Protection of Constitutional Democracy against Terrorist and Related Activities Amendment Bill: Department response to submissions

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14 September 2022
Chairperson: Ms T Joemat-Pettersson (ANC)
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Meeting Summary


In this virtual meeting, the Portfolio Committee on Police was briefed by the Civilian Secretariat for Police Service (CSPS) on the departmental responses to the public submissions on the Bill. The presentation concentrated on the provisions in the Bill that have been challenged through the public submissions made by AfriForum, the International Committee of the Red Cross (ICRC), the Sussex Terrorism and Extremism Research Network (STERN) and the Banking Association of South Africa (BASA).

Although the Department had justified its disagreement with a number of comments in the public submissions, the Department also agreed with a few comments that the Committee should consider for inclusion in the Bill. For example, the STERN had suggested the inclusion of an offence being committed not only for receiving terrorist-related training but also for providing that training.

A Member asked the CSPS to provide the Committee with a brief recapitulation of the Constitutional Court judgements that impacted some of the amendments to the Bill. The Member also noted that the timeline for the Committee to conclude the Bill appeared to be extremely urgent, and asked the National Treasury whether this legislation was a fundamental component of the effort to prevent South Africa from being grey listed, in other words, if it would increase the risk of South Africa being grey-listed if this legislation was not passed through Parliament in the quarter, and only dealt with next year.

A legal advisor from the ICRC indicated that the ICRC would submit a counterproposal to the departmental response on its submission. As such, the Committee agreed that it would start with the deliberations on the Bill after the CSPS had responded to the additional submission from the ICRC.

Meeting report

Chairperson’s Opening Remarks
The Chairperson said that the meeting was for the Committee to consider the responses by the Civilian Secretariat for Police Service (CSPS) on the public submissions received in the draft Protection of Constitutional Democracy against Terrorist and Related Activities Amendment Bill [B15-2022].

The Department has consulted various stakeholders on the comments that were received during the public participation process and sent detailed responses on each comment made by the Banking Association of South Africa (BASA), AfriForum, the International Committee of the Red Cross (ICRC) and the Sussex Terrorism and Extremism Research Network (STERN).

The Department has indicated that the Committee should consider various comments for inclusion in the Bill; such as the inclusion of an offence being committed not only for receiving terrorist-related training but also for providing terrorist-related training, as was suggested by STERN. This illustrates the importance of public participation on legislation before Parliament and undoubtedly strengthens the legislative process to allow the Committee to improve its work. Public participation and involvement in the legislative process is central to Parliament's mandate and a constitutional requirement.

The Committee had raised concerns about the public participation process and requested that additional time should be allowed for public submissions. Despite the extension for public submissions to be submitted on the Bill, the Committee has not received any additional submissions; as such, the Committee will adopt its report on the public hearings during the following scheduled meetings.

The Committee welcomed AfriForum, STERN and the ICRC representatives, who have availed themselves for further engagements, should the need arise.

She noted the apologies from the Minister, Deputy Minister, General Godfrey Lebeya (National Head of the Directorate for Priority Crime Investigations (the DPCI)) and Dr P Groenewald (FF+).

Committee Matters
The Chairperson referred to the meeting of 14 August 2022. She said that the Committee had a long session of inputs towards the end of the meeting.

The Committee decided that it should have a strategic session, which would be physical.

The minutes of 24 August 2022 do not capture the Members' inputs, so she had requested that an addendum be made to those minutes; this would impact the minutes of 31 August and 07 September 2022 in terms of what has been adopted. The three sets of minutes will not be considered in this meeting because the meeting of 24 August had serious recommendations that the Chairperson and the Members made. Those recommendations would form the basis of the strategic session. The Committee had also agreed that the decisions in the prior strategic session had to be captured. Those important decisions have not been noted in the minutes of 24 August; on 31 August, the Chairperson had requested that it be included but it had still not been included. It should be noted that the Committee cannot yet adopt the three sets of minutes because the corrections were not made. The corrections could be made as an addendum to the minutes and should be adopted in the next meeting.

She had been requested to postpone the meeting scheduled for Friday, as Members will be travelling for their oversight visit. The meeting scheduled for Friday would not have a quorum, therefore the decision has been made for the meeting to be postponed.

She hoped the responses by the CSPS would be useful to the meeting and the stakeholders. The Committee would like to engage with the stakeholders in a very comprehensive way. The Committee would like the stakeholders to be present when it deliberates. The inputs from stakeholders have been extremely valuable. It has been considered and given to the CSPS; the CSPS would then respond to those inputs.

CSPS Presentation: Departmental responses to public submissions on the Bill
Adv Ulinda Kritzinger, Legislation, CSPS, said that the draft Protection of Constitutional Democracy against Terrorist and Related Activities Amendment Bill, 2022, was introduced to the Committee on 31 August 2022.

Public hearings on the Bill were held on 7 September 2022. Presentations were made by AfriForum, the ICRC, the STERN and a written submission was received from the BASA.

The Department and other role-players worked through the written submissions received from the public comments and prepared a very detailed response document.

The presentation for this meeting is a summary and will only concentrate on the provisions in the Bill that have been challenged through the public submissions.

Submissions from AfriForum:
Clause 1: Definition of “property”. AfriForum had indicated that this section was already overbroad and vague and the expansion thereof has exacerbated the problem.

In response, the Department said that the definition had been aligned with the definitions of the same concept in the Prevention of Organised Crime Act (POC Act) and the Financial Intelligence Centre Act (FIC Act), as these Acts have to be implemented in conjunction with each other to address illicit financial flows related to terrorism.

Clause 1: Definition of “terrorist activity”. AfriForum had indicated that the addition of 1(b)(iv): “can reasonably be regarded as being intended, in whole or in part, directly or indirectly, to... further the objectives of an entity engaged in terrorist activity”, further complicates an already notoriously contested definition. “Reasonably be regarded” unacceptably introduces negligence as a form of mens rea for committing terrorist offences. This is legally imprecise for purposes of criminal law and it is a common issue with anti-terrorism legislation globally.

In response, the Department said that the wording of “reasonably be regarded” has been part of the principal Act since its adoption in 2004 and refers to an act that is intended or can be reasonably regarded as intended. It has not been introduced in the Bill only now. It is granted that there is no globally accepted definition of terrorism, but the South African Law Reform Commission (SALRC) has recommended the definition of terrorism activity, as opposed to a definition of terrorism; the Department has followed this advice and also used a model that is relevant, for example of Canada.

Clause 3: Insertion of Section 3A, which provides for the prohibition of any publications with terrorist-related content. AfriForum has challenged this insertion of Section 3A, as it is said that such an insertion violates among other rights to freedom of expression, the state has not adequately explained such invasive measures, and it is not believed that Section 3A will really address obstacles such as capacity, training and lack of resources.

In response, the Department said that the media and, in particular, electronic media platforms are extensively being used to recruit persons to join terrorist organisations or to commit terrorist acts, and it is therefore necessary to address it in the Bill. Any prosecution in terms of these provisions may only be instituted with the written authorisation of the National Director of Public Prosecutions. Section 3A is based on the provision in Chapter 11 of the United Kingdom Terrorism Act, 2006. Any person charged with committing an offence under this section, may raise a defence in terms of Section 3A(5); defences may include that the person did not know that the document contained information related to terrorism; that the person’s possession was for purposes of carrying out work as a journalist, or academic research.

Clause 5: Insertion of Section 4A, to provide for an offence in respect of an attempt to leave the republic for the benefit of, at the direction of, or in association with, a terrorist group. AfriForum commented that this is an unjustifiable violation of freedom of movement and unnecessary duplication of a pre-existing offence.

In response, the Department said that the purpose of the insertion is to provide legal clarity that South African law criminalises situations where persons abuse freedom of movement and utilise South African territory as a springboard to join foreign terrorist organisations.

Clause 17: Amendments of Section 18 relating to Penalties. AfriForum commented that the amendment proposes severe increases in sentences for offences thereunder.

In response, the Department said that this amendment relating to the penalties for terrorist financing offences is necessary to establish parity with equally serious offences of the POC Act, such as the offence of money laundering.

Clause 18: Insertion of Section 23(2)(a). AfriForum stated that the wording “reasonably be regarded” introduces a form of negligence as sufficient intention of knowledge of wrongdoing for purposes of criminal liability, and is likely to lead to complex litigation.

In response, the Department said that the term used in the amendment is “reasonable grounds to believe” and not “reasonably regarded” as stated in AfriForum’s submission. “Reasonable grounds to believe” within the context of this section does not relate to criminal liability, and therefore does not establish intention of knowledge of wrongdoing. Instead, it sets an evidentiary standard that the state must meet to obtain a freezing order.

The evidentiary standard is applied by a judge when the National Director of Public Prosecutions brings an application for a freezing order. A police official does not exercise the power. A judge applies this standard to determine whether the state has proved the jurisdictional facts required to grant the freezing order. This evidentiary standard is much lower than the standard for criminal prosecution, which is “beyond reasonable doubt”. The term “reasonable grounds to believe” is often used in legislation in respect of a discretion exercised by a judicial officer; for example, when a magistrate decides whether a search warrant should be issued in terms of section 21 of the Criminal Procedure Act, 1977.

Clause 20: Insertion of Section 24A. AfriForum stated that this insertion could lead to the potential for abuse, as with RICA legislation, and the potential to unjustifiably violate the right to privacy.

In response, the Department said that Section 24A is only to be applied once the state has, in terms of the law, seized computer equipment where there is already a suspicion that a crime had been committed. It is necessary to obtain a decryption order. Such a decryption order can only be obtained through a designated judge in terms of RICA. It is appreciated that the effectiveness of the section is limited, but it is not always the dark web used in the recruitment of terrorists. Furthermore, if South Africa does not provide for this, it may lead to abuse from South Africa through internet service providers to recruit terrorists. Section 24A will be revisited to specifically deal with decryption assistance and passwords or other access technology restrictions on electronic communication devices, as with the United Kingdom laws (UK Terrorism Act, 2006).

Clause 20: Insertion of Section 24B. AfriForum stated that the proposed Section 24B would likely prove unenforceable, given that most of the content on the internet is hosted and/or disseminated by massive supranational companies such as Meta, who act as secondary publishers, or alternatively not hosted on traceable servers at all – such as on the so-called “dark web”. The principles of the audi alteram partem doctrine and the right to be presumed innocent without any concomitant justification, are being violated.

In response, the Department said that to effectively enforce the order provided for in Section 24B of the Bill, assistance by electronic communications service providers is required. A provision similar to Section 21 of the Cybercrimes Act needs to be made, therefore the Bill will be revisited in this regard.

Clause 21: Deletion of Section 26. AfriForum stated that the deletion is an unjustifiable violation of separation of powers. Section 26A of the Financial Intelligence Centre Act (FIC Act) does not provide tabling of announcement/designation in Parliament.
In response, the Department said that the submission of designations by the United Nations Security Council (UNSC) is, at most, for information purposes of Parliament, and Parliament cannot reject or amend resolutions of listings of the UNSC. Implementation of designations following the adoption of Resolutions by the UNSC is an executive function. The General Law (Anti-Money Laundering and Combating Terrorism) Amendment Bill, provides in effect that all notices that relate to the adoption of Resolutions of the UNSC and subsequent designations will be issued by the director of the Financial Intelligence Centre (FIC).

Submissions from the ICRC:
The ICRC proposed the retention of Section 1(4) of the principal Act, also referred to as the International Humanitarian Law (IHL) savings clause. It also proposed the addition of a “humanitarian exemption clause”. States should ensure that counter-terrorism legislation does not jeopardise humanitarian action. A humanitarian exemption clause will protect impartial humanitarian action carried out by trusted humanitarian and impartial organisations.

In response, the Department said that the repeal of Section 1(4) must be understood in the context of South Africa’s obligations under international law. The Bill must be aligned to the Geneva Conventions Act, 2012, and Protocol I and II relating to the Protections of Victims of International Armed Conflicts and Non-International Armed Conflicts, respectively.

Protocol I additional to the Geneva Convention applies to the type of armed conflicts mentioned in Section 1(4) of the principal Act. The ICRC may offer its services in an armed conflict, or during a legitimate liberation struggle, or during an international or non-international armed conflict, and is exempted from punishment for carrying out of medical activities compatible with medical ethics, regardless the persons benefitting from the assistance. Should the ICRC be exempted through the Act, it affects the consideration of the particular circumstances when the ICRC offers its assistance. Protocol II explicitly requires the consent of the state when it comes to relief actions. Providing a standing exclusion for humanitarian organisations would neglect this “consent” requirement. Therefore, the Department does not support the inclusion of an exemption clause as proposed by the ICRC.

Submissions from the STERN:
The STERN stated that Clause 2 that seeks to amend Section 3 of the Act, and more specifically, the insertion of Section 3(4) where a person commits an offence if he or she receives training and is aware that such training is connected with terrorism, should be further improved to ensure that “terrorist” training itself is an offence. In its current form, it can be interpreted that only training for a specific act is criminalised, and places the burden on prosecutors to prove that specific terrorist activity was planned. The STERN also noted that terrorist training could occur online or through social media, and the proposal is made that online training be addressed.

In response, the Department accepts the comments and the necessary amendments to Section 3 and Section 3(4) will be affected, to provide that online training also be included, and not only the receipt of training but also the vision of training of terrorist activities.

Submission from the BASA:
Clause 1: Definition of “property”. The BASA commented that the definition of “property” in the form prior to its proposed amendments, is already an all-encompassing definition and would include any digital representation of perceived value, which would include crypto assets, fiat currency and securities. The BASA recommends the deletion of the insertion that has been made into the definition of “property” or alternatively cross reference the definition of crypto-asset as proposed in Schedule 1 of the FIC Act, currently under consideration by Parliament.

In response, the Department said that crypto assets are neither money, moveable or immovable property or a corporeal thing. It is therefore important to create legal certainty that crypto assets are included in the concept of property in the principal Act. The Department proposed that it remain with the word “crypto assets” in the definition of “property”, but that under the definition section of the principal Act, it will insert a definition of “crypto assets” that will be in line with other legislation as well.

Clause 1(e): Definition of “electronic communications service provider”. The BASA requested clarification on whether Section 1(e) is limited to “independent” service providers that operate such service as a “sole” service, or is it also applicable where the service is offered in collaboration with a primary service provider. The BASA also requested clarity on what is meant by “who is deemed to be licensed”.

In response, the Department said that the definition applies to a person who provides an electronic communications service in terms of an individual licence, as a class licence, a licence exemption and in terms of any other law that deems such a person to be licenced to provide an electronic communications service.

The expression “deemed to be licenced” refers to an electronic communications service provider contemplated in the ECA or a person who is deemed to be licenced in terms of any other law to provide an electronic communications service. Whether the definition of electronic communications service provider extends to a so-called “mobile virtual network operator” will be determined whether such a person is licenced, exempted from being licenced or deemed to be licenced.

Clause 1: Definition of “entity”. The BASA suggested that it must be clear that an “entity” that has been removed from a Resolution of the UNSC and announced as such by the Minister of Finance in a notice and subsequent notice by the Director of the FIC will not be considered as an “entity” any longer.

BASA noted that in accordance with the Bill, the UNSC Resolutions, which include financial sanctions, must be published by the Minister of Finance in terms of section 26A of the FIC Act, not having any discretion to publish or not. In light of this, the purpose of section 26A(3)(a)-(b) is questioned, as any such notice contemplated in these sections may only be done pursuant to a notice as gazetted under section 26A(1). The intention here would, for example, never be to amend the initial UNSC Resolution.

In response, the Department said that the application of the provisions of the FIC Act relating to targeted financial sanctions to an entity, is determined by details of the notices that the Director of the FIC issues and includes a notice by the Director that a designation by the UNSC no longer applies to an entity, in other words, has been de-listed as an entity by the UNSC.

It has been noted that there is a conflict between Clause 25 of the General Laws Amendment Bill, which seeks to delete the fact that the Minister of Finance will announce the adoption of Resolutions by the UNSC in the Gazette. It now provides that the Director of the FIC will publish such notice in the Gazette, with the Bill where there are still references to notices under section 26(A)(1) of the FIC. The relevant clauses in the Bill will be amended to align the two pieces of legislation.

Clause 3: Insertion of Section 3A(2)(d). The BASA commented that this would prove difficult for electronic communication service providers, as the offence lies in “enables them to obtain...”, whereas such a provider may only provide the access mechanism but has no control over what content is accessed through its service. It is proposed that the section be deleted or amended, or if none of the proposals are accepted, that the defences mentioned in clause 3A(5) be amended to also apply to Section 3A(2)(d).

In response, the Department said that the comments are accepted, but there is no necessity to amend the defence clause 3A(5), as the defences applicable in the clause finds application to the entire section 3A, and therefore include Section 3A(2)(d).

Clause 12: Insertion of Section 12(9). The BASA commented that the creation of the obligation to comply with this section, notwithstanding the obligation to comply with other legislation, creates a hierarchy of unsubstantiated legal obligations.

In response, the Department disagrees that adding Section 12(9) creates a hierarchy of reporting obligations. The proposed Section 12(9) is derived from a similar provision in section 37(1) of the FIC ACT, 2001. There is no reason why the reporting duty and the exclusion of privilege in the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004, should differ from that in the FIC Act, 2001.

The Chairperson said that she experienced loadshedding and asked Mr A Seabi (ANC), the Committee’s Whip, to assist her with the meeting. She said that the presentation was quite a comprehensive response. It was detailed and quite complex. She asked that the Members raise their clarity-seeking questions.

Mr A Whitfield (DA) agreed that the Bill was incredibly complex and technical, as it pulled all sorts of pieces of legislation together, as well as international standards and conventions.

He said that, across the board, it generally seemed as if there was support for the intention of the legislation or the amendments, to give effect to the developments in international law. However, there were a number of comments that the Department does not agree with, as the Department is entitled to. He noted that Parliament had passed legislation in the past, even with departmental concurrence, that has been found wanting in different departments.

This Committee must apply their minds very carefully to the public comments as well as the departmental comments.

He said that the second intention of the Bill is to give effect to certain Constitutional Court judgements; he asked if the Committee could get a recap on which judgements those were, with a brief explanation.

He referred to the Department’s response to the insertion of Clause 3A, where the Department said that the media, particularly electronic media platforms, are extensively being used to recruit persons to join terrorist organisations or commit terrorist acts. He said that it does not appear that this statement is qualified by any reference to a case study example or any sort of evidence. He accepted that electronic media is a convenient platform to recruit and to perhaps commit terrorist activities, but he asked if the Department could provide the Committee with some examples that have led to this conclusion, as justification for the insertion of the new Clause 3A.

Response by CSPS
Adv Kritzinger said that there had not been many convictions in terms of the principal Act, in respect of terrorism-related activities, but the examples that were mentioned when the Department introduced the Bill were of the Thulsie twin brothers; two members of the National Christian Resistance Movement who were plotting the murder of black people, as well as overthrowing the government; and the Constitutional Court matter of Henry Okah, a citizen of Nigeria that was charged with 13 counts related to terrorism.

The trial of Henry Okah led to an unsuccessful constitutional challenge in fact of the jurisdictional provisions in the Act, but the Constitutional Court then advised that the definition of “specified offence” should be re-looked to make it more understandable. The Constitutional Court matter of Henry Okah definitely impacted the Bill, where there were amendments made to the definition of “specified offence” to make it clearer, per the guidance the Constitutional Court gave.

Further discussion with stakeholders
Mr Whitfield said that South Africans are quite right to be concerned when any legislation comes before Parliament that gives the state increased powers, there is reason for scepticism. South Africans have seen the powers of the state abused during the Covid-19 lockdown and have seen what the police are capable of in the current environment. The reports of the Independent Police Investigative Directorate (IPID) had shown how police abuse spiked during the lockdown when the state was given unprecedented powers over the freedoms of citizens. It is therefore not unreasonable for South Africans to be concerned about some of the amendments that may lead to arbitrary abuse.

In terms of the number of comments that were made regarding the vagueness or looseness of definitions contained in the Amendment Bill, he asked if it was the CSPS’s position that none of those arguments hold any water, and that the CSPS are satisfied with all of the definitions in the Amendment Bill, that it is beyond reproach, even by the Constitutional Court.

Adv Kritzinger responded to Mr Whitfield’s question. She referred to the public submissions that were considered from AfriForum and the BASA, where comments were made on the definition of “property”; the Department responded that it would take note of those comments, but are still of the opinion that crypto assets should be made part of the definition of “property”; the Department will re-look at the definition to strengthen it and make it more easily interpretable. The Department will remain with the word “crypto assets” in the definition of “property”, but will insert a new definition into the Bill that specifically defines “crypto assets”.

Adv Shaun van Brenda, Senior State Law Advisor, said that it would be more appropriate for the Department to respond to issues of vagueness in respect of the definitions, but he agrees with Adv Kritzinger who had just responded.

In respect of the processing of Bills, the role of the State Law Advisors is to generally assist the Committee in respect of constitutional issues, as well as amendments that the Committee wishes to bring to the Bill. This will be in the form of the a-list where the State Law Advisors work closely with the Parliamentary Legal Advisor.

The Chairperson noted that the Members did not have any further questions. She asked the stakeholders who made public submissions to comment.

Dr Albertus Schoeman, a member of the World Bank’s Governance Global Practice, posed a question to the CSPS; he had two further points in his submission that were not addressed in their presentation.

The one point was about broadening the definition of “legitimate defence” in Section 3A; he had suggested that “legitimate defence” be extended from academic research and journalism to say something along the lines of “legitimate activities in the public interest, such as academic research and journalism”.

The second point was around his suggestion of removing “terrorist motive” in the definition of “terrorist activity”: he understood that the CSPS had looked at the Canadian law for this, but he emphasised that South Africa has slightly different challenges. Therefore the deliberations need to consider the local challenges in the country, in terms of hybrid groups that engage in organised crime alongside activities to induce terror. He referred to the example of narco-terrorism, which does not have an ideological motive. He asked if the CSPS could respond to the two points in his submission.

Adv Kritzinger responded to Dr Schoeman’s submission regarding removing the motive requirement from the definition of “terrorist activity”. She reminded everyone that the presentation only responded to the provisions in the Bill that have been challenged through the public submissions. The particular submission that Dr Schoeman had referred to, was raised in the initial comments when the Bill was published for public submissions during last year; at that time, the Department then took that comment into account and the definition of “terrorist activity” was then amended to delete the motive requirement, so, that had been addressed previously.

Adv Sarel Robbertse, State Law Advisor, Legislative Development, Department of Justice and Constitutional Development, responded to Dr Schoeman’s submission regarding broadening the definition of “legitimate defence” in Section 3A. He said that in South African law, unlawfulness is a prerequisite for criminal liability. In effect, the state must prove that there is no legitimate defence against the conduct criminalised in a legislative provision; although, the defences provided in Section 3A list specific offences. Other defences or recognised grounds in which unlawfulness may be excluded, will always be applicable in addition to what is specifically stated as a defence against the criminalisation of certain conduct. Although the Bill mentions specific defences, it does not exclude other grounds of justifications that may be raised concerning prohibited conduct.

Mr Vukile Davidson, National Treasury, said that National Treasury supports the work that the Committee is doing and the contents of the Bill. National Treasury appreciates the Committee’s consideration of the Bill in line with the parallel work in the Standing Committee of Finance, to address the deficiencies identified in the mutual evaluation and to avoid South Africa from being grey-listed. The National Treasury will continue working with the Department to clarify and align the smaller technical issues, such as those relating to the crypto assets.

The Chairperson asked Mr Whitfield if the responses had answered his questions.

Mr Whitfield said that his original question was related to the complex and technical nature of the Bill, and that the timeline for the Committee to conclude the Bill appeared to be extremely urgent; the question was for the Committee to understand this urgency. He asked if the National Treasury could indicate whether this legislation is a fundamental component of the effort to prevent South Africa from being grey-listed. He asked if it would pose a problem or increase the risk of South Africa being grey-listed if this legislation was not passed through Parliament this quarter, and only dealt with next year. He said he would really appreciate an answer to this question, as the answer would drive a sense of urgency behind the Committee’s work.

Mr Davidson replied that he would ask his colleague from the Financial Intelligence Centre (FIC) to assist in the response. In short, he said that, yes, the aspects being dealt with in the Bill are critical in addressing what is called “technical compliance deficiencies”. The shortcomings that were identified in the mutual evaluation fall under two aspects; one aspect is something that is called “technical compliance”, and this requires the updating of legislation and regulation to ensure that there is a legal framework to address the deficiencies identified; the other aspect is something that is called “effectiveness”, the effectiveness pillar is more of a subjective measure that measures how effective the system is in addressing risks related to money laundering and countering the financing of terrorism. What is now being dealt with in Parliament, through the amendments being facilitated to the Standing Committee on Finance, is the amendments of five pieces of legislation as well as the parts that are being considered in this Committee, all of those represent technical compliance deficiencies that need to be addressed.

In response to Mr Whitfield's comment on the timing of concluding the Bill, he replied that it is absolutely imperative that the technical compliance aspects are approved in Parliament and signed into law, because the Financial Action Task Force (FATF) will only consider it once it is signed into law, which impacts the timing perspective.

Mr Pieter Smit, Executive Manager, FIC, said that Mr Davidson had summed up the response very well.

There are specific amendments in the Amendment Bill that are directly linked to the findings from the mutual evaluation report. These relate specifically to the amendments in Section 4 relating to the terrorist financing offences and Section 23 and Section 25 that deal with the freezing orders and the implementation of financial sanctions from the UNSC—these are also impacted by the definition of “terrorist activity” which has been proposed to be amended in this Bill. All of the above form a package of the amendments that are fundamental to addressing some of the findings in the mutual evaluation report, where the legal framework to deal with terrorist financing was found to fall short of what the international standards require.

The FATF will consider the efforts to address the findings of the mutual evaluation report for this Bill, together with the General Laws Amendment Bill, in January 2023. The written material will have to be submitted to the FATF in November 2022. The FATF will analyse the material and there will be a meeting with the review team in January 2023 to discuss the assessment that the FIC has been busy with for the past few months. The FATF will consider drafts and say whether the draft is going in the right direction, but it would not acknowledge it as an action to address a finding in an evaluation until that legislation is enforced. This is where the time pressure comes from to deliver the legislation that could address the findings and bring that legislation into operation with enough time left for the FATF to analyse the new legislation and advise whether they believe the shortcomings were addressed that were identified in the report.

The review process in itself takes time, because the reviewers that are looking at the legislation are not necessarily experts in South African law and may not understand the context of the principles of the law (such as the common law principles of unlawfulness), so there will be a requirement for the FIC to engage with those reviewers' over time and explain the impact of the provisions.

The FIC believe that the findings of the mutual evaluation report are justified, which is why the amendments have been brought into legislation and proposed to Parliament through this process of the Bill. The FIC is also working very closely with the CSPS on the technical detail of those particular amendments that relate to the findings of the FATF.

[The Chairperson lost internet connectivity.]

Mr Whitfield said that he presumed that the FIC worked closely with the CSPS on the financial, technical elements of the Bill. He asked whether every single amendment was necessary to satisfy the requirements for South Africa to avoid being grey listed. He was curious to know whether every single amendment was critically fundamental to that purpose or whether the Committee should separate some amendments from the necessary technical amendments to align the Amendment Bill to international standards and to satisfy the concerns flagged in that grey-listing process.

Mr Smit replied that not every single amendment that is proposed in this Bill relates to the findings of the FATF in the mutual evaluation. That is not to say that those amendments are not all equally important and urgent. He recalled that the CSPS had indicated that some of the amendments relate to the findings of other international organisations, for example, the Counter-Terrorism Committee Executive Directorate (CTED) of the UNSC, which has also undertaken a compliance visit to South Africa and have made a separate set of findings concerning the anti-terrorism legislation.

The focus of the CTED is wider than just terrorist financing, as it looks more broadly at the concept of terrorism, extremism and so on. He reiterated that the FIC’s engagement with the CSPS has been to address some of the findings that relate to the FATF process and the reason there is some urgency is that the FATF in itself is different from other bodies. It has a follow-up mechanism to monitor how countries follow up and when the countries follow up. The FATF apply peer pressure to countries through this grey-listing process to follow up on findings that come out of mutual evaluation reports; this is slightly different to how other bodies carry out assessments, but that does not necessarily mean that the amendments that are necessary to address those findings are not equally important. The efforts also ensure that the counter-terrorism legal framework—including terrorist financing—is robust enough to ensure that South Africa is not a haven for terrorist activity or a support for terrorist organisations. This comes from some of the findings from the Constitutional Court judgements.

Ms B Marekwa (ANC) noted the questions and responses regarding the urgency to prevent South Africa from being grey listed. She believed that part of the efforts to avoid being grey listed would mean that the matters under discussion should not be rushed. She said that the Committee should do its work to the best of its ability and ensure that the finalisation of the Amendment Bill will not be referred back to the Committee. The inputs should address the issues affecting South Africa, because the challenges in South Africa might differ from those in other countries.

Mr A Seabi (ANC) agreed that the Committee need to do its work diligently. He noted that the Members had no further questions.

Ms Paola Forgione, Legal Advisor, ICRC, said that she had heard the response regarding the ICRC submissions, but she had some counterproposals and asked if she could address them.

Mr Seabi replied that Ms Forgione should send the counterproposals to the Committee Secretariat, because the procedure is that the Members should have a typed submission well in advance. He asked the Committee Secretariat if any other items were on the meeting agenda.

Ms Babalwa Mbengo, Committee Secretariat, replied that the next item on the agenda was for the Committee to start the deliberations on the Bill.

Mr Seabi asked the Members for their opinion on the deliberations on the Bill.

Mr Whitfield said it would be important for the Chairperson or the Committee Whip to set out the expectations of the format that the Committee would follow when deliberating on the Bill. He noted that the ICRC had already indicated that they would like to make an alternative proposal or variation in their submission to the CSPS. If the Committee is to deliberate on the Bill and all the submissions, then it should have the most current information available. He would not want to unnecessarily delay this process, but he would also not want the Committee to start from scratch if the ICRC submission is of such a nature that it would require the Committee to review its deliberations.

Mr Seabi asked if Mr Whitfield agreed that the Committee should give the stakeholders another opportunity to make further submissions, before the Committee continued deliberations on the Bill.

Mr Whitfield said he would be happy to proceed with the deliberations if the Committee Whip felt comfortable. He was concerned that not all Members have participated in the discussion and whether that meant that the Members had sufficiently appraised themselves of the submissions and responses. Perhaps it would be good for the Committee to receive the additional submission from the ICRC via the CSPS, as this would also give the Members more time to consider everything that was discussed, as well as the submissions that were sent in the last week.

Mr H Shembeni (EFF) agreed with Mr Whitfield’s comments regarding the deliberations on the Bill.

Ms Nicolette van Zyl-Gous, Committee Content Advisor, said that the additional submission would go to the CSPS and be responded to in next week's meeting. She agreed it would be wise for the Committee to start the clause-by-clause deliberations next week.

Mr Seabi noted that the Members had agreed to start the clause-by-clause deliberation next week, after the Committee had received the response on the additional submission.

Mr Takalani Ramaru, Acting Secretary for Police Service, said that once the CSPS had received the additional submission from the ICRC, then the CSPS will work on the additional submission and respond accordingly.

The meeting was adjourned.

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