Protection of Constitutional Democracy Against Terrorist & Related Activities: Consideration of NCOP Amendments

Meeting report

SAFETY AND SECURITY PORTFOLIO COMMITTEE; JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE: JOINT MEETING
25 February 2003
PROTECTION OF CONSTITUTIONAL DEMOCRACY AGAINST TERRORIST AND RELATED ACTIVITIES: CONSIDERATION OF NCOP AMENDMENTS

Chairperson: Mr M George (ANC) and Adv J de Lange (ANC)

Documents handed out:
Protection of Constitutional Democracy Against Terrorist and Related Activities Bill [B 12B-2003]
Submission on NCOP Proposed Amendments to Protection of Constitutional Democracy Against Terrorist and Related Activities Bill
NCOP Proposed Amendments to Protection of Constitutional Democracy Against Terrorist and Related Activities Bill

SUMMARY
Together with the Portfolio Committee on Justice and Constitutional Development, the Committee considered the amendments proposed by the Select Committee on Security and Constitutional Development to the Protection of Constitutional Democracy Against Terrorist and Related Activities Bill. and effected some technical amendments to the Bill.

MINUTES
Mr George (Co-Chair) gave a brief background to the Bill and thereafter handed over to Dr P Jacobs (South African Police Service Legal Advisor) to take the Committees through the amendments proposed by the Select Committee on Security and Constitutional Development to this Bill.

Dr Jacobs went through the amendments proposed by the Select Committee on Security and Constitutional Development.

Mr George (Co-Chair) noted that the Chairpersons of the Portfolio Committees on Safety and Security and Justice and Constitutional Development and that of the Select Committee on Security and Constitutional Development had met on 24 February 2004 to consider the proposed NCOP amendments. He asked the Chair of the Portfolio Committee on Justice and Constitutional Development Chair to brief the members on the outcome of that meeting.

Adv de Lange (Co-Chair) noted that the Chairs felt that when the Bill speaks about 'insurrection' that does not refer to general insurrection in other countries as 1(1)(xxiv)(a)(viii) seems to assume but only within the Republic. Therefore they are of the view that the words "in the Republic" should be inserted after the word "insurrection".

Further that when the Bill speaks about the territorial integrity of the State being threatened in 1(1)(xxiv)(b)(i), it only refers to the territorial integrity of South Africa and not of other countries as such could be problematic. Therefore the proposal is that the words "the Republic" be inserted to substitute the words "a State".

He noted that the reference in 1(3) to "(a)(i) to (vi)" is a technical error and it should be substituted by "(a)(i) to (v)". He noted that there were also other technical amendments that were identified and effected by the Chairs.

He said that while he normally agrees with Adv Donen's views on international law however this time he begs to differ with his opinion on 1(4).

If one looks at Cosatu submission, which members should take time to read through properly, then one would realise that there is nothing in their submission which is persuasive enough to move the Committees to effect any amendment other than what they have already done in the Bill. While Cosatu raises many issues, most of these issues are in the form of questions and it is not for Parliament to answer them as the Courts would have to ultimately give an interpretation to these. Parliament has created a test of which its parameters would crystallise during judiciary interpretation and practice.

The other serious issues raised by Cosatu which the NCOP also did not accept is with regard to the state of mind. As Parliament, they decided that it should be intentionally and therefore whenever someone acted intentionally, one would fall under this Bill; however where one acted negligently, then one would be excluded.

However the suggestions by Cosatu that this should only apply in cases of direct intention as opposed to indirect intention cannot be accepted. This is the case notwithstanding the number of cases quoted by them given during the existence of the previous regime. No serious government would ever suggest that terrorism be limited only to the highest form of intention (dolus directus). Thus the other forms of intentions such as eventuality and foreseebility should also be the test.

The Chair noted that an exception has been created in 1(3) of the Bill to exclude actions which are usually associated with dissent, protest and industrial actions from the scope of the Bill since on a wider interpretation they could be viewed as part of terrorism. However this exception only applied in cases were a dissent, protest or industrial action occurred within the parameters of the law and is done without the use of violent acts. Therefore the proposal that the word "lawful" be removed would not be accepted since its effect would be that all those who are involved in industrial action, whether lawful or unlawful or involving violence, would automatically be protected. This cannot be accepted despite the fact that this is done in Canada as this is not Canada but South Africa.


He said that the Chairpersons did not have a problem with the deletion of the words "physical integrity and physical freedom" in 1(1)(xxiv)(a)(iii) in so far as those words are used in relation to endangerment.

Ms Camerer pointed out that the word "physical integrity" is also contained in the Constitution and she thus felt that the Committees should retain this word and only remove "physical freedom" as the latter cannot be endangered but violated while the former can be endangered.

Mr P Swart (DA) proposed the following instead "endangers life or violates physical integrity or physical freedom of, or causes serious bodily injury to or the death of, any person, or any number or group of persons".

The Committee unanimously agreed with the proposals.

Mr George (Co-Chair) read the report of the Committees and the Bill was unanimously adopted with amendments. He thereafter thanked his co-chair for the work he has put in ensuring that this Bill becomes a success noting that it was a complicated piece of a legislation. He thereafter thanked the members of both Committees for the job well done and also wished them all the best in the forthcoming elections.

Adv de Lange (Co-Chair) also thanked the Chair of the Portfolio Committee on Safety and Security and members of both Committees for the job well done in this five year period and thereafter wished them all the best in their future endeavours. He also extended the words of thank to the Department of Justice and Constitutional Development, the media and the Committee Section. On behalf of the Committee he congratulated Mr S Jonas (Co-Committee Clerk) on his promotion.

Mr Jeffery on behalf of other members thanked the Chair of the Portfolio Committee on Justice and Constitutional Development for his wonderful chairpersonship.

The meeting was adjourned.