Protection of Constitutional Democracy against Terrorist and Related Activities Amendment Bill: further deliberations; Public Participation Report; with Deputy Minister

Meeting report

POCDATARA Bill

Public participation report

The Chairperson flighted the report on the public hearings held on the Protection of Constitutional Democracy against Terrorist and Related Activities (POCDATARA) Amendment Bill [B15-2022] for noting by the Committee. The Democratic Alliance, Economic Freedom Fighters, and African Christian Democratic Party reserved their rights on the adoption of the report.

Definition of "terrorist activity"

Dr Phillip Jacobs, Director: Legislation, Civilian Secretariat for Police Services (CSPS),) briefed the Committee on the historical background and purpose of the Bill and the need for the proposed amendments.

He explained that the definition of “terrorist activity” was really the crux of the Act. The whole approach towards the definition from scratch had been to isolate actual terrorism from other crimes to effectively combat terrorist activities. The particular offences were established in terms of existing international instruments, but also to be proactive enough to provide a general definition which was wide enough to combat terrorism, but not too wide to allow abuse of the legislation for purposes other than combating terrorism.

The definition required “an act” which would be considered to be an act which by nature was violent, aimed at endangering the life or bodily integrity of persons, large scale damage to infrastructure and to essential infrastructure -- those services, facilities and infrastructure which were essential to society -- including emergency, police, medical or civil defence services.

In addition to such an act, a particular intention was required. The required intention, which must be proven by the state, would relate to a threat to the unity and territorial integrity of the Republic; to intimidate, or to induce or cause feelings of insecurity within the public, or a segment of the public, with regard to its security, including its economic security; or to induce, cause or spread feelings of terror, fear or panic in the civilian population.

The present definition in the Act required a motive, which was for the advancement of an individual or collective political, religious, ideological or philosophical motive, objective, cause or undertaking.

It would not be wise to narrow down the definition of “terrorist activity” in the Act. When the present Act was drafted and considered, Parliament had paid deserved attention to this crucial definition.

There had been intensive public interest, participation and involvement in the initial drafting of the Bill, as well as the thorough processes of the South African Law Commission. Parliament, through the consideration of the Bill by two Portfolio Committees -- Safety and Security and Justice and Constitutional Development -- had further contributed to the thoroughness of the process.

The definition of "terrorist activity", in particular, had not been constitutionally challenged. However, in Canada, the insertion of intention in a similar definition had been challenged and found to be unconstitutional. He therefore recommended that that requirement for motive be deleted from the Bill.

See attached

Mr Cassel Mathale, Deputy Minister of Police, said that Dr Phillips's definition adequately reflected the views of the Police Department.

Refinement of definitions

Adv Ulinda Kritzinger, Legislation, CSPS, took the Committee through the clauses which had been refined. She said that following the public hearings, she had worked with the Department of Police and incorporated the public comments and the proposals by Members of the Portfolio Committee during their deliberations. She presented the proposed changes to the bill to the Committee, based on the comments received and the Committee's discussions.

The Democratic Alliance, Economic Freedom Fighters, Freedom Front Plus and African Christian Democratic Party reserved their rights on all the clauses. The ANC supported the proposals.

It was agreed that the A-list would be considered at the next meeting and the final bill would be presented for adoption at the meeting thereafter.

The meeting was adjourned.