Anti-Terrorism Bill: deliberations

Meeting report

SAFETY AND SECURITY, JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEES: JOINT MEETING
11 November 2003
ANTI-TERRORISM BILL: DELIBERATIONS

Chairperson: Mr M George

Relevant documents:
Anti-Terrorism Bill (Working Document, 10 November 2003)

SUMMARY
The drafter presented the latest draft of the Bill and went through the latest amendments with the Committee. He indicated that some of the amendments were necessary to provide a coherent and consistent structure to the Bill. The Committee approved the amendments.

MINUTES
Long title
Dr P Jacobs (Department of Safety and Security: Legal Drafter) said that the long title of the Bill would read as follows:
" To provide for measures to prevent and combat terrorist and related activities; to provide for an offence of terrorism and other offences connected to terrorist activities; to provide for convention offences; to give effect to international instruments dealing with terrorist and related activities; to provide for measures to prevent and combat the financing of terrorist and related activities; to provide for investigative measure in respect of terrorist And related activities; and to provide for matters connected therewith"

Preamble
The drafter said that the words "terrorist and related activities" have been added in various paragraphs of the preamble. he also said that the OAU conventions are referred to in the Bill as OAU conventions and not AU conventions even though it has become a practice to refer them as AU conventions. He went on to add that the paragraph beginning with "and whereas terrorist activities…" has been deleted. Members agreed that there were no problems with the preamble

Index
Dr Jacobs said that clause 5 to and inclusive of clause 10 have been rearranged. The headings of some other clauses have also been changed. He proposed the addition of the words "and savings" in item 27 of the index. Adv J de Lange (ANC) suggested that the words "transitional arrangements" should be used instead of "and savings".

Clause 1 Definitions
Convention offence
The drafter said that a convention offence has been given a specific meaning having regard to reference to the definitions of 'specified offence' and 'terrorist or related activities' in this clause and clause 15(2).

Entity
The drafter said that an entity means, for the purposes of clauses 3, 4 and 14, in so far as it applies to clauses 3 and 4, 22,23 and 25 as 'a natural person, or a group of two or more natural persons, (whether acting in furtherance of a common purpose or conspiracy or not), or a syndicate, gang, agency, trust, partnership, fund or other unincorporated association or organisation, or any incorporated association or organisation or other legal person, and includes-
where appropriate, a cell ,unit, section, sub-group or branch thereof or any combination thereof'.

Explosive
Dr Jacobs said that with reference to the definitions of 'explosive and other lethal device' in this clause and clauses 5 and 13 means an explosive as referred to in section 1 of the explosives Act, 2003. He also indicated that the word 'weapon' has been deleted from the definition of an explosive.

Firearm
The drafter said that the definitions of a firearm and a weapon have been deleted.

National Commissioner
Adv. Jacobs said that the definition of a National Commissioner is new and refers to the National Commissioner of the South African Police Service appointed in terms section 207(1) of the Constitution.

Police officer
Dr Jacobs said that a police officer for the purposes of clauses 12, 15(4) and 22(2)(b) means a member of the SAPS whereas for the purposes of clause 24 it includes a member of the SA National Defence Force

Chapter 2
Clause 2 Offence of terrorism
The drafter said that the words 'or engagement' have been removed from clause 2(2).

Clause 3 Offences associated with or connected to terrorist activities
Adv de Lange asked as to why the drafters referred to offences connected to and not connected with.

Adv G Nel ((Department of Justice: Legal Drafter) said that the Bill refers to offences connected to and that it is important to consistently use the same expressions. Adv de Lange said that the heading should refer to offences associate with or connected with terrorist activities.

Clause 4 Offences associated with or connected to financing of specified offences
Adv de Lange said that this should refer to offences connected with financing of specified offences. The drafter indicated the deletion as well as addition of sub-clauses in this clause.

Ms S Camerer (DA) pointed out the incorrect deletion of the words 'is property' in 4(3).

Clause 5 Offences relating to explosive or other lethal devices
Dr Jacobs said that the words 'purpose' and 'amongst others' have been added to the clause.

Ms Camerer said that the clause should say '… with the purpose, amongst others, of causing'. She also felt that the clause should not refer to a person who intentionally does something with a purpose as the words include each other.

Adv de Lange felt that such a construction would seem to imply that, for instance, the planting of a bomb which has not yet caused anything would not be covered by the clause.

Clause 6 Offences relating to hijacking, destroying or endangering safety of a fixed platform
The drafter indicated that the word 'hijacking' has been added to the heading whilst the word 'they' has been deleted. He also pointed out some addition to and deletion from the clause.

Clause 7 Offences relating to taking of hostage[s]
Dr Jacobs said that sub-clause (b) has been added and this refers to any person who intentionally "threatens to kill, to injure or to continue to detain" any other person. He also indicated additions to the clause and some deletions from the clause.

Adv de Lange asked if the issue of threatening should not be dealt with in terms of clause 14.

Dr Jacobs said that given the nature of the offence dealt with in this clause it is necessary to deal with threats herein.

Clause 8 Offences relating to causing harm to internationally protected persons
The drafter said that the words 'causing harm' have been added to the clause.

Clause 9 Offences relating to hijacking of an aircraft
The drafter said that that this clause overlaps with the Civil Aviation Act. He said that it is important to deal with the hijacking of aircraft in this clause since the Civil Aviation Act does not address this issue.

Ms Camerer said that the last sentence of the clause should read " is guilty of an offence of hijacking an aircraft". Adv Nel said that the heading of the clause would have to change as to accommodate Ms Camerer's suggestion.

Clause 10 Offences relating to hijacking or endangering safety of maritime navigation
The drafter said that the words "which is likely to endanger the safe navigation of that ship" have been removed from sub-clause (a).

Ms Camerer said that the heading and the last sentence of the clause should refer to 'hijacking a ship or endangering of maritime navigation'.

Clause 12 Duty to report presence of person suspected of intending to commit or having committed an offence and failure to so report
The drafter read the clause and indicated additions as well as deletions from the clause.

The Chair asked the drafter to indicate as to which police officer is referred to in sub-clause (1)(b) given the fact that a police officer means both a police officer in the strict sense of the word as well as a member of the SANDF.

The drafter said that reference is to a police officer in the strict meaning of the word.

Clause 13 Offences relating to hoaxes
Adv de Lange said that sub-clause (1)(a) does not deal with a hoax whilst (b) does. He also wondered if sub-clause (a) should refer to explosive or other lethal device. He went on to say that sub-clause (a) should be made clear that it deals with hoaxes.

Both Ms Camerer and Adv P Swart (DA) agreed that sub- clause (1)(a) does not show that it deals with hoaxes. Ms Camerer felt that Sub-clause (1)(a) and (b) should be merged.

The Chair disagreed with Ms Camerer's suggestion to merge the sub-clauses. He felt that they do not deal with the same issue hence they should not be merged.

Dr Jacobs said that he would redraft the clause to make it clear that it covers situations wherein a person induces a false belief that a substance of other device exists.

Clause 14 Threat, attempt, conspiracy and inducing another person to commit an offence
Dr Jacobs said that this clause remains the same apart from the substitution of the word 'Act' by the word 'chapter".

Clause 15 Jurisdiction in respect of offences
Dr Jacobs said that the words 'referred to in Chapter 2 and the Schedule' have been deleted from sub-clause 1. He pointed out the addition of clauses 2 to 6. He indicated that sub-clause (3) deals with the jurisdictional facts whilst sub-clause (4) deals with conspiracy and incitement.

Adv Swart indicated that the numbering of sub-clauses should be corrected after sub-clause 6. He also said that sub-clause (8) should refer to sub-clause (7) and not sub-clause (4).

Ms Camerer said that sub-clause 15(4) should refer to an accessory after the fact and not an accessory after the offence.

Adv de Lange said that sub-clause (10) should be moved to the definition clause.

Clause 16 Consent of National director to institute proceedings and reporting obligations
Dr Jacobs said that the words 'if a person is prosecuted for any offence referred to in section 2, or any convention offence' have been deleted.

Adv de Lange asked if the duty to exists even in cases wherein the court gives a verdict of not guilty. Dr Jacobs answered in the affirmative.

Adv Swart said that the words 'involves' in sub-clause 2(d)(ii) and 'remain' in sub-clause 2(d)(iii) should change to 'involved' and 'remained' respectively.

Clause 18 Penalties
Dr Jacobs indicated that in terms of clause 18(1)(c), the penalty for contravention of clause 4 is in the High Court, a fine not exceeding R100 million or imprisonment not exceeding 15 years whilst in in the Magistrates courts the penalty is fixed at a fine not exceeding R250 000,00 or imprisonment not exceeding 5 years.

Clause 19 Declarations of forfeiture on conviction
Dr Jacobs indicated that the period of 90 days referred to in sub-clause (3)(a) has been reduced to 45 days.

Clause 27 Amendment and repeal of laws and savings
Adv de Lange said that the heading should refer to transitional arrangement s and not savings.

Clause 28 Short title and commencement
Adv de Lange said that the commencement date should be 31 March 2004.

Schedule of laws amended or repealed
Extradition Act 67 of 1962
Dr Jacobs indicated the insertion of a new section 22 to the Act

Criminal Procedure Act 51 of 1977
Dr Jacobs indicated that new offences have been added to Schedules 5 and 6 of the Act. He also said that reference to clause 14[(1)(a) or (c)] in the amendment to Schedule 5 has been deleted.

Adv de Lange said that clause 14 should be added to the amendments to both Schedules.

Internal Security Act 74 of 1982.
The whole Act has been repealed.

Non-proliferation of Weapons of Mass Destruction Act 87 of 1993

Dr Jacobs said that section 26(1) of this Act has been amended by the substitution for paragraphs (h) and (k). A new subparagraph (v) has also been added.

Criminal Law Amendment Act 105 of 1997
This Act has been amended by the addition of items 1 and 2 to Part 1 of Schedule 2. Dr Jacobs said that clause 4 and the word 'or' have been deleted from item 1.

Prevention of Organised Crime Act 121 of 1998
Dr Jacobs said that the long title of the Act has been substituted. He went on to say that the definitions of an 'entity' and 'property associated with terrorist and related activities' have also been added. He also indicated that the words 'terrorist and related activities' have been added in various places.

Adv Swart asked as to why item 3(b) does not refer to financial services.

Dr Jacobs said that it is not financial services that could be forfeited but tangible assets.

Nuclear energy Act 46 of 1999
Dr Jacobs said that this Act has been amended by an addition of a new section 34A and the insertion in subsection 56(1) of a new paragraph (h) which refers to 'performing any act prohibited in terms of section 34A'.

Adv de Lange asked if one could not have attempts in respect of item 1(a) to (d) and (f).

Financial Intelligence Centre Act 38 of 2001
Dr Jacobs said that this Act has been amended by the substitution of the long title and the substitution for section 3(1) by a new section. A new section 28A has also been added after section 28 of the principal Act.

Adv de Lange said that the words 'an offence relating to the financing of terrorist and related activities' should not be deleted from item 6(c).

Regulation of Interception of Communications and Provision of communication-related information Act 70 of 2002
Dr Jacobs said that the Act has been amended by the substitution for item 2 in the Schedule. He asked if item 2 should not refer to any specified offence.

Adv de Lange said that one is concerned with communications that take place in South Africa. He said that one does not expect the giving of directions to intercept and monitor communications elsewhere in the world without proper agreements between countries.

The meeting was adjourned.