Protection of Constitutional Democracy Against Terrorist & Related Activities Bill; Prevention & Combating of Corruption Activit

Meeting report

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
29 January, 2004
PROTECTION OF CONSTITUTIONAL DEMOCRACY AGAINST TERRORIST AND RELATED ACTIVITIES BILL (ANTI-TERRORISM BILL); PREVENTION AND COMBATING OF CORRUPTION ACTIVITIES BILL (ANTI-CORRUPTION BILL): BRIEFING

Chairperson: Mr Ngoshi Mokoena (ANC)

Documents handed out
Department of Safety and Security Presentation on Anti-terrorism Bill
Prevention and Combating of Corrupt Activities Bill [B19B-2002]
Protection of Constitutional Democracy Against Terrorist and Related Activities Bill [B12B-2003]
Clause 1(4) of Protection of Constitutional Democracy Against Terrorist and Related Activities Bill
Cape Bar Council Memorandum
South African Police Services submission

SUMMARY
In the briefing on the 'Anti-terrorism' Bill, the Committee heard that there was a requirement in the respective international instruments to create specific offences, such as hijacking and bombing. There was also the necessity to create adequate legislative framework to suppress terrorist financing and to comply with Resolution 1373/2001 of the UN Security Council. The legislation was necessary in order to be not only willing but also able to comply with international instruments, extradition and extended jurisdiction. The review of terrorist legislation was also required by the OAU Convention.

The Committee was told that rather than amending the Corruption Act of 1992 piece-meal, the 'Anti-corruption' Bill aims at giving effect to recommendations emanating from a total review of the current legislation. This will contribute to Government's initiatives in developing an overall anti-corruption strategy. The provisions contained in the Bill follow the trend of modern international legislation, namely the "unbundling" of corruption, in terms of which various specific actions and corrupt practices are defined and prohibited. Following modern international trends, the Bill envisages the incorporation and development of a number of different provisions regarding various types of corrupt practices.

MINUTES
Protection of Constitutional Democracy Against Terrorist and Related Activities Bill
Dr. Phillip Jacobs, Assistant Commissioner: South African Police Service (SAPS), made the presentation on behalf of the Department of Safety and Security. He informed the Committee that the Bill had been processed by the Safety and Security Portfolio Committee conferring with the following committees:
- Justice and Constitutional Development Portfolio Committee
- Joint Standing Committee of Intelligence
- Foreign Affairs Portfolio Committee
- Finance Portfolio Committee

The drafting was coordinated by the Legal Services section of the SAPS and officials of the National Prosecuting Authority, SA Law Reform Commission and the Financial Intelligence Centre formed part of the drafting team. The Portfolio Committee for Safety and Security allowed ample time for comments and extensive public hearings on the Bill. The Bill was extensively amended by the Portfolio Committee and hence reflects consensus on a highly sensitive topic.

Dr. Jacobs explained the necessity for the legislation. The requirement in the respective international instruments to create specific offences, such as hijacking and bombing. There is also the necessity to create adequate legislative framework to suppress terrorist financing and to comply with Resolution 1373/2001 of the Security Council. Legislation is necessary in order to be not only willing but also able, in all respects to comply with international instruments, extradition and extended jurisdiction. The review of terrorist legislation is requirement by the OAU Convention. The offence of terrorism in section 54 of the Internal Security Act is too narrow and only provides for terrorism against South African Government contrary to global trends on international terrorism which can be aimed against any government. Again specific offences which must be created in terms of international conventions is not provided for in the local legislation which also affects extradition.

Discussion
Ms Kgaoli (ANC) queried why the Department is fond of making reference to the 11 September incident in the USA when no such reference is made to other terrorist activities that occurred elsewhere in Africa and even locally.

Dr. Jacobs acknowledged the fact that indeed local terrorist activities need to be given prominence in the Bill. He however explained that the Law Commission wanted to look at best practice internationally hence the numerous references to terrorist acts elsewhere. At the core of the Bill, however, is the country's own interests.

Ms Kgaoli asked if apart from supporting the spirit of the Bill the African Union and the Non-Aligned Movement (NAM) has done anything concrete to actualize the implementation of the Bill.

Dr Jacobs noted that in fact the AU has a clear framework on how to address the vexed problem of international terrorism and that it makes provision for its operation and implementation.

Ms Kgaoli cautioned that unless an armed struggle activity for self-determination is sufficiently defined it is a recipe for trouble.

Mr Lever (DA) agreed with Ms Kgaoli and made the point that the definition in the Act had a subjective bias at root which creates a situation where any person could justify certain terrorist acts as a legitimate armed struggle. He added that it was unsatisfactory to leave it to the wisdom of judges to determine what constitutes a terrorist act.

Dr Jacobs pointed out that the act of self determination did indeed carry different elements but that the yardstick was that such a struggle must be in accordance with International Humanitarian Law.

Mr Nyakane (UDM) referred to Section 25 and queried the necessity for parliamentary scrutiny when indeed South Africa is represented at the UN Security Council.

Dr Jacobs agreed that Chapter 7 of the Security Council is binding on Member States but that the idea for presidential notification was mooted by the Portfolio Committee, which felt that Parliament should be in a position to make an in-put in this regard.

Mr Lever insisted that it is unwise to leave it open to individual judges to determine which act of self-determination is a legitimate armed struggle.

Dr Jacobs replied that judges would be guided by principles of international law while adjudicating on such matters.

Mr Nyakane wondered how a South African court would be able to adjudicate on matters happening beyond the borders of the country where it lacks jurisdiction.

Dr Jacobs explained that the act of terrorism bestows extra-territorial jurisdiction on an affected country. It is the same with the International Criminal Court, which has extra-territorial jurisdiction. The obligation is either to prosecute or to extradite the suspects.

Ms Lubidla (ANC) wanted to know what becomes of a person who commits a terrorist act before the passage of the Bill.

Adv. Gerhard Nel (Department of Justice) replied that Clause 7(2)(3) and (4) cover previous terrorist acts before the commencement date. In other words the Act would not operate retrospectively.

Mr Mkhaliphi wanted to know whether the practice of finger printing at international airports was within the spirit of the Convention.

Dr Jacobs explained that it is internationally accepted that persons at a country's point of exit have a reduced level of right to privacy.

Prevention and Combating of Corruption Activities Bill (Anti-Corruption Bill): briefing
Adv. Gerhard Nel, Department of Justice and Constitutional Development, informed the Committee that since the enactment in 1992 of legislation dealing with corruption, various proposals have been received relating to the amendment of this legislation. For example, it had been suggested that the common law crime of bribery be re-instated and further that the crime of corruption should be broadened to cover all agents, public or private. It had also been suggested that the legislation should apply extra-territorially in order to cover any gifts given or received outside the country's borders. Again, it had been suggested that "anti-corruption legislation" should create a crime when public officials are used or manipulated to commit irregularities.

Adv Nel made the point that rather than amending the Corruption Act, 1992 (Act No. 94 of 1992), on a piece-meal basis, the Bill aims at giving effect to recommendations emanating from a total review of the current legislation. This would contribute to Government's initiatives in developing an overall anti-corruption strategy. The provisions contained in the Bill follow the trend of modern international legislation, namely the "unbundling" of corruption, in terms of which various specific actions and corrupt practices are defined and prohibited. Following modern international trends, the Bill envisages the incorporation and development of a number of different provisions regarding various types of corrupt practices.

Discussion
Ms Kgoali wanted to know if the private sector has been included in the fight against corruption.

Adv. Nel referred to Clause 2(3) and confirmed that indeed the private sector is specifically included in this dispensation.

Ms Kgaoli noted that Members of Parliament have been included yet there are those who hold public office while others do not. She wondered whether members would be penalised twice - that is under the parliamentary rules and the new Bill.

Adv Nel clarified that there is a principle in criminal jurisprudence that no person should be penalised twice on the same set of facts and circumstances. The Portfolio Committee had also raised this issue and that the same is currently under investigation by the Department.

Mr Lever noted that Clause 25 and 26 are further divided into various parts yet the Bill does not spell out the relevant part they refer to.

Adv Nel agreed and undertook to effect the relevant amendment with a view to supplying clarity to the two sections

Mr Lever cautioned that innocent members of the public would be the losers where directors of a public company engage in corrupt activities and thereby cause it to be penalised.

Adv Nel opined that in the case of shareholders and trustees of a company that is under investigation it would be necessary to take into account the circumstances of the offence at the sentencing stage. It is impracticable under the law to make a distinction between individuals and legal persons in terms of crime and punishment.

Mr Lever referred to Clause 23 and wondered why this provision is necessary when the same item is covered under the Asset Forfeiture legislation.

Adv Nel disagreed. He clarified that the provision on Asset Forfeiture is contained in the Prevention of Organized Crime Act and this clause is significantly different from Clause 23 of the Bill.

Mr Lever noted that Clause 23 enumerates the rights of the National Prosecuting Authority only whilst ignoring the rights of the affected persons. Also the definition of the term 'gratification' is not clear-cut.

Adv Nel said he would leave the question on the definition of the term 'gratification' to the Committee.

Mr Nyakane wanted to know whether the definition of 'corruption' takes into account African cultural values such as obligation to extended families.

Adv Nel noted that issues to do with cultural values are mitigating factors that should be dealt with at the sentencing stage. It is not possible to explain away or excuse corruption on the basis of cultural values.

Mr Mkhaliphi noted that definitions have been provided for at Clause 27 contrary to the accepted practice where such matters appear at the beginning of the Bill.

Adv Nel explained that the definition at Clause 27 only applies to that particular clause. This was a general practice and that therefore it is not a departure from the accepted drafting norms.

The Chair wondered how one would be able to prove matters of presumption at Clause 24 and in particular corrupt deals that happen during public auctions.

Adv Nel acknowledged the bare fact that indeed prosecuting authorities would always be faced with the difficulty of proving most of these cases. It is however an effort worthwhile since some cases might sustain a successful prosecution.

The Chair thanked the presenters and informed members that deliberations on the Bill would commence in earnest next week.

The meeting was adjourned.