Anti-Terrorism Bill: deliberations

Meeting report

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

Chairperson: Mr M George (ANC) [Safety and Security]

Relevant documents
Draft Anti-Terrorism Bill - 8 October 2003

SUMMARY
Deliberations on the Anti-terrorism Bill continued with discussion of proposed amendments. Adv G Nel (Department of Justice), Adv P Jacobs (Department of Safety and Security) and Adv J De Lange (ANC, Chairperson of the Portfolio Committee on Justice and Constitutional Affairs) explained the proposed amendments. The definitions (Clause1) and Clauses 2-5 were debated. After lunch, Clause 6 was amended to clarify the offence and to avoid duplication with other Clauses. The Department stated that the previous reference to "bombings" had been removed from Clause 7, because it was comprehensively dealt with in the Explosives Act. Clause 8 had been restructured to read better. The reference to "hijacking" was inserted in Clause 10 and Clause 6, and Members decided that the Clause should be split into two parts dealing with destruction and damage to a fixed platform. Clause 12 was also divided into two sections, the first dealing with the suspicion of the commission of an offence by any person, and the second dealing with knowledge of the location of that person. The Committee decided that both these elements had to be present to constitute an offence.

MINUTES

Title and Preamble
The Committee agreed to leave discussion of the title of the Bill, and its Preamble, until a later stage.

The Chairperson asked Adv Nel to explain the amendments to the definitions.

Chapter 1: Definitions and Interpretation
Clause 1: Definitions
1(i) Convention offence
Adv Nel explained that the only change was the replacement of "conventions" with "events". The Chairperson asked if the Committee was happy with this amendment. Ms S Camerer (DA) said she was reasonably satisfied but had not taken the issue back to her caucus.

1(ii)
Adv Nel said there were no changes to 1(ii).

1(iii) entity
Adv De Lange said two issues needed to be sorted out. Firstly, the three subclauses 1(iii)(a), 1(iii)(b) and 1(iii)(c) were completely new. He asked why they had been inserted as they seemed to be part of the definition. Secondly, he enquired where "entity" was used in the Bill to see if the definition provided was sufficient and made sense. They would also had to change some technicalities.

Adv Nel said that the person who drafted 1(iii)(a), 1(iii)(b) and 1(iii)(c), Adv P Smit, was overseas, and he could therefore not offer an explanation. Adv Nel concurred that there seemed to be much repetition. Ms Camerer and Mr J Jeffery (ANC) agreed. The latter was not sure if it was necessary to put in the possible ramifications. Adv P Swart (DA) said there had to be a reason why it had been inserted and did not see a need to specify. Adv Nel said the repetition was necessary in this case; it would be difficult to be clear without the repetition. Mr M Booi (ANC) said it was difficult to debate something that had not been explained and suggested that they either cut it or come back to it at a later stage. Adv De Lange also suggested that they "flag" 1(iii)(a), 1(iii)(b) and 1(iii)(c) until they had more clarity.

Adv De Lange said that in subclause 3(2), "entity" was only found once. It was used often in Clause 4, but not in Clause 21. It was also included in Clauses 22, 23, and 25. He said there might be an easy solution.

1(iv) explosive
Adv De Lange had a problem with this definition. He wanted to know if the definition of "explosive" should not also be covered in 1(v), which dealt with "explosive or other lethal device".

1(v) explosive or other lethal device
Adv De Lange said that they had to change "terrorist activity" to "weapon". Clauses 13 and 7 did not refer to "weapon". Ms Camerer did not see the need for this proposed change. The Committee moved on to the next definition.

1(vi) firearm
Adv Nel said that a definition of firearm had been included in the proposed amendments. Adv De Lange said they should again put in a reference to the definition of "weapon".

1(vii) fixed platform
No changes were made to this definition.

1(viii) instruments dealing with terrorist and related activities
Adv Nel said that the words "and related activities" were added as requested by the Committee. Adv De Lange said that the detail had been left out and they should put it in the right order later. Ms Camerer said that in the Preamble, they dealt with a proper description, but this was not the case here and they should do so for clarity. Adv De Lange said they were not looking at the Preamble at that moment. Adv Swart said that only some words were in italics and asked the drafters to sort it out.

Mr Jeffery raised two issues. Firstly, he said provision should be made for the Minister to add new conventions. Secondly, they could not refer to the African Union in 1(viii)(m) since at the time of that Convention, the AU did not exist. The Chairperson said that the first issue had been talked about in the Committee. Adv De Lange agreed with Mr Jeffery on his second point. He said the organisation was known as the Organisation for African Unity (OAU) at the time of that convention, and this should be reflected in the Bill. The Chairperson agreed that it be corrected.

1(ix) infrastructure facility
No changes were made to this definition.

1(x) international organisation
Adv Nel said no changes were made to this definition. Adv De Lange said they should add a reference. Adv Nel was not sure if that was necessary but Adv De Lange insisted. Ms Camerer said there should be a reference to Clauses 8 and 9.

1(xi) intergovernmental organisation
No changes were made to this definition.

1(xii) internationally protected person
Ms Camerer said there should be a reference to Clause 9. Adv Nel explained that there had been one Clause added and that the drafters had not yet made the consequential amendments. Adv De Lange asked the drafters to make sure that the technical matters were right. Adv Nel agreed to do so.

1(xiii), 1(xiv) and 1(xv)
There were no changes made to these definitions.

1(xvi) place of public use
Ms Camerer said they should refer to Clause 7.

1(xvii), 1(xviii), 1(xix)
There were no changes and comments made about these definitions.

1(xx) ship
Ms Camerer said this definition did not make sense and should be changed. Adv De Lange said it was not problematic but questioned if it was necessary. Adv De Lange said the reference to Clause 10 should not be there and the Chairperson agreed.

1(xxi) specified offence
Adv De Lange said this was a major change for consideration. He was not convinced that legally or constitutionally, Clause 1(xxi)(b) was needed. The definition needed more work. Ms Camerer shared this concern. Adv Nel said this amendment was difficult to explain since it was written by the absent Adv Smit. Adv De Lange said it could work. He then referred the Committee to Clause 4 and suggested they flag the issue. He also asked the drafters to consult with the State Law Advisors regarding its constitutionality. The Chairperson suggested that they try to contact Adv Smit and do what Adv De Lange proposed.

Adv Nel pointed the Committee to Clause 19(2), and said that it addressed the same problem. Ms Camerer said it repeated what was already in the definition. Adv De Lange said they should add references to the applicable clauses. The Chairperson said the issue would be flagged.

1(xxii) State or government facility
No changes were made to this definition.

1(xxiii) terrorist activity
Adv Nel explained that there were two options regarding this definition. In option one, there were no real changes from the original. Adv Nel wanted to know if "harm" (in the first line after 1(xxiii)(a)(viii), was the correct word to use. Adv De Lange felt that it was a generic name and thus not problematic. Adv De Lange said that the Committee never discussed the second option, and it was not what they wanted. The Chairperson suggested they scrap it and the Committee agreed.

Adv De Lange suggested small changes to the definition (first option). He said the words "or refrain" should be in 1(xxiii)(b)(iii), but without the brackets. He also said 1(xxiii)(b) should refer to subparagraphs (ii) and (iii), and not (i) and (ii). The Chairperson gained consent that all members of the Committee were happy with these suggestions.

Adv Nel said there was no real change, but he asked if the definition should only refer to related activities. Adv De Lange said they were instead trying to find a generic name. Adv Nel said this seemed incorrect. Adv Swart asked what related activity would not also fall in the definition for terrorism. Adv De Lange said he thought Adv Nel was reading the definition incorrectly. Ms Camerer said they had a useful broad definition for terrorist activity but also definitions for terrorist and related activities, and found this confusing. Adv De Lange said they had already discussed this matter. The Chairperson said there did not seem to be a fundamental difference. Adv De Lange said he does not think there was a problem, but they should tighten up the issue.

Adv Nel suggested that they put (b) in (xxv). Adv De Lange did not agree with (b) and said it should be deleted or include the definition for terrorist activity. Small technical amendments were needed as there was repetition. Ms Camerer said they had to be consistent. Adv De Lange suggested that they rather remove the word "explosive". The Chairperson asked if the drafters were happy and Adv Nel agreed, remarking that there were other repetitions. He inquired after nuclear devices. Adv De Lange asked to flag the issue and the Committee agreed.

Clause 1(2) - (7)
Adv Nel said there were no changes to subclauses 2-7.

Adv De Lange commented that 1(3), which was taken from the OAU resolution, stated that liberation movements, if within international law, were not terrorist movements. This was in contradiction to 1(4). He suggested that they add "subject to (3)" in (4). Secondly, he said (7) should be (2), and the other paragraphs should be numbered accordingly.

Lastly, Adv De Lange said that (6) was a standard Clause in other Acts. He asked if it was a problem if "known" and "suspected" were used interchangeably. He suggested that both be used every time. Adv Jacobs proposed that they use one phrase consistently, using both "known" and "suspected". Adv De Lange agreed that they should have both options and the Committee agreed.

Ms Camerer asked for an exact explanation of "any action used during armed struggle" in subclause 3. Adv De Lange said it was the words used in international law and the OAU Convention and there should be no problem. Ms Camerer was satisfied with this answer. Adv De Lange said they might have to add something like "as defined in this section" at the end.

Ms Camerer expressed her concerns about international terrorist sympathisers in South Africa. Adv De Lange said this was not a problem, since international law provided protection and this would fall under the definition of terrorism. The Chairperson agreed that it was covered.

Chapter 2: Offences and Penalties
Part 1: Offence of terrorism and offences connected to terrorist activities
Adv Nel explained that Chapter 2 dealt with offences in three parts. The first part dealt with terrorist offences and offences associated with and connected to terrorist activities. The second dealt with convention offences and the third part with other offences. Adv De Lange said the drafters had arranged the clauses in this chapter very well.

Clause 2: Offence of terrorism
Adv Nel said it would be possible to put in a reference to the definition in 2(1). Adv De Lange said that the word "of" should be put in the right place.

Clause 3: Offences associated or connected with terrorist activities
Adv Nel said they had included 3(1)(a) and 3(1)(b) since the previous draft.

Mr Jeffery said there was an overlap between (a) and the definition, and he thought (a) should fall away. Adv De Lange agreed, or suggested that "or suspect" be included. He also said the words "or entity" should be added twice in this clause. Mr Jeffery said the definition only referred to 2(1) and it should include a reference to Clause 3. Adv Nel agreed.

Chapter 2, Part 2: Convention offences
Clause 4: Offences associated or connected with the financing of specified offences
Adv Nel said the whole of Clause 4 was new.

The Chairperson asked the Whips of both Committees to speak with the Whips of the Portfolio Committee of Intelligence and the Portfolio Committee of Foreign Affairs. Adv De Lange said he had received a document from the Director-General of Foreign Affairs and forwarded it to the drafters. He asked the drafters to print it, and their responses, and provide these to the Committee. Adv Jacobs said the document had already been dealt with, but he would provide it to the Committee.

4(1)
Adv De Lange said it was much better than the previous Clause 4. He suggested that some technical changes be made to the wording. Adv De Lange said 4(1)(f) and 4(1)(g) create separate things for three different concepts and asked for clarity. He also said that as 4(1)(ii) was dealt with in Clause 14, it should be taken out. He also suggested that 4(1)(iii) be redrafted or left out. Adv Nel agreed with these suggested amendments.

4(2)
Adv De Lange said that they should add "in whole or in part". Regarding 4(2)(a)(i), Adv De Lange said they should add "or facilitation of commission" after the word "commission". With regards to 4(2)(a)(i)(aa) and 4(2)(a)(iii)(aa), Adv De Lange said they should remove "attempt".

Adv De Lange also asked if 4(2)(a)(iii) was correct and whether terrorism could have "proceeds". He thought it should be completely deleted.

Adv De Lange asked why possession was not dealt with in 4(2)(b) and why economic support was not dealt with in 4(2)(c). The Chairperson suggested that they wait for Mr Smit to answer these questions.

Clause 5: Offences relating to hijacking of an aircraft
Adv Nel explained that they had replaced "hijacking" with "offences relating to" in the heading. Adv Swart said the first sentence of this Clause did not make sense and Ms Camerer added that the grammar was incorrect. Adv De Lange suggested that they put in "intentionally" and replace "with intent" with "the purpose of". Mr Jeffery said they need the word "intention". Ms Camerer said she could not see why they need "intentionally" twice. Adv De Lange disagreed. He said South Africa had signed a Convention so they should create a wider crime than just a convention crime. Adv Jacobs remarked that the drafters had created confusion in an attempt to create uniformity. Ms Camerer wanted to know why they took a "roundabout route" in the last sentence. Mr Jeffery said that Adv De Lange's suggestion addressed his concerns. There were at least three conventions dealing with the seizure of aircraft. He suggested that they divide the Clause into three subsections for each. Adv Swart disagreed and suggested that the wording be changed. Adv De Lange thought that the most appropriate way would be to follow Mr Jeffery's route.

Adv Jacobs said that their intention was to provide for the seizure of aircraft. Related crimes were being dealt with in other legislation. Adv De Lange wanted to know why 5(a), 5(b), 5(c) and 5(d) were inserted. Adv Jacobs replied that they did not seem necessary.

The Chairperson asked what would happen with a non-South African aircraft. Adv Jacobs all countries had these laws.

Mr Jeffery said he wanted a law dealing with terrorism on aircraft, but if it were not possible, he would go with the rest of the Committee. The Chairperson reminded him that they were dealing with conventions.

Adv Swart said they were only going to make provision for one crime. Adv Jacobs agreed to drop 5(a), 5(b), 5(c) and 5(d). Adv De Lange asked if it was already covered by the Civil Aviation Act. If this was the case, it should be dropped. The Chairperson asked the drafters to cover what was not already covered in legislation.

Clause 6: Offences relating to endangering the safety of maritime navigation
Adv P Swart suggested that "or" at the end of subclause (e) be deleted. Adv. Nel agreed.

Adv de Lange questioned the inclusion of "or threat" in 6(a), as this was already included in Clause 14. Secondly, he questioned the inclusion of the attempt liability in 6(g), as this was also covered in Clause 14. He suggested that the inclusion of the phrase "which was likely to endanger the safe navigation of that ship" had narrowed the scope of the offence.

The Chair stated that the same reasoning would apply to 6(b), as the fact that the person had performed an act of violence against a person onboard, should constitute an offence. Adv Nel agreed that the act itself should constitute an offence.

Adv de Lange proposed that "or hijack or" be inserted in this clause and in the heading. The phrase "which was likely to endanger the safe navigation of that ship" should be deleted, as well as the attempted liability in 6(g) and the "or threat" in 6(a). Adv Nel agreed.

Clause 7: Offences relating to explosives or other lethal devices
Adv Nel said that "or bombing" was deleted after the word "offence" in the last line, because it did not relate to the content of the clause.

Adv de Lange suggested that "or with a purpose to cause" be inserted after "with the intent to cause", as this would ensure conformity throughout the provisions that dealt with offences.

Dr Jacobs replied that the current wording was included to mirror the corresponding provision in the Bombings Convention. The offence related to carrying explosives was now comprehensively contained in the Explosives Act.

Adv de Lange suggested that 7(a) and (b) would no longer be needed if that offence was covered in the Explosives Act.

Ms S Camerer suggested that the offence created here was a cause of concern. She proposed that the provision include all other similar offences, such as those contained in the Explosives Act.

Dr Jacobs responded that the Bombings Convention was South Africa's first Counter-Terrorism Convention which provided for inter-territorial jurisdiction, and that it had not been provided for in the Bill. It was for this reason that the offence contained in the Convention was now included, as well as the additional jurisdiction. This was contained in Article 2 of the Convention.

Adv de Lange stated that he accepted the reasoning put forward by Dr Jacobs, but suggested that the Clause extended beyond the ambit of the Convention. He proposed that "including" be inserted after "infrastructure facility", just before 7(a).

Clause 8: Offences relating to taking of hostages
Adv Nel said "intentionally" had been added to the first line, as well as "with a view to" and "relating to the taking of hostages" in the last line.

Adv de Lange stated that, as was the case in Clause 7, he was concerned with the inclusion of a reference to "threatens" in the clause, because this was already covered in Clause 14 of the Bill.

Dr Jacobs replied that an express reference to "threatens" had been specifically included here because it was inherent in the offence being created. This clause would then be the exception, and the reference to "threatens" should thus be included.

Adv de Lange asked whether any other offence listed referred to an "entity" as was done in this clause and, if so, why.

Dr Jacobs responded that "entity" was included after the insertion of the definition of that term in the Bill. The Convention more or less contained the definition of the term "entity" that was prevalent at that state, and suggested that that definition could be referred to.

Ms Camerer proposed that "or" be inserted before "threatens".

Adv de Lange suggested that "or abstain from doing any act, threatens to kill, injure or continue to detain the hostage, as an explicit or implicit condition for the release of the hostage" be placed in front of "with the view to compel the State".

Dr Jacobs agreed that the above formulation was similar to the wording in the Convention. He proposed that the wording employed in the Convention be used in the Bill. Adv de Lange agreed.

Clause 9: Offences relating to internationally protected persons
Adv Nel stated that "offences relating to" was inserted in the heading, and "relating to an internationally protected person" was inserted at the end of the clause.

Adv de Lange suggested that "attack" in 9(a) should properly be in the plural, and an "or" should be inserted between 9(a) and (b). The Chair noted that Members agreed.

Clause 10: Offences relating to destroying or endangering the safety of a fixed platform
Adv Nel reported that "destroying or endangering the safety of" had been inserted in the heading. The phrase "which act was likely to endanger the safety of that fixed platform" had been added to 10 (a). He suggested that the same problems raised with Clause 6 would probably also be raised in this clause.

He stated that the words "of that fixed platform" had been inserted in 10(b), so that it would be consistent with the wording of 10(c) and (d).

Adv Swart proposed that the words "or hijack" be inserted here as well, as was done in Clause 6.

Dr Jacobs disagreed with Adv Swart. He stated that it would not be possible to hijack a fixed platform, as it was an immovable structure.

Adv de Lange disagreed - "hijack" referred to the taking over the control of an object.

Ms Camerer questioned the reasoning behind the inclusion of both the destruction and also the damage to the fixed platform in 10(c). There would be no need to refer to the causing of damage to a fixed platform if it was destroyed.

Adv de Lange agreed with Ms Camerer. He proposed that 10(c) refer to the destruction of a fixed platform alone, and a new 10(d) would then create an offence dealing with damage caused to the platform. This reformulation would avoid any possible confusion.

Dr Jacobs agreed and proposed that "which damage was likely to endanger the safety of that fixed platform" be retained in the new 10(d). Adv Nel concurred.

Part 3: Other Offences
Clause 11: Harbouring or concealment of persons committing offences
Adv Nel stated that the former 11(2) had been deleted and relocated to the clause on provision of evidence. The previous draft referred to "this Chapter", and had been replaced with "a specific offence".

Adv de Lange suggested that the heading also included a reference to "specified" offences. He proposed that "or suspected" be inserted after "whom he or she knows".

Clause 12: Duty to report presence of person suspected of intending to commit or having committed an offence and failure to so report
Adv Nel informed Members that "this Act" in 12(1) had been replaced with "this Chapter".

Adv de Lange stated that similar offence had been included in the Prevention of Corruption Bill currently being considered by the Justice Portfolio Committee. He proposed that subclause 1 be split into two portions, the first to deal with the suspicion of the commission or intention to commit the offence, and the second to deal with when a person had knowledge of the location of that suspect.

He stated that 12(3) was added to the corresponding provision in the Prevention of Corruption Bill, which would require the President to deal with this via National Instructions. Clause 12(4) was also added to stipulate that the SAPS had to ensure that these National Instructions were drafted, and the new 12(5) stipulated that these National Instructions also had to be tabled in Parliament.

Ms Camerer suggested that 12(1) be clarified to stipulate that the person must both have had the suspicion, as well as the knowledge, of the location of the person.

Adv de Lange agreed and proposed that the provision be reworded. The problem was that if the person only suspected someone, but did not know that person's location, s/he would not be covered by this provision. The provision should be reworded to clearly separate the reasonable suspicion from the knowledge of the person's location, and a failure to comply with both duties had to be made an offence. Adv Nel agreed.

Clause 13: Offences relating to hoaxes
Adv Nel stated that the 13(3) contained in the previous draft of the Clause had been removed, and relocated to Clause 21(10).

Ms Camerer contended that the wording of 13(1)(a) was rather long-winded. She asked whether it mirrored the wording in any existing Convention.

Adv de Lange replied that it did not follow any convention but thought it read well. He proposed that the phrase "is or contains or was likely to be or contain" be replaced with "contains" in 13(1)(a). He also suggested that "or suspected" be inserted after "have known" in 13(1)(b). He felt the last portion of 13(1)(a) should be rephrased to read "noxious substance or thing", in order to alleviate Ms Camerer's concern, and that the phrase "or other noxious thing" in 13(1)(b) should be deleted.

Clause 14: Threat, attempt, conspiracy and inducing another person to commit offence
Adv Nel informed Members that the words "threat, attempt" had been inserted in the heading of the Clause.

Adv de Lange proposed that the word "Act" in the last line of the clause, be replaced with "Chapter".

Adv Nel agreed because the penalties contained in Clause 15 only referred to those offences in this chapter.

The meeting was adjourned.