Anti-Terrorism Bill: deliberations

Meeting report

PORTFOLIO COMMITTEE ON SAFETY AND SECURITY AND PORTFOLIO COMMITTEE ON JUSTICE AND CONSTITUTIONAL AFFAIRS
23 October 2003
ANTI-TERRORISM BILL: DELIBERATIONS

Chairperson: Mr M George (ANC)

Documents handed out:
Working Document Relating to Chapter 3 to 6 of Anti-terrorism Bill

SUMMARY
The deliberations on the Anti-terrorism Bill continued with Adv Nel (Legal Advisor for the Department of Justice) describing the changes to chapters three to six. The Bill's Schedule, encapsulating the amendments necessitated in other legislation, was also discussed. Changes were suggested to terms in the Preamble, such as the reference to terrorism as a phenomenon, as well as minor wording changes to enhance clarity.

MINUTES
The Chairperson asked the drafters to explain the proposed changes. Adv Nel said Chapter 3 consisted of two parts. The first dealt with offences, and consisted of the old Clauses 19, 20 and 21. The second part dealt with penalties and here the numbers of the Clauses had changed. From Clause 22 onwards, the numbering had not changed. The drafters had only made minor consequence changes.

Clause 15 (previously Clause 19)
15(2)
Adv Nel said they had inserted a reference to Clause 2 and there were no further changes.

Adv De Lange (ANC, Chairperson of the Portfolio Committee on Justice and Constitutional Affairs) said he was not sure about the drafting of Subclause 2 as the whole concept had been altered. They would have to check the obligations. It had been amended to "specified offence or terrorist activity", but terrorist activity was only a definition, not an offence. The definition of "specified offence" now included (b) so they could not put "terrorist activity" in the Bill.

Mr P van Wyk (SA Law Commission) explained that by doing this, they could link it with reporting obligations, including all of the conventions. The Director had a duty to report terrorist activities to the United Nations (UN). Adv De Lange asked if it was like Clause 3 and Mr Van Wyk said that it was.

Adv De Lange said they had to redraft (2). It should be linked to the usual process for an extradition request.

Mr Jeffery (ANC) asked on what basis a person would be taken into custody. Adv De Lange questioned whether it should be reported to the UN as there were obligations to Interpol. The issue was problematic and the wording was wrong.

The Chairperson remarked that the Bill referred to an offence outside of South Africa under the law of a foreign sate. He asked where this would put South Africa regarding extradition. Mr Jeffery said certain countries defined terrorism very broadly, which was problematic. He asked why they needed this provision.

Mr Jeffery also had a problem with the wording. He asked what would happen when someone was taken into custody for something other than terrorism, and then the authorities became suspicious of terrorism. He asked if this should also be reported. It should be catered for in the Bill.

Mr Van Wyk said that this obligation was drafted from the standard wording in the Convention. There should be an investigation into jurisdiction.

The Chairperson said the clause had to rewritten in plainer language for normal police use.

Adv De Lange read from one of the conventions. When you had information that a suspect was in your territory, you had to investigate the matter and report if the person was arrested. Adv De Lange wanted to know how you would find this information. The clause should be redrafted so it was very clear on what grounds they received information. The issues should be listed or a generic term should be found.

Mr Jeffery asked if it should be linked to convention offences. He suggested they limit the convention offences. Adv De Lange said they could look at it.

Adv Jacobs said that he agreed with Adv De Lange, but unfortunately it was not regulated in law. They were under Interpol obligations, but it was not in legislation. It had to be focused and not too wide.

The Chairperson said that the Committee agreed that the drafters would had to work on 19(2).

15(3)
Adv Swart (DA) asked if one needed to report to the UN because (3) seemed to make provision for bypassing the UN. Mr Van Wyk said that it should be done.

The Chairperson asked if everybody was happy with 15(3). Adv De Lange said he would have to consider this because of the changes to (2).

Clause 16 (previously 20)
Adv Nel said they only included a reference to Chapter 2 in this clause.

16(2)
Adv De Lange said they should have made (2) narrower. An obligation, as in 19(2) (15(2) in the new proposed amendments), should had been created. He asked where the obligation in 20(2) (16(2) in the new amendments) came from.

The Chairperson asked if there were obligations and Adv De Lange said there could be. The latter said if there was no terrorism convention, there could be no international duties. There could only have been duties under the OAU (Organisation for African Unity) Convention, but this convention made no provision for it. There were no international duties to report terrorism internationally.

Mr van Wyk reminded them of the bombing and financial conventions. Adv De Lange asked if the clause's effect was broader than these conventions and Mr Van Wyk affirmed this. Adv de Lange asked why there was no provision for similar to 19(2) (15(2) in the new draft).

Clause 17 (previously Clause 21)
17(1)
Ms Camerer (DA) asked why they had not referred to the definition of "internationally protected person" in this subclause. Adv De Lange replied that they had made it broader. Ms Camerer said this made everything more difficult and asked for reasons. Adv De Lange replied that they had to go broader for diplomatic reasons. Ms Camerer asked why they had the other definition then. Adv De Lange said the Drafters had given reasons earlier, and the clause came from the Department of Foreign Affairs. Adv De Lange accused Ms Camerer of raising issues that had been dealt with in her absence. Ms Camerer replied that Adv Swart, her DA colleague, had suggested it was a valid question. The Chairperson asked the Committee to return to the Bill.

Adv Jacobs referred the Committee to the definition in question. They had to prove that a person was entitled to protection. The same provision was found I other legislation.

Adv Swart again asked why reference to the definition was not wide enough. Adv Jacobs said the definition had an A and a B part. The A part referred to presidents etc, and the B part to persons protected through international law. There were certain qualifications that had to be met. The Chairperson said that Adv Swart was missing the point. Adv Swart said that he was happy with the definition. He wanted to know if 17(1) was narrower than the definition. Adv Jacobs said he should look at the Diplomatic Act.

Adv De Lange said that Clause 17(1) was part of the original definition of 'internationally protected persons" in (c), which the Department of Foreign Affairs had asked them to add. That Department had various Acts for diplomatic protection and was looking for a generic term without having to refer to all the Acts. This clause did not only cover the definition. Adv Jacobs had already summarised the case. Adv Swart said Adv De Lange's explanation was fine. Ms Camerer still suggested that it might be preferable to refer to the definition, as a matter of consistency. She also objected to Adv De Lange's taking issue with her.

The Chairperson appealed to Ms Camerer and Adv De Lange to not be personal. Adv De Lange conceded that reference to the definition was not necessary, but the drafters could put it in. Mr Jeffery suggested that they leave the matter and the drafters were satisfied.

17(2)
Adv Nel said there was a small amendment in (2), with the inclusion of a reference to Clause 3. Adv De Lange asked if references to Clauses 12 and 14 should also be included. Advs. Nel and de Lange agreed that they had created an offence.

17(3)
Adv De Lange asked why there were only references to Clauses 4 and 11 and said it should be made clearer. Adv Nel said it previously formed part of Clauses 4 and 11 and they had taken it over without consideration. Mr Van Wyk agreed that it might be very vague. He suggested that they go broader than Clauses 4 and 11. Adv De Lange said it should be amended and the Committee agreed.

17(5)
Adv Nel said they included the words "or suspecting" after the word "knowing" in (5). They had also deleted the repetitive subclauses.

Mr Jeffery said that the word "suspecting" was negative, and that a replacement of "believing" would also be too vague and broad. He also asked if the protection of human rights would include humanitarian aid. Adv De Lange said that there was a definition for knowing, suspecting etc and 17(5) are not completely correctly drafted. The issue was covered already but they should remove duplication. Adv Swart said Mr Jeffery had a valid point, but they should keep it as it was for consistency. Mr Jeffery was satisfied with this proposal. Adv Nel thought that humanitarian aid and human rights seem to be covered. Adv De Lange suggested that 17(4) and 17(5) change places.

Clause 18 (previously Clause 15)
Adv Nel explained that this clause dealt with penalties, and went through the various subclauses below:

18(1)(a)
They had amended the reference to the other clauses.

18(1)(a)(i)
They had changed the penalty to a fine or life imprisonment.

18(10)(b)
This clause only referred to sections 3 and 11 now.

18(1)(c)
They had to refer to specific sentences. He proposed 15 years.

18(1)(f)
This paragraph had been included.

18(2)

(a) and (b) had been included in 18(2).

Discussion
Adv Swart said he was not comfortable with increasing the powers of Magistrate's Courts. Adv De Lange said he was satisfied with the way it was worded now, and the sentence of 18 years gave them some flexibility. They did not want to clog up the higher courts, but he did not think that it should be kept as it was. He said in 18(1)(c)(ii), they should make the sentence five years as well.

The Chairperson asked Adv Swart if all cases had to go to the High Court as he thought some of the less serious cases could go to the Magistrate's Court. Adv Swart said he was uncomfortable about empowering a magistrate to fine somebody R10 million, but he was happy with the imprisonment sentences. Ms Camerer said minor terrorism would only be accessories, middlemen, failing to report a case and the like - terrorism could not be seen as a minor crime. The Chairperson insisted there could be minor cases and she conceded.

Adv De Lange suggested that they prescribe a fine of R250 000 for the Magistrate's court.

Adv Nel said in (a) and (b), they did not prescribe specific crimes, but years of imprisonment, so the normal fine restrictions of the courts would be relevant. He asked if Adv De Lange's suggestion were out of proportion.

Adv Swart asked, if (c) was about financial crimes, where would fines fit in. Adv De Lange replied that asset forfeiture was an option. The Chairperson said they seemed to have come to some conclusion.

Adv De Lange asked if the Law Commission had given any consideration to hoaxes and how the guilty person could repay. He asked if civil action could be taken. Mr Van Wyk said it was only recommended that the person reimburse the expenses accrued. Adv De Lange asked the Law Commission to look into the prospects for civil actions. Adv Jacobs said there was a mention of it in the Gatherings Act. Adv Nel said he would also look into the matter.

Clause 19 (previously Clause 16)
19(1)
Adv Nel said they had changed a reference to section 10 to a reference to Section 4.

19(3)(b)
They had also changed a reference to section 17(1) to a reference to 20(1).

Discussion
Adv De Lange said they should say if a person was convicted under section 4 for any specified offence. Adv Nel said all the other offences could fall under the Criminal Procedure Act. Section 4 referred to specific property. Adv De Lange said they needed further clarity and should flag the issue. He could not think of any reason why they should not include all offences. Adv Nel said they would also need to look at Clause 22. Adv De Lange agreed and said it was much wider.

Adv Swart suggested that "must" should be used. Adv De Lange said that maybe it could be used.

Clause 20 (previously Clause 17)
20(2)
Adv De Lange said that the issue of three years was confusing. Clause 19(3) says that property only had to be kept for 90 days. He said 20(2) was not a prescription and they did not need a prescription period. They should wait until all the drafters were present. There was a complete contradiction between 20(2) and 19(3), and they should flag this issue. Ms Camerer said it seemed to be an anomaly. It would be unreasonable for innocent people to lose their property in 90 days.

Adv Swart enquired about the prescription. Adv Nel said there was a provision in the Bill for the compensation of innocent people. Adv Swart said that, if this was the case, there was no contradiction between 90 days and three years. Adv De Lange said citizens had certain duties to make sure their properties were not used for terrorism. The chance that ordinary people would be affected was small. South Africa was very lenient compared to the USA and they had tried to create a different procedure, mostly for banks who loaned money. They would have to wait for all the drafters to be present to make a policy decision. Adv Swart agreed and asked if they wanted to put in any reasonable obligation on the part of the state to find out to whom the property in question belonged. The Chairperson asked if they could agree to wait for all the drafters and that they had to be very careful not to put too many obligations on the state. Mr Van Wyk said that the Prevention of Organised Crime Act made a provision for people to apply within 45 days. Adv De Lange said it was not completely comparable, but it was a good guide.

Clause 21 (previously Clause 18)
Adv Nel said the amendments in the first two lines, references to 19(1) and 20(2), were consequential.

Clause 22
Adv Nel said this Clause dealt with investigating powers.

22(1)
Adv Nel said (i) and (ii) had been shifted from (b) to (a), and 22(1)(a)(ii)(cc) has been added. These amendments were just restructuring. Adv De Lange said they previously had a problem with the word "enterprise" and he saw it had been removed. Adv Nel said they are now only referring to "entity". Adv Jacobs said that they should put in a reference to the definition of police officer. Adv De Lange asked how they would do this as he was not sure that it would be correct. In 22(1)(b) they referred to the commission of an offence "in a building". He asked about property with regards to 22(1)(c)(ii) and Adv Nel referred him to 22(1)(c)(2).

Adv De Lange asked if "and (b)" should be included in 22(1)(c)(ii). He also said the heading of the chapter had to include "and related activities". The drafters should look at the technicalities.

Clause 23 (previously Clause 26)
Adv Nel said they had removed 23(1)(c) and 23(1)(d). Adv De Lange asked that they flag these amendments. The Committee agreed.

Clause 24
Adv Nel said there were no changes made to this Clause.

Clause 25
Adv Nel said they had amended it so that it only referred to the President. The phrase "person or entities" had also been altered so that only the word "entities" were used now. They had also inserted "related activities", and 25(c) had been removed.

Adv De Lange wanted to know the difference between (a) and (b). Adv Jacobs said (b) was a request from the Department of Foreign Affairs. He said there also was a Bill being drafted by the Department of Justice dealing with decisions of the UN. Adv De Lange said they would have to come back to this later.

Clause 26
The word "consideration" had been inserted. The Chairperson said that was what they requested.

Clause 27
Adv Nel said that this clause only referred to the Schedule where they had brought in certain amendments.

Clause 28
Adv Nel said they had changed the short title. They did not know if the 1 January 2004 specified for the Bill to come into operation, was realistic. Adv De Lange said it was not realistic and they would flag this.

Schedule

The Extradition Act
This was the first Act the Schedule dealt with. Adv Nel said 22(1) of this Act had been split into (a) and (b) and they would have to reword (b). The other amendments were only consequential.

Adv De Lange asked why they needed (1). Mr Van Wyk said there was a question of dual criminality and the provision had been wrongly inserted. He said 22(1) did not make sense and it would be better to scrap it. Adv Nel said he do not know if extra-territorial jurisdiction was reflected in the Act. Adv De Lange felt this was not needed and that they should scrap 22(1). They also needed to change the heading. The Chairperson said he thought the issue was covered. Adv De Lange proposed that they change 22(3) to 22(1), and 22(4) to 22(2) and 22(2) to 22(3), and that 22(1) be scrapped.

Criminal Procedure Act
Adv Nel said they had changed the name of the Bill and some sections. Adv De Lange said they left out sections 3, 11 and 12 of the Bill. Adv Nel said they had made no changes in this regard. For consistency, they put in the whole of Clause 14. Adv De Lange suggested that they put in sections 4(1), 2, and 3(2)(a) in the schedule, as well as 5, 13, and 14. Adv Nel agreed.

Internal Security Act
This Act would be repealed. The Committee agreed to this.

Non-Proliferation of Weapons of Mass Destruction Act
Adv Nel said they had only changed the last paragraph to bring it in line with sentences.

Criminal Law Amendment Act
Adv Nel said that Part 1 of Schedule 2 proposed an amendment to refer to serious crimes. They had also amended the name of the Bill. Adv De Lange asked about the sentences. Adv Nel said they now had a problem with the length of the sentences. Ms Camerer said they had to distinguish between sentences. Adv De Lange said there was a problem with the words "common purpose" but was not sure of a solution, and they should flag it. Ms Camerer said that this was drafted before they changed the definitions and had to be looked at again. The Chairperson agreed and said they would consult later on this matter.

Long Title of the Bill
After the lunch break, Advocate P Jacobs said that the Long Title of the Bill should read: " to provide for measures to prevent and combat terrorist and related activities, to provide for offences related to terrorist activities, to give effect to international instruments dealing with terrorism and related activities, and to provide for matters connected therewith.

Advocate J de Lange (ANC) felt that the title should start with ' to give effect to international instruments dealing with terrorism and related activities' and then proceed to with the other objectives. The Title should also cover other offences dealt with in the Bill.

Mr M George (ANC) and other members of the Committee disagreed with Advocate de Lange's formulation because the main aim of the Bill was not to deal with international obligations, but to legislate for measures for fighting terrorism in the Republic.

Preamble
Advocate Jacobs said that "specified offences, including terrorism" had been added in the second paragraph.

Advocate P Swart (DA) said that there was no need for the words 'including terrorism' since terrorism was part of the specified offences. Advocate de Lange agreed.

Advocate de Lange for an explanation of the reference to terrorism as a phenomenon in paragraph 3. He felt that the Preamble should refer to terrorism and related activities, instead of terrorism as a phenomenon.

Advocate Jacobs read the fourth and subsequent paragraphs and suggested that 'international', as used before 'instruments', should be deleted from all paragraphs. He also indicated that paragraph 7 mistakenly referred to an African Union Convention instead of an OAU Convention. Advocate G Nel indicated that the AU had decided to adopt and change the names of OAU Conventions to AU Conventions.

SCHEDULE OF LAWS AMENDED OR REPEALED: SECTION 27

Criminal Law Amendment Act 105 of 1995
Advocate Jacobs said that some provisions had been added to Part 1 of Schedule 2 of this Act.

Advocate de Lange said that section 4 and (c) to (e) should be deleted from item 1, and that section 14 should be added. He also suggested that (f) read 'created a serious public emergency situation of insurrection'. If a person was found guilty of any offence in terms of the specified sections, the court had to hand down the minimum sentence of life imprisonment unless special circumstances directed otherwise.

Item 2 also added some provisions to Part II of Schedule 2. Advocate de Lange said that Section 14 should be added to the section specified in item 2(a). If the court found the person guilty of an offence specified in the section mentioned in item 2(a), the court had to consider the minimum sentence but had discretion.

Prevention of Organised Crime Act 121 of 1998
Advocate Jacobs said that the long title of the Act had been substituted. The new title made reference to 'property' instead of 'assets', and also to terrorist and related activities, as suggested by members of the Committee.

Ms S Camerer (DA) asked why they had replaced assets with property. Advocate de Lange said that the Bill spoke of property and not assets, and therefore it was wrong to use the word assets in the long title. Advocate Jacobs added that the Bill contained a definition of property and not assets.

Advocate Nel said that items 4(c) and 5(c) should be property associated with terrorist and related activities.

Nuclear Energy Act 46 of 1999
A new section 34A had been inserted into this Act.

Advocate de Lange asked why attempts and participation were not covered in the new section. The presenter said that such offences were covered in the principal Act.

Financial Intelligence Centre Act 38 of 2001
The Long Title of this Act has been substituted and the new title contained reference to the financing of terrorist and related activities. A new section 28A was also introduced. This section was based on earlier drafts and therefore contained no new principles.

Advocate Swart noted that Subclause 1 (a) referred to any person or persons and (d) refers to persons and entities. He wondered why the subclauses did not refer to same things.

Regulation of Interception of Communications and Provision of Communication related Information Act 70 of 2002
Item 2 in the Schedule of the Act was substituted and item 3 on sabotage was deleted.

The meeting was adjourned.