Protection of Constitutional Democracy against Terrorist and Related Activities Amendment Bill: public hearings & Department response; with Deputy Minister

Meeting report

Chairperson’s opening remarks

The Chairperson welcomed the Members, as well as the public and stakeholders, who would be making presentations on the Protection of Constitutional Democracy against Terrorist and Related Activities (POCDATARA) Bill. The Committee would like to complete the Bill to avoid the country being grey-listed. This was one of the items the Committee needed to do, and it was one of the many items listed for the state to attend to. She urged that it should not be said that this Committee did not attend to the Bill and that the Committee was responsible for the country being grey-listed. If the country was grey-listed, it would have serious implications for everyone. She did not want this Committee to be part of the problem, but instead to be part of the solution.

IPID report on Lt Col Charl Kinnear’s death

The Chairperson said she had perused the Independent Police Investigative Directorate's (IPID's) report into Col Kinnear's death yesterday. The Committee would peruse the report, and it would remain classified. She had requested a physical meeting on 9 November, and the Committee would deal with the following questions:

• The Committee would need an explanation of why the report was sent to the Committee. The Committee would receive this explanation in terms of what was expected of it.

·The Committee would ask why the report was classified. In the last meeting, the Executive Director of the IPID indicated that the Kinnear report was classified because senior officials were implicated. This was not a sufficient reason for the Committee. The Committee had requested that the IPID Executive Director provide a further explanation, because if any senior official of the South African Police Service (SAPS) or any institution of SAPS was implicated, then they were not exonerated from any form of investigation.

·The President had subjected himself to the full might of the law, and he needed to be respected for allowing himself to be investigated. If the President of the country was being investigated, then the Committee would need an explanation as to why the IPID report was classified, particularly if the real reason was that senior officials had been implicated.

• The Committee was not going to deal with the content of “who and how” -- that was not the business of the Committee. The Committee would not discuss the report in the media. It would remain a classified report, and she would not ask for the report to be declassified.
• The Committee would ask for a progress report on what the Minister, the National Commissioner, the Executive Director of IPID and the Head of the Directorate for Priority Crime Investigation (DPCI) had done about the recommendations in the report. For instance, if the report said that certain individuals had to be subjected to disciplinary hearings or disciplinary action, then they would have to indicate whether they had implemented that disciplinary action -- that was not classified information.

Mr O Terblanche (DA) informed the Chairperson that he had made an appointment to review the Kinnear report on Friday. He was confident that he would be in a position to talk about it in detail when the Committee planned to meet to discuss the report.

The Chairperson replied that the content and detail of the report would not be discussed in the Committee, but she would want the above-mentioned questions answered by the Minister, the National Commissioner, the Executive Director of IPID and the Head of the DPCI.

POCDATARA Bill

The Chairperson asked the Members to start engaging with the POCDATARA Bill. The Members should indicate which clauses they would want amended or not, in writing. If she had not received proposed amendments in writing within a week, she would conclude that the Bill could go through as it was, with the recommendations on amendments made and accepted by the Committee. The Committee had had five meetings on the Bill, which did not mean that the Bill had been rushed through the Committee.

Departmental response to Fish Hoek submission on the POCDATARA Bill

Adv Ulinda Kritzinger, Legislation, Civilian Secretariat for Police Service (CSPS), said that she would summarise the comments submitted and the departmental responses to them.

See attached document for detail.

For the purposes of the presentation, she would refer to the Fish Hoek Valley Ratepayers and Residents Association as the “Commentator”.

Comment 1

The Commentator referred to section 1(a)(vi) and (ff) of the principal Act under the definition of “terrorist activity.” In the written submission, the Commentator gave a few examples of actions that may be seen as terrorist activities in terms of this definition provided in the Bill. For example, the Commentator was of the opinion that municipal Mayors, in terms of their work in relation to sewage treatment or water plants, labour unions in unsupported strike action disrupting essential services, and even the President or Health Minister in declaring a state of disaster during the Covid lockdowns, would be seen as committing terrorist activities that would cause major economic loss to the country.

In response, the Department referred to section 1(3) of the principal Act. The examples mentioned by the Commentator would, therefore, not fall within the ambit of the definition of terrorist activity, because they lacked the intent to cause harm. When one combined the activities and the intent in the examples mentioned by the Commentator, they fells outside the ambit of the Act. Terrorism was an ever-evolving crime and the definitions had to be wide enough to cover future activities.

Comment 2

The Commentator referred to clause 2(b), which seeks the substitution of section 3(1)(c) in the principal Act and insertion of the words “joining, supporting or in any other manner” in the section. The Commentator requested that these words should be defined in the principal Act.

In response, the Department quoted section 3(1)(c) of the principal Act, including the words that were inserted in the principal Act. The concepts of joining and supporting an entity engaging in terrorist activity had been inserted to strengthen the section, and the words must be understood in line with their ordinary meaning. They need not be defined in the legislation.

Comment 3

The Commentator was of the view that the insertion of section 3(3) by clause 2(f), and the inclusion of “other lethal device,” by implication, meant that training in the use of handguns and rifles may also be seen as terrorist activities.

In response, the Department stated that the use of the words “lethal device” should be understood in the context of section 3(2) of the principal Act. Lawful possession of firearms in terms of the Firearms Control Act would not constitute an offence connected with terrorist activities in terms of the POCDATARA Act, unless connected with engagement in a terrorist activity, and it could be proven that the person knew or ought reasonably to have known or suspected that such firearms were so connected.

Comment 4

The Commentator said that Section 5 of the principal Act should not lead to a person acting in self-defence being labelled a terrorist.

In response, the Department indicated that the comments failed to appreciate the fact that the activity must be accompanied by the necessary terrorist intent as defined. No prosecution under Chapter 2 of the Principal Act may be instituted without the written authority of the National Director.

Comment 5

The Commentator was of the opinion that the Bill’s amendment of section 23 concerning "freezing orders" was troublesome, and the conditions under which the High Court could assume control over property must be specified.

In response, the Department stated that the High Court may make an order under section 23 only if the state’s application showed that the conditions described in subsection 23(2) were met. The grounds for making a freezing order were therefore clear. The terms of such an order were also clear and provided for in subsection 23(1). The condition for any further orders that the High Court may make relating to the control of, and care for, property that was subject to the freezing order, was that such orders were strictly limited to what was appropriate for the proper, fair and effective execution of the freezing order. These were spelt out in detail in sub-section 23(4). No further conditions were therefore required to assist the courts in making an order that strikes a balance between the objectives of freezing property that was implicated in the financing of terrorist activities or organisations, and fairness to whoever may have an interest in a property that was subject to a freezing order.

Comment 6

The Commentator said that the insertion of section 24B was problematic, as the demand for a decryption key for detecting any crime fell on the side of discovery and poor investigative work. It was alleged that this insertion may lead to an invasion of privacy.

In response, the Department indicated that section 24B was in the process of being revisited. To effectively enforce the order provided for in section 24B of the Bill, assistance by electronic communications service providers was required. A provision similar to section 21 of the Cybercrimes Act was being considered.

Discussion

The Chairperson clarified that the Fish Hoek Valley Ratepayers and Residents Association had declined an invitation to make an oral presentation on their submission to the Committee. She thanked the CSPS for the clarity provided in the presentation.

Mr Terblanche referred to the departmental response which stated that “terrorism was an ever-evolving crime and the definitions had to be wide enough to cover future activities.” He asked if the presenter could explain this in more detail.

Mr A Seabi (ANC) recalled that when the Committee had done its oversight on illegal mining, the communities had made presentations to the Committee about the activities of illegal mining, particularly on heavily armed illegal miners that threatened the communities. It was said that such activities of illegal mining should be classified as terrorism, because they had the potential to threaten the stability and the economy of the country. He asked whether the definition of terrorist activity would include such activities.

The Chairperson thanked Mr Seabi, the Committee’s Whip, for leading the joint oversight visits with the Portfolio Committee on Mineral Resources and Energy. She said that Mr Seabi had reported the comments on the activities of illegal mining to her. It was a matter of serious concern to the Committee.

Rev K Meshoe (ACDP) noted that the Fish Hoek Valley Ratepayers and Residents Association was of the view that even the President, in declaring a State of Disaster during the Covid lockdowns, would be seen as committing terrorist activities that would cause major economic loss to the country, but that the Departmental response was that the examples mentioned would not fall within the ambit of the definition of terrorist activity, because they lacked the intent to cause harm. He asked how the Department defined the term “harm,” and what kind of harm this referred to.

Mr H Shembeni (EFF) asked whether the heists committed with assault rifles would be regarded under the definition of a terrorist activity. He referred to Mr Seabi’s comment, and noted that some of the zama zama’s (illegal miners) were not from South Africa. He also asked for clarity on whether such illegal mining activities while possessing such firearms would be regarded as terrorist activity.

Ms Z Majozi (IFP) said her question was similar to what Rev Meshoe had asked. She asked whether a terrorist act would be something that intended to cause bodily harm or death of people. She asked what would happen if government was held to ransom, and how it would be defined within the POCDATARA Act. She said some actions might not be regarded as a terrorist activity, but there were scenarios such as the schools that were under threat in Mpumalanga during a protest for the release of illegal miners. She asked for a further explanation on how terrorist activity was defined in the POCDATARA Act.

Rev Meshoe referred to the departmental response, which stated that “terrorism was an ever-evolving crime and the definitions had to be wide enough to cover future activities.” He thought that this might open a can of worms. He asked whether such a sentence would not make the public vulnerable, because it could be used to refer to activities that were not defined as terrorist activity. He asked how the innocence of people would be protected, particularly when it stated that crime was “ever-evolving”. It was said that because crime was evolving, the definitions must also be wide. He explained that the wider the definition, the more confusion there was going to be. If a definition was too wide, then people could interpret it however they wanted.

Response

Adv Kritzinger referred to the comments on terrorism being an “ever-evolving crime” and that the definitions had to be “wide enough to cover future activities.” She said that the idea behind this statement was not to say that each and everything that would happen and that would fall within the current definition of the Act would be regarded as a terrorist activity. She indicated that the Departmental response still implied that there needed to be the necessary intent, and culpability had to be proven for the action to be regarded as a terrorist activity. There was a process where the National Prosecuting Authority (NPA) would evaluate all the circumstances and evidence before deciding to go ahead with prosecution. Even while going ahead with prosecution, the courts could also decide whether there were indeed terrorist activities going on or not.

In response to Ms Majozi’s question, she said that the example mentioned that recently happened in Mpumalanga would not fall within the ambit of the POCDATARA Act, but it could be dealt with in terms of criminal law.

Mr Takalani Ramaru, Acting Secretary for Police Service, requested that other colleagues from National Treasury and the Department of Justice and Correctional Services contribute to the response.

Mr Shaun van Breda, Senior State Law Adviser, Office of the Chief State Law Adviser (OCSLA), said the OCSLA had assisted the Committee with the processing of the Bill, especially with the amendments that the Committee wished to bring to the Bill. It had worked together with the Parliamentary Legal Advisor to draft the A-list and assist the Committee with any constitutional issues that there may be.

Most of the comments that he had noted from the Fish Hoek Valley Ratepayers and Residents Association submission were in respect of the definition of “terrorist activity,” and most of their concerns were in respect of parts of that definition which were already in the principal Act. There may be a misunderstanding or a misconception, because the Bill essentially brought insertions, deletions and amendments to the principal Act. Whatever was underlined in the Bill were insertions, and whatever was in bold and in brackets were deletions.

For example, the Fish Hoek Valley Ratepayers and Residents Association referred to paragraph (c) of the definition of “terrorist activity,” which stated that terrorist activity was any act “which was committed, directly or indirectly, in whole or in part, for the purpose of the advancement of an individual or collective political, religious, ideological or philosophical motive, objective, cause or undertaking.” However, the POCDATARA Bill deletes paragraph (c) of the definition of “terrorist activity.” There were a few concerns regarding the possible violations of rights to freedom of expression and religion, et cetera. The amendments that the Bill brought to the definition were not an overall amendment; these amendments were minor. The Committee should consider that the definition was also subject to paragraph (b) of the definition of “terrorist activity,” which spoke to the intention.

He added that the proposed amendments to the definition of “terrorist activity” were also consistent with the Organisation of African Unity (OAU) Convention on the Prevention and Combating of Terrorism. That particular convention was signed by the Republic, and provided a definition of “terrorist act.” The amendments which were being brought to the definition in the Act were quite consistent with what was being provided by the OAU Convention.

Similar to what the CSPS had highlighted, he emphasised that intention was the key factor. The intention must be proven, which would be reflected in paragraph (b) of the definition for “terrorist activity” in the principal Act.

Mr Pieter Smit, Executive Manager: Legal and Policy, Financial Intelligence Centre (FIC), explained that to understand the very complex definition of “terrorist activity” in the POCDATA Act as it stands currently, one had to rate the definition in two parts. The first part was a long list of activities that could be performed, and most were very serious criminal activities in and of themselves. The second part was to consider whether those activities arose to the level where they could be characterised as terrorist activity. Then those activities must be performed with the specific intention as spelt out in paragraph (b) of the definition of “terrorist activity.” This specifically referred to the intention to destabilise the state or to threaten the state into taking a certain action or withholding actions, et cetera. Therefore, unless both conditions were met, an activity would not arise as a terrorist activity, even though it might be a very serious criminal activity. Both conditions need to be met for something to be considered a terrorist activity.

In some cases, this attenuated the scope of the definition. In other words, it limited the scope of the definition to things that would otherwise be considered very harmful activities, such as the disruptive actions in the examples mentioned of illegal mining, et cetera. However, in other instances, it may also mean that it distinguished something that could be either very innocent behaviour, such as firearm training, or which could arise to terrorist activity if it was done with the intent of training armed members of a terrorist organisation. One could not say with certainty, in black and white, that a particular activity was always a terrorist activity, because it depended on whether it was connected to paragraph (b) of the definition.

He added that paragraph (b) of the definition of “terrorist activity” was part of the case that the state must prove beyond reasonable doubt in a prosecution, if the state wanted to charge a person or an organisation with terrorism or involvement in a terrorist activity. It was not something that could just be assumed -- the onus was on the state to prove it. For that reason, the National Director of Public Prosecutions must exercise discretion to determine whether the state has the factual information that could bring evidence to prove the second condition of the definition.

Further discussion

Rev Meshoe said that his question on how the Department had defined the term “harm” had not been answered. He questioned whether the intent to cause harm within the definition of “terrorist activity,” referred to physical, emotional or economic harm.

He said that the public would obviously not always be kind when people faced a charge of terrorism, particularly if a person was charged with terrorism and would have to prove in court that the intention was not to cause harm. He questioned whether this posed a danger to innocent people charged with terrorism, especially if their integrity was undermined or negatively affected for being accused of being involved in terrorism.

Mr Seabi said he had asked about the heavily armed illegal miners that threatened and killed South African citizens. He was unsure of how the intention would be proved, but he noted that this sort of activity threatened the security of the country, because the police could not effectively deal with them. Most of the illegal miners were foreigners that threatened the security and economy of the country, killed citizens of the country, and were heavily armed. He recalled that on the oversight visit on illegal mining, the communities had requested the deployment of the South African Defence Force (SADF), because the police were not trained to deal with such issues, but the SADF did not negotiate and were trained to deal with such issues. Having sketched this scenario, he asked whether it qualified to be defined as a terrorist activity.

The Chairperson noted that what Mr Seabi had said was critical. Before she allowed further questions, she asked Mr Shaun van Breda, Senior State Law Adviser, to respond to Mr Seabi’s question.

Mr Van Breda replied that it would not be appropriate to respond to whether that particular incident would qualify as a terrorist activity -- that would be for the SAPS and the National Prosecuting Authority (NPA) to decide. However, any action that would qualify as a terrorist activity, in terms of the POCDATARA Act, would need to comply with paragraphs (a) and (b) of the definition for “terrorist activity.” It specifically would need to comply with paragraph (b), which would qualify the intention to commit the terrorist act.

The Chairperson asked Ms Nicolette van Zyl-Gous, Committee Content Advisor, to ensure that the Committee received an urgent written response to Mr Seabi’s question before it moved forward with the amendments.

Mr Shembeni said that his question had not been properly answered. He had asked the question about the heists and the high calibre of firearms used, because he was of the view that sometimes heists may be committed with the aim of financially sponsoring certain organisations in or outside of South Africa. He asked for clarity on whether such heists committed by certain organisations fell under the definition of terrorist activity.

He said that the initial definition of terrorism in South Africa was focused on certain organisations under a certain government, but now the definition considers other activities as terrorism. He doubted whether the definition of “terrorist activity” was providing for the right thing. He questioned whether the definition was running away from the original definition of terrorism.

Response

Mr Ramaru said that Mr Shembeni’s question was similar to the question which Mr Van Breda had responded to, as it would be for the SAPS and the NPA to decide if such activity would be regarded under the definition of terrorist activity.

The Chairperson said that the Committee would soon go through the Bill clause-by-clause. By that time, the questions and the concerns that the Members had raised would need to be responded to. The delay and lack of responses would not be accepted. The Committee would like the responses so that it could finalise the Bill.

Mr Cassel Mathale, Deputy Minister of Police, told the Chairperson that he would follow up and ensure that the Committee received its responses.

Submission by DearSA on POCDATARA Bill

Mr Rob Hutchinson, Managing Director, DearSA, said that dearSA was a public participation organisation that promotes and encourages public participation. It held no opinions, was unbiased in what it did, and presented the voice of the public.

DearSA had run a public participation campaign for the POCDATARA Bill. A total of 25 652 comments had been received by the closing date of 18 October. Dear SA carried out extensive reporting and data analysis to assist government and the Committee in making accurate decisions based on the sentiments of the public and other organisations.

The campaign data indicated that 0.37% of the participants supported the POCDATARA Bill, 95.82% did not support it, and 3.8% did not fully support the Bill.

The presentation highlighted the main reasons for supporting or not supporting the POCDATARA Bill.

• “Yes, I do support the Bill”

Of the “Yes, I do” comments, the participants who submitted valid comments were mostly in full support of the Bill, with the majority expressing concerns over the possible grey-listing of South Africa by the Financial Action Task Force. Some participants were concerned over the growing threat of terrorism, both domestically and abroad, with concerns over the transparency of non-profit organisations.

• “Not fully support the Bill”

Of the “Not Fully” comments, the participants in this category expressed concerns over encroachment on constitutional rights due to the vague and unclear definitions of terrorist and terrorist activities. Many expressed a need for the amendment to curb extremist action, damage to state resources or infrastructure, corrupt activities, and politically-motivated agendas that promote violence and destruction. However, a strong concern remained regarding the loose and vague definitions within the Bill which were open to interpretation and abuse.

Concerns were also raised over the ability to enforce laws, and mentions were made of existing laws and legislation that were more than adequate and proven effective.

• “No, I do not support the Bill”

Of the “No, I do not” comments, the vast majority of participants were concerned over the erosion of the Constitution of South Africa and, most notably, the Bill of Rights. Emphasis had been made on the threat to freedom of expression, freedom of association, freedom of religion, and the country's democracy due to unclear and vague definitions of terrorism and terrorist activities. Concerns were raised over the amendments being abused to stifle criticism of the government or its policies and proposals, which was essential to a functional democracy. Further concern ranged from silencing political opponents to misinterpreting the definitions by authorities, including comments about moving backwards to apartheid-era laws and legislation.

See presentation attached for detail.

Discussion

Ms Majozi raised concern about the vagueness of the POCDATARA Act itself, particularly regarding what actions would be regarded as terrorist activity. She said that perhaps the SAPS should have been invited to the Committee to describe what activities would generally be regarded as terrorist activities. She questioned what would happen if government was held to ransom, and whether the POCDATARA Act stipulated what would happen in such a scenario. She suggested that the relevant stakeholders should be invited to provide clarity on these concerns. If this was not acted upon, she foresaw dangers. She said that the POCDATARA Act should not remain as vague as it currently is.

The Chairperson said that the Committee had had five sessions on the POCDATARA Bill, and this was its sixth session. The Committee would call upon all the relevant stakeholders again. She urged that the Members engage with the Bill and submit their proposed amendments in writing by Wednesday next week.

Mr Terblanche thanked Mr Hutchinson for the very informative presentation -- the comments seemed to be so comprehensive. He asked whether the CSPS had considered the comprehensive input from the huge number of public participants. He wanted to ensure that the inputs were considered in the processing of this Bill.

Mr Shembeni said that he was still concerned about the definition of “terrorist activity,” particularly considering the original definition of terrorism in comparison to how it was defined post-1994. He did not find the definition satisfactory, because, as far as he remembered, South Africa’s late President Mandela was still regarded as a terrorist in the United States, and he was not sure whether this had been cancelled.

The Chairperson commented that she had not received any proposed amendments from the Members. She reminded them to submit their amendments within a week.

Dr P Groenewald (FF+) said that the core of the issue was around the definition of “terrorist activity.” He noted that the public comments expressed in the dearSA presentation did not have proposals for a new wording of the definition, although there were objections. He asked whether dearSA had a proposed definition that would satisfy it.

Mr A Whitfield (DA) thanked Mr Hutchinson for the excellent presentation. He observed that the Bill was in its public participation phase. All of the engagements would assist the Committee and the research that the Members did to make inputs. The Committee was yet to go through the Bill clause-by-clause. He assured the Chairperson that she would receive inputs and suggestions on the POCDATARA Bill.

The Chairperson said that DearSA represented a very broad community and constituency, and thanked the organisation for collecting all of the information and assisting the Committee with public participation. The work that DearSA did was well respected and well received. The presentation was commendable. The Committee would not have achieved such broad participation if DearSA did not do this kind of work. The Committee now had a broad view and spectrum of the different stakeholders. She thanked Mr Hutchinson for reaching out and requesting that the Committee extend its deadline for public participation.

Response by DearSA

Mr Hutchinson said that it was an honour to receive such praise for the work that DearSA does. The intention was to help the government to be a better government.

In response to Dr Groenewald, he replied that DearSA would honour the request and provide a definition as an alternative to the existing definitions.

He thanked all of the Members for allowing dDearSA to represent the voice of the public.

Deputy Minister's concluding remarks

Deputy Minister Mathale said that the existing POCDATARA Act was in line with the Constitution of South Africa, so the Amendment Bill did not infringe on the Constitution and would not have a negative impact on democracy. The amendments were intended to be in line with what was currently prevailing internationally, because South Africa was part of international protocols that required the country to amend legislation as and when the need arose, and with the evolution of technology and how people carried themselves in terms of engaging in criminal or terrorist activities. South Africa would always be guided by the supreme law of the land, which was its Constitution.

He commended the approach of the Committee, which had given the public ample opportunity to engage with the Bill, because law-making was a public process. The public comments were taken seriously. He appreciated dearSA and the attitude of the organisation.

He was pleased that there was general support for the Bill. The Members had demonstrated their support of the legislation, which was encouraging to the Ministry. He appreciated the work of the Committee and its staff, as well as the work that the CSPS continued to do.

Chairperson’s closing remarks

The Chairperson asked the Deputy Minister to convey the Committee’s appreciation to the Minister. She also wanted to express the Committee’s appreciation to the Deputy Minister, in particular, as he had always been there and assisted the Committee in its work.

She said that the public participation stage would end, and the Committee would then adopt its public participation report. Thus far, based on the public participation and the comments of the Members, there has been consideration to amend the definitions. For instance, there was a public submission to request that the term “entity” be clarified, and that the definition for “property” should be amended to include “crypto assets.” The third recommendation was for the necessary amendments to sections 3 and 4, to provide for online training to be included -- and not only the receipt of training, but providing training. It was also indicated that section 24A would be revisited to specifically deal with decryption assistance and passwords or other access technology restrictions on electronic communications devices.

She added that there appeared to be a common understanding that the definition of “terrorist activity” had to be amended.

She thanked the presenters and all of the stakeholders that had engaged in the meeting. She was very pleased with the work done thus far.

Adoption of minutes

The Committee considered and adopted its minutes of 19 October.

The meeting was adjourned.