occurred in a single state and the hostage and the offenders share the same nationality.

Adv De Lange noted that notwithstanding the political motive underlying the taking of the hostage, it would still be a case of kidnapping.

The Chair asked why that is the case taking into account the fact that there is a political motive underlying the kidnapping.

Adv De Lange said that it should be noted that this Bill only deals with those parts of the law, which are not covered under the Common Law and thus the Convention attempts to prevent. However notwithstanding the fact that this case is covered under the Common Law offence of kidnapping, the Committee, if it desires, could create a new offence dealing with kidnapping which is politically motivated.

Adv Jacobs noted that it would not be necessary to create a new offence in this regard since the provisions of the act dealing with intimidation, are wide enough to cover instances where people are taken hostages with the intent of forcing them to do or abstain from doing something.

The Chair said that if their concern, that is of ensuring that kidnappings which are politically motivated are treated more harshly than ordinary kidnaps, is covered under the "intimidation Act" then they accept that there would be no need for creating a new offence in this regard.

Adv P Swart (DA) proposed that the word "intention" should be inserted in the provision of Clause 7.

Clause 8: Protection of internationally protected persons
Adv De Lange's proposed amendments were noted.

Adv Jacobs proposed that the word "relating to" should be used instead of "of protection of"

Adv De Lange accepted the proposal.

Clause 9: Offences relating to fixed platform
Adv De Lange's proposed amendments were noted and there were no comments.

Part 3: Other offence
Clause 11: Harbouring or concealment of persons committing offences
Adv De Lange's proposed amendments were noted. He further proposed that the words "referred to in this Chapter" should be substituted by the words "specified offence" as defined in the definition clause and that subclause (2) be removed to an evidentiary clause, Clause 21

Clause 12: Duty to report presence of person suspected…and failure to so report
Adv De Lange's proposed amendments were noted. He further proposed that the words "in this Act" in 12(1) be substituted by the words "in this Chapter".

Clause 13: Offence relating to hoaxes
Adv De Lange's proposed amendments were noted. He further proposed that the words "directly or indirectly" be inserted in Clause 13(1)(b) after the words "any information" and the words "weapons of mass destruction" be removed from the paragraph. He said that subclause (3) should be moved to the evidentiary clause, that is Clause 21.

Clause 14: Attempts, conspiracy and inducing another person to commit offence
Adv De Lange's proposed amendments were noted and there were no comments.

Chapter 3: Provisions Relating to Offence
Clause 19: Jurisdiction in respect of offences
The Chair noted that the Committee is concerned about the logic and sequence of this clause and therefore it would be proper if the drafters could look at that matter.

Adv Jacobs said that they would discuss this matter further with Adv De Lange, however he believes that the provisions of the Schedule which deal with extradition would also shed some light on this clause.

Clause 20: Consent of National Director to institute proceedings
Ms S Camerer noted that the reference to "Section 2 or any Convention offence" in 20(2) should be changed to be "specified offence"

Clause 21: Evidentiary matters and exclusions
Adv De Lange said that it should be noted that the mere fact that the Parliament had ratified a Convention does not make the Convention part of our law. Therefore the Constitution requires such a Convention to be enacted into law by means of national legislation in order to qualify to be part of our domestic law. He proposed that the drafters should rewrite the provisions of 21(3) and thus exclude any reference to the Convention, either making it clear that it relates to an exclusion or a defence of an offence created in Clause 7.

The Chair noted that the drafters should insert all those provisions which the Committee had agreed about and they should be moved to this clause.

Adv De Lange requested that it should be made clear as to which part of the Bill or clause a particular provision of the evidentiary clause applies to.

Afternoon session:
Clause 24 Notification by the President in respect of persons or entities identified by the UN Security Council
This clause obliges the President-in-Cabinet to give notice that the UN Security Council has identified certain persons or entities as being, amongst others, persons who commit or attempt to commit terrorist activities.

Adv de Lange said that the clause should refer to the "President" and not the "President-in-Cabinet".

Clause 25 Parliamentary [supervision] role
Adv P Jacobs said that the word 'supervision' would be removed from the heading following recommendation of the Justice Portfolio Committee.

Clause 28 Short title and commencement
This clause states that the Act would be called the Counter-Terrorism Act and would come into operation on a date determined by the President by proclamation in the Gazette.

Adv de Lange said that members should consider having a fixed date for the commencement of the Act. The Bill does not need regulations so members should consider Parliament setting a date or saying that it would come into operation on a date determined by the President by proclamation.

Adv Jacobs suggested one could say that it comes into operation once signed by the President.

Clause 27 Amendment and repeal of laws
Clause 27 sets us the laws that are amended or repealed as well as the extent of the amendment or repeal.

Schedule Laws amended by Clause 27
Extradition Act 67 of 1962
Mr P Van Wyk (SA Law Commission) pointed out the insertion of a new section 22 which deals with extradition in respect of terrorist activities. This Act shall apply to any surrender in respect of a person suspected or accused of, or convicted for an offence in terms of the Counter-Terrorism Bill (see Schedule of Bill).

Mr Van Wyk said that certain offences referred to in the Counter-terrorism Act, Civil Aviation Offence Act and the Nuclear Energy Act shall be deemed to be included as extraditable offences in any extradition treaty between South Africa and any other foreign state, concluded before the coming into force of this section, if such foreign state is also a party to the Conventions listed in the section. This deeming provision applies provided that if under sub-item (3) an offence is deemed to be an offence described in an extradition treaty, no person may be surrendered for an offence in accordance with this Act, if the conduct alleged to constitute the offence occurred before this section comes into force. In terms of sub-item (4) one would not be able to use the political exception as a sole ground for refusing extradition.

Adv de Lange had problems sub-item (3). He asked why the drafters had included SA offences as extraditable offences and not also the offences of the other country. The problem is that the section does not state that South Africa would also give effect to their laws. Thus this deeming provision is problematic.

Adv de Lange continued that the proviso to the item does not make sense as one could not have an offence under this Act until such time it comes into effect. He asked if there is any legal principle on which one can deem our crimes to be part of the agreement obliging other countries to extradite people to us whereas they have not specifically agreed.

Adv G Nel (Dept of Justice) said that the proviso is about the conduct that is alleged to constitute an offence and not the offence itself. Consequently he did not share the concern that Adv de Lange had.

Adv P Swart (DA) said that if an offence is committed in another country before our Act comes in effect we cannot extradite the accused. Adv de Lange said that the issue is that the conduct does not constitute a crime in South Africa. He went on to say that the proviso is superfluous.

Adv Swart noted that, in terms of the subsection, SA only has to surrender the accused. The moment SA becomes signatory to the Conventions and later a South African citizen commits a crime in another country the obligations in terms of the Convention have to be carried out. If this is not the case, then the Committee has to specify what should happen.

Adv Swart said that the Convention dealing with the financing of terrorist activities creates certain crimes. One can have a situation where a person commits a crime in a member state. He assumed that the offence is not an offence in South African law. The person is later found to be in South Africa. Would South Africa be obliged to surrender that person just because it is a member state. He said that if the answer is yes, then sub-item (3) is very important.

Adv de Lange indicated that Conventions do not automatically become part of domestic law. A member state has to pass national laws incorporating the Convention. The Committee should consider if they want a clause that says that similar offences giving rise to the application of the convention in other countries form part of SA law.

Mr P Smit (Finance Intelligence Centre) said that an extraditable offence should be an offence in both countries. He agreed with Adv de Lange that one could not extradite unless the conduct constitutes a crime in South Africa.

Adv de Lange asked if South Africa would be obliged to extradite the accused to a country which has no provision deeming the offence to be an extraditable offence.

Mr Smit said that it would depend on the nature of the treaty concerned. The deeming provision would apply if the country has the offence in the list of extraditable offence. He stressed the importance of dual criminality.

Adv Nel said that if an offence was committed in another country before our Act comes into force, we should be able to extradite or surrender that person as soon as our Act comes into operation.

Mr M George (ANC) felt that SA should not extradite or surrender a person in respect of conduct which is criminal in another country but was not yet a crime in SA when it was committed.

Adv de Lange said that attempts and conspiracy as far as relating to offences in, amongst others, Clauses 4 and 5 should also be criminalized.

Criminal Procedure Act 51 of 1977
Adv Jacobs went through the amendments to this Act (see Schedule of Bill).

Adv de Lange noted that Clauses 10 to 12 of the Counter-Terrorism Bill were not included in the proposals. Did the omission mean that the ordinary rules relating to bail would apply to these clauses?

Adv Jacobs replied that Clause 10 had been omitted by mistake and that it has to be inserted in Schedule 6. He felt that the other sections dealt with minor offences which should not form part of Schedule 6. he went on to say that the ordinary rules of bail would apply to this offences. This means that there would be no onus to prove that it is in the interest of justice that the person be released.

Adv de Lange said that Clause 3 (c) and (d) should at least be included in Schedule 5.

Criminal Law Amendment Act 105 of 1997
Adv Jacobs went through the amendments to this Act (see Schedule of Bill).

Adv de Lange said that there is a need for assigning appropriate sentences for the crimes bearing in mind the Minimum Sentences Act. There might also be a need to include some of the offences under the act dealing with minimum sentences.

Prevention of Organised Crimes Act 121 of 1998
Mr P Smit went through the amendments to this Act (see Schedule of Bill). For example, the insertion in Section 1 after the definition of "property" of the definition:

(a) facilitated the commission of an offence under the Counter-Terrorism Act,
(b) enabled the person or entity to commit an offence and
(c) provided financial or economic support to a person or entity in the commission of an offence.

Adv de Lange said that one should refer to property that facilitates or is used to facilitate the commission of a crime. He felt that (a) and (b) should be merged to refer to property that enabled any person or entity to commit or facilitate the commission of an offence under the Counter-Terrorism Bill.

Financial Intelligence Centre Act 38 of 2001
Mr Smit went through the amendments to this Act (see Schedule of Bill) which deal with the reporting of suspicious financial transactions. For example, the insertion of the definition:
"terrorist financing of offence" means an offence under section 10 of the Counter-Terrorism Act, 2003.

Adv de Lange observed the use of the past tense in the amendments and concluded that it seems that the Act would only apply to property in respect to which one has already been found guilty. He wondered if this is the right wording to use in the Act.

Nuclear Energy Act 46 of 1999
Adv Jacobs proposed amending this Act to include nuclear material-related offences as recommended by the Justice Portfolio Committee.

Non-Proliferation of Weapons of Mass Destruction Act 87 of 1993
Adv Jacobs went through the amendments to this Act (see Schedule of Bill). This will criminalise the intentional use or threat to use weapons of mass destruction against citizens of the Republic or a person ordinarily resident in the Republic, whether that person is in or outside the Republic. The offence would also cover use or threat to use such weapons against property owned, leased or used by SA citizens or resident irrespective of where the property is situated.

Ms S Camerer (DA) expressed concern that if found guilty, one could be sentenced to a fine or life imprisonment. She wondered if these are suitable alternatives and felt that one needs to qualify the sentence by the nature of the offence committed.

Adv de Lange said that the Interception and Monitoring Act is vital in fighting terrorism. The Schedule to that Act should be amended to ensure that offences in this Bill are also covered by the Act

The meeting was adjourned.