Protection of Constitutional Democracy Against Terrorist and Related Activities Amendment Bill: public hearings; with Deputy Minister
NCOP Security and Justice
07 December 2022
Chairperson: Ms S Shaikh (ANC, Limpopo)
The Committee met virtually to consider submissions on the Protection of Constitutional Democracy Against Terrorist and Related Activities Amendment Bill (POCDATARA) by FORSA, the Cape Independence Party and the Sussex Terrorism and Extremism Research Network (Stern). The Civilian Secretariat for Police Service (the Department) provided their responses to the submission and the Committee engaged on the issues raised.
The issue of the short time for public comment was raised at the beginning of the meeting - comments were allowed from 30 November to 6 December 2022.
FORSA raised concern with the wide definition of “terrorist activity” which contains numerous broad and undefined phrases.
The Department responded that the definition seeks to explain that there needs to be a link between the activity that can cause harm and the intention to achieve the objectives. If activities lack the necessary terrorist intent which is usually aimed at terrorising the civil population or government, it cannot be considered as terrorism under the Act. The Department said the examples mentioned by FORSA that the actions of civil society organisations that facilitate public awareness of legislative processes would therefore not fall within the ambit of the definition of terrorist activity, because it lacks the intent to cause harm.
Members asked for more examples of the vagueness in the definition of terrorist activity and whether protests could fall under the definition of terrorism. There was concern that government departments labelled civil society enabling comments on legislation as instigating sabotage.
The Cape Independence Party, while fully appreciating the danger of being greylisted by the FATF, was of the view that Members, who were all democratically elected leaders, were responsible for upholding the rule of law and should not rush this Bill in order to subordinate to some external forces. In its submission, the party felt the amendments in their current form leave the door open for misinterpretation of the Act in such a way that individuals or organisations that protect or promote the right to self-determination in South Africa could be classified as terrorists. They objected to the removal of Chapter 1. Subsection 4, which defines and protects the constitutional right to self-determination from being incorrectly interpreted as terrorism. The Select Committee was requested to reconsider the proposed amendments, to ensure that the right to self-determination remains in the Act, that any ambiguity is removed which may threaten South African democracy, free speech, the right to report and share information freely, protest the government, and oppose its policies.
The Department responded that gor an act to be regarded as a “terrorist activity” there has to be a link between the act that can cause harm and the intention to achieve the objectives. Any organisation that pursues the collective right to self-determination peacefully, would under no circumstances perpetrate any of the actions described in paragraph (a) of the definition and would therefore never be in the position where it could potentially be considered to be involved in terrorist activity.
Members asked for examples of the right to self-determination threatening the rights under Chapter Two of the Constitution.
Stern was concerned by the removal of a clause dealing with the “Prohibition of publication with unlawful terrorism related content” - the organisation believed this was a mistake and would undermine South Africa’s security. The Select Committee is asked that this clause prohibiting the publication of unlawful terrorist content should be returned to the Bill.
The Department’s response was that during the public participation process, when the Bill served before the Portfolio Committee on Police (PCoP), the Department carefully considered all submissions that cautioned about the constitutionality of the clause and possible infringement on the right of freedom of expression and agreed to propose to the PCoP the deletion of the clause. It is the Department’s considered opinion that prosecutions of publications with terrorist-related content, can be prosecuted under section 14 of the principal Act.
Members asked about the Saharawi people in Morocco and the case of Israel oppressing Palestinians, both of which could be considered cases of terrorism.
The participants were thanked for giving Members a clear sense of the concerns raised in the Bill. Further submissions would be heard tomorrow. Thereafter the Committee would consider the Department’s responses and further deliberate on the Bill later in the week
The Chairperson greeted Members in attendance and acknowledged the presence of the Deputy Minister of Police, Mr Cassel Mathale. She indicated that the meeting may begin.
Deputy Minister Mathale indicated that Minister Bheki Cele had offered his apology as he could not be on the platform.
The Chairperson informed Committee Members that the Select Committee was convened to conduct public hearings on the Protection of Constitutional Democracy Against Terrorist and Related Activities Amendment Bill (POCDATARA). She informed Members that the B version of the Bill had been published from 30 November to 6 December for public comment. In addition, the Committee had also reached out to organisations and civil society for public comments.
Mr G Michalakis (DA, Free State) expressed discomfort with the set deadline. He was aware of the procedure that the amendments to this Bill would still have to be sent to the National Assembly for further deliberation. At this stage, he was not 100 percent satisfied with the Bill and emphasised that the Committee needed to consider public comments more carefully - this whole process cannot be treated like a “farce”. He asked the Department to give an indication that there is sufficient time for Members to make amendments and for those amendments to be given proper consideration.
The Chairperson agreed with his suggestion and indicated the Committee also needed time to consider and deliberate on the Bill.
Mr M Dangor (ANC, Gauteng) emphasised the urgent timeline for finalising the Bill to avoid South Africa being grey-listed from some foreign powers.
The Chairperson was of the view that the Select Committee needed to make it clear to civil society and the public that it had considered and applied its minds to all the public inputs thoroughly.
Deputy Minister Mathale reaffirmed the Department’s position on the importance of public input. He indicated that the Department was present to clarify any unclear areas – this showed the Department’s dedication to the engagements with Members. Also, he assured members of the public that all inputs from them would be thoroughly considered and would not be treated as a mere rubber stamp process.
Submission by FORSA
Ms Daniela Ellerbeck, Legal Advisor, FORSA, took the Committee through its submission. The organisation raised concern with the wide definition of “terrorist activity” which contains numerous broad and undefined phrases. They recommended the definition of “terrorist activity” be narrowed by excluding “viii) creates a serious public emergency situation or a general insurrection in the Republic” or, the criteria to be met for a “serious public emergency situation” and “general insurrection” be expressly stipulated in the Bill.
See attached for full submission
The Chairperson laid out the sequence of interactions. She would first allow the Department to engage with the presenter before Members could interact with the presenter.
Concerning FORSA’s submission, Adv Ulinda Kritzinger, Civilian Secretariat for Police Service (CSPS), took the Committee through the Department’s response.
The Department responded that the definition of “terrorist activity” rests on two legs: a) Any activity that can cause harm and b) Achievement of any of the intended objectives with that activity.
The definition seeks to explain that there needs to be a link between the activity that can cause harm and the intention to achieve the objectives. If activities lack the necessary terrorist intent, usually aimed at terrorising the civil population or government, they cannot be considered terrorism under the Act. If one element is missing, the crime is not established. The circumstances and evidence of each particular case will have to be looked at, to arrive at a conclusion. Prosecution under POCDATARA is only possible with the written authority of the National Director of Public Prosecutions.
The examples mentioned by FORSA that the actions of civil society organisations that facilitate public awareness of legislative processes will therefore not fall within the ambit of the definition of terrorist activity, because it lacks the intent to cause harm.
The comments regarding acts that create serious public emergency situations or a general insurrection in the Republic are noted, but yet again, these acts will have to be tested against the definition of “terrorist activity” before any prosecution can be instituted.
There is no intention to criminalise voices of those opposing government processes. The Department concurs that freedom of religion, expression and association are rights that are protected in terms of the Constitution of the Republic of South Africa, but are not without limitation in terms of section 36 of the Constitution. Any limitation of these rights must be justified and comply with all the requirements in section 36.
The Committee’s attention is also drawn to the fact that this particular part in the definition was not a subject matter in the Amendment Bill. It has been part of the definition since the adoption of the principal Act in 2004. The only amendment made to this part was the omission of a comma and insertion of the word “or” in line with technical legislative drafting.
See attached for full response
Mr T Dodovu (ANC, North West) asked Ms Ellerbeck to provide more examples of the vagueness in the definition of terrorist activity. He understood that the narrower definition would suppress the freedom of speech and expression.
Mr Dangor asked whether a protest, such as COSATU showing solidarity with the Eswatini people in terms of increasing the wages for public sector workers, would fall under the definition of terrorism under the proposed amendments.
The Chairperson noted FORSA’s remark from the Department of Health (DoH), which labelled civil society enabling public comments on the Department’s proposed health regulations as instigating terrorism or sabotage. She described the statement as unfortunate judging by its face value but she needed to know more about the context in which the DoH had made such a statement.
Ms Ellerbeck replied to Mr Dodovu that the examples he asked for were in bolded phrases in the presentation. She pointed out that terms such as public emergency, general insurrection etc., were unclear and vague terms which needed to be defined in more concrete criteria.
Ms Ellerbeck replied to the Chairperson’s question, pointing her to the hyperlinked footnote in the submission. The link would take Members to the news article relating to the DoH’s statement.
Deputy Minister Mathale declined to comment on the remark made by the DoH. He cautioned some members of the public against resorting to attacking all government proposals because one government official failed to explain certain things in a satisfactory manner. He described such tactics as unfortunate. He also assured the Committee of his Department’s commitment and position that anything which infringes on the Constitution could not be allowed.
Adv Kritzinger responded to Mr Dangor that it was difficult to respond clearly on the COSATU example. Any act committed in such a manner can be tested against the definition of terrorist activities. She indicated that terrorist activities are violent by nature and aim to endanger the lives of persons, damage infrastructure, sabotage, etc. But that particular intention of the activity needed to be proven by the state to assess whether the act could be deemed a threat to the unity of the Republic.
Cape Independence Party submission
Mr Jack Miller, Founder of the Cape Independence Party, took the Select Committee through his submission.
Mr Miller appreciated the fact that other parties and Members of the Select Committee also shared some of the concerns that came from the Cape Independence Party.
Mr Miller noted Mr Michalakis’s remark on 30 November that he was becoming increasingly uncomfortable with how the Select Committee had been pressured to rush through this legislation. Mr Michalakis also indicated the lack of sufficient time for Members to properly apply their minds to the Bill and felt that the NCOP had been treated badly. Later in the meeting, it was suggested the Chairperson escalate the issue to the Chairperson of the NCOP because it is the NCOP’s constitutional mandate to ensure decent legislation is passed. The Chairperson had also indicated in that meeting that those issues had been raised by other Members on a personal level. She too had raised this matter to the Chief Whip, the House Chairperson and perhaps the Chairperson of the NCOP.
Although the Cape Independence Party fully appreciated the danger of being greylisted by the FATF, it was of the view that Members, who were all democratically elected leaders, were responsible for upholding the rule of law. They should not rush this Bill to subordinate to some external forces.
Mr Miller appreciated Ms Ellerbeck, from FORSA, Mr Dodovu and Deputy Minister Mathale for their view that there cannot be vague terms in law and that ordinary persons in the streets must understand the Bill.
Mr Miller read out his party’s submission to the Select Committee, which was a joint submission with other parties and organisations. They felt the amendments in their current form leave the door open for misinterpretation of the Act in such a way that individuals or organisations that protect or promote the right to self-determination in South Africa could be classified as terrorists. Over 25 000 South African citizens and organisations have lodged objections to many of the proposed amendments to the Act. They did not believe that these objections were not appropriately addressed, and that the Bill in its current form is unconstitutional.
The main objection in the submission was the removal of Chapter 1. Subsection 4, which defines and protects the constitutional right to self-determination from being incorrectly interpreted as terrorism. The Select Committee was requested to reconsider the proposed amendments to ensure that the right to self-determination remains in the Act, that any ambiguity is removed which may threaten South African democracy, free speech, the right to report and share information freely, protest the government, and oppose its policies.
See attached for full submission
The Chairperson thanked the speaker and asked the Department to provide its response concerning the submission.
Adv Kritzinger provided the Department’s responses to the Cape Independence Party. Section 235 of the Constitution recognises the collective right of the South African people to self-determination. Communities have rights to pursue self-determination in line with the collective right. Whilst the Bill of Rights protects basic human rights such as the right to life, freedom and security of the person, it does not protect the right to self-determination. It follows that the right to self-determination cannot be protected at the cost of human rights. For an act to be regarded as a “terrorist activity” there has to be a link between the act that can cause harm and the intention to achieve the objectives. Any organisation that pursues the collective right to self-determination peacefully, would under no circumstances perpetrate any of the actions described in paragraph (a) of the definition and would therefore never be in the position where it could potentially be considered to be involved in terrorist activity.
It should be noted that the activities described in paragraph (a) of the definition would in itself be regarded as very serious criminal offences, and, if pursued in the exercise of the right to self-determination, would not be a defence against those offences, despite section 1(4) of the principal Act. Section 1(4) of the principal Act does not protect an organisation that pursues self-determination through the commission of the acts mentioned in the definition through means that threaten or harm civilian populations or non-military combatants, from a charge of terrorism. Such acts would not constitute a legitimate pursuit of self-determination “in accordance with the principles of international law, especially international humanitarian law”.
See attached for full response
Mr Miller expressed his concern that many definitions of terms in the Bill are very broad, for example, may cause harm, intention, illegitimate, etc. Those were the types of phrases the law would depend on for prosecution. His party would feel more comfortable if the phrase “committed during an armed struggle” were to be removed and the rest part of the definition on self-determination remained in the Act. He was of the view that the section about self-determination was not arbitrarily included in the POCDATARA but was intentionally included in the Bill to define self-determination and assist the courts and public in identifying terrorist activities. The intention was to ensure that self-determination was not a terrorist activity.
Mr Dodovu appreciated the tolerance the Committee had shown and remarked that it was in fact the South African-ness that people should always respect and tolerate people with different views.
Mr Dodovu recognised that s235 of the Constitution protected people’s right to self-determination. That right allows people to promote their own culture, language and heritage. He asked Mr Miller to share any particular experience of when this right threatened the rights related to Chapter 2 of the Constitution. Chapter 2 listed all the rights protected under the Constitution but subjected to s36 of the Constitution.
Mr Dodovu did not think that the FATF had in any way suggested its particular concern about self-determination.
Mr Miller replied that a good practical example would be how courts would determine and interpret these terrorism amendments within the Constitution. Given the history of South Africa, he believed that the term “threatens the unity of the Republic” was a very vague term. He indicated that there were two incidents which had taken place in 1966 and 1968 under the apartheid regime which showed that advocacy for self-determination must not be considered as terrorist activities. In those two years, the then territories of Lesotho and Swaziland had pursued the trajectories of self-determination. Under the proposed amendments to POCDATARA, those actions would be characterised as terrorism as they threatened the unity of the country. Mr Miller was of the view that those acts should not be seen as terrorism.
Mr Dodovu interjected and indicated that he just wanted clarity and did not wish to get into a debate. The examples of Lesotho and Swaziland had taken place before the time of the current democratic government. His question was more specifically about any incidents of such a nature post-1994 or since the promulgation of the POCDATARA in 2004. The only cases of self-determination that he was aware of [post-1994] were the Boeremag, although he was unsure of whether this case was prosecuted under POCDATARA, and the other case was those with ill-intent at the ANC Mangaung conference in 2012.
He reiterated his question - since 1994, or the promulgation of the POCDATARA, had there been incidents of such nature that warranted the insertion of the phrase as suggested by Mr Miller?
Mr Miller replied that the inclusion of self-determination in the POCDATARA was the reason why there had been no problem since its inception. He highlighted the AbaThembu tribe case in the Eastern Cape which called for self-government in the territory. The Cape Independence Party was of the view that the Act itself, as is currently written, does not pose any problem and thus did not see any reason to remove it. His party’s concern was that should the entire section be removed, it would start creating precedents for actions that had previously fallen under legal and peaceful self-determination to be misinterpreted as overthrowing government or threatening territorial integrity and unity.
Mr Miller was of the view that the term which states “any act committed during a struggle by people including any action during an armed struggle” appeared to be the FATF’s main concern. He was of the view that should the phrase “armed struggle” be removed, it would satisfy the request of the FATF.
Adv Kritzinger indicated that the repeal of s1 of the POCDATARA must be understood in the context of international law. The POCDATARA must be aligned with Articles 1 and 2 of the Geneva Convention on victims during international and non-international armed conflicts. S1(4) only constituted an offence of the crime of terrorism contained in s2 of the principal Act and does not apply to the convention offences including the offence of terror financing. As it currently stands, an accused cannot even rely on it to avoid any conviction under s4. With specific references to s1(4), South Africa was found to be partially compliant with implementation and this contributed to the low rating. She highlighted the severe impact of not implementing the recommendations of the FATF because it would grey-list South Africa. With the deletion of s1(4), the crime of terrorism would still require the commission of a terrorist act coupled with a terrorist intention of intimidating the government of the day or the civilian population. It will distinguish itself from other crimes of violence whilst still conforming to international standards.
Ms Ellerbeck disagreed with Adv Kritzinger’s view that the two-legged test would be sufficient to protect against any abuse of vague phrases. She found it concerning and described it as a not very strong two-legged test.
Sussex Terrorism and Extremism Research Network (Stern) submission
Dr Albertus Schoeman, from Stern, took the Committee through its submission.
The submission mainly centred on the fact that in the original amendment Bill, a clause was proposed dealing with the “Prohibition of publication with unlawful terrorism related content” which created an offence related to the publishing, distribution, or circulation of content “intended to directly or indirectly encourage or otherwise induce the commission, preparation or instigation of any offence under this Act”. This clause was removed from the Bill in the Portfolio Committee’s deliberations, which Stern believed was a mistake and would undermine South Africa’s security. The removal of this important clause likely stems from concerns that this will overly prohibit freedom of expression and lead to abuses by the state. However, public comments making these claims fail to understand the boundaries and specificity of the law when it comes to the proposed criminalisation of terrorist content. The Constitution is clear in the limits of free speech and Article 16 of the South African Constitution on freedom of expression.
The Select Committee is asked that this clause prohibiting the publication of unlawful terrorist content should be returned to the Bill. This is an important tool for deterring the publication of such material which has been used to radicalise young South Africans to violent extremist causes and incite them to commit terrorist acts in South Africa. An intervention at this point will disrupt the chain leading from the radicalisation of an individual to the perpetration of terrorist acts. This is an important intervention which has the potential to prevent the loss of life and keep ordinary South Africans safe.
Many of the proposed amendments are long due. Stern welcomes the amendments and their intention to address contemporary terrorism challenges such as foreign terrorist fighters and the distribution of online terrorism-related content. Stern is supportive of proposed amendments and humbly requests that the proposed clause prohibiting the publication of unlawful terrorist content be returned to the Bill as this is an important tool for preventing the radicalisation of South Africans.
See attached for full submission
Adv Kritzinger provided the Department’s responses to Stern.
The Department responded that the clause related to the prohibition of any publications with terrorist-related content in the original amendment Bill and sought to create an offence related to the publishing, distribution or circulation of content to encourage or induce the commission of any offence under the principal Act. During the public participation process, when the Bill served before the Portfolio Committee on Police (PCoP), the Department carefully considered all submissions that cautioned about the constitutionality of the clause and possible infringement on the right of freedom of expression and agreed to propose to the PCoP the deletion of the clause. It is the Department’s considered opinion that prosecutions of publications with terrorist-related content, can be prosecuted under section 14 of the principal Act.
See attached for full response
Dr Schoeman responded to Adv Kritzinger that it was possible that s1(4) could be used to prosecute people for terrorist activities. His concern was more related to the specificity of the legislation. In the Henry Okah trial, the judges had some issues interpreting this legislation because it is a technical and highly complex issue. His proposal to return clause 3 to the Bill aimed to add greater clarity to the boundaries of what offences related to the publishing of terrorist content would constitute and also helped judges to assess what is or is not permissible.
Mr Dangor asked for Dr Schoeman’s view on advocating for the Saharawi people in Morocco if the Moroccan state brings a civil case against such activists.
Mr Dangor asked Dr Schoeman about the case of Israel, where soldiers from South Africa had gone in an undefined way to oppress the people of Palestine - he wanted to know if those soldiers would be prosecuted under the proposed amendments.
Mr Miller commented on Dr Schoeman’s interpretation of s4 self-determination and agreed with the vast majority of his submission. He distinguished terrorism from the advocacy for self-determination. The definition of terrorism determines that there has to be a violent element, whereas political self-determination cannot be regarded as terrorism. He appealed to the Committee that the sentencing of terrorist activities could be life imprisonment; thus, it is important that the definitions are clear for the courts to give the appropriate sentencing. He did not think Adv Kritzinger’s response was in line with any of those amendments.
Mr Dodovu described the Stern submission as good and informative. It shows that the presenter had done excellent research in an extremely important area. For the sake of interest, he asked Dr Schoeman to provide him with a link to access his article on violent extremism in South Africa.
Mr K Motsamai (EFF, Gauteng) sought advice from Dr Schoeman on the apartheid Israel regime terrorising Palestinian people and attacking children at schools.
Dr Schoeman shared the link: https://issafrica.org/research/southern-africa-report/violent-extremism-in-south-africa-assessing-the-current-threat.
Ms Ellerbeck’s signal was bad so she posted her comment in the Zoom chat as follows.
“Dr Schoeman mentions subsection 3 of the definition of terrorist activity in the principal Act as being added protection.
However, if you look at the Bill, vague (undefined / no criteria) phrase such as "is calculated to overthrow the government", it will be added in as subsection (iiiA), i.e. it will fall within the sections mentioned by subsection 3.
Thus, if you have "advocacy" that is deemed by the state as being "to overthrow the government", then subsection 3 offers you no protection at all....
again... the vague phrases are dangerous and need to be fixed.”
Dr Schoeman replied that there is no standard definition of terrorist activity. The definition of terrorism for one person could be regarded as freedom fighters for others. Hence, the topic has been under intense discussion in the aftermath of 9/11. The definition of terrorism usually is derived from the international convention adopted by the U.N. General Assembly and the U.S. Security Council. The understanding of terrorism focuses on two things: The first is the violent and indiscriminate act and the second is coercion. The discussion on terrorism in the international sphere still largely focuses on the perpetration of the act rather than the ideology or reasoning behind it. There is a clause in POCDATARA which specifically states that political motive or ideology was not a legitimate defence for carrying out terrorist acts which is precisely because of the egregious nature of those acts which could not be justified.
He agreed with Mr Dangor that the Israel case was a terrible issue and believed that South Africa should totally support Palestinian independence. He distinguished that there is a difference between supporting goals and ideologies versus supporting their perpetration of specific terrorist acts which are criminalised under International Conventions to which South Africa was a Member State. Those issues in which the international community expressed concerns were around nuclear terrorism, and the use of chemical weapons, issues that the international community all agree should not be allowed in a struggle for self-determination.
Dr Schoeman replied to Mr Motsamai that the Geneva Convention on Just Warfare was in place, which clearly stated which activities during warfare were illegitimate. He believed Mr Motsamai’s question was a different question on terrorist activities perpetrated by non-state actors. There could potentially be a case for countries perpetrating state-sponsored terrorist acts under international criminal law to stand trial.
Both Adv Kritzinger and Dr Schoeman indicated that they would not be able to respond to Ms Ellerbeck at the moment and would need more time to read through her comments and apply their minds before giving their responses
Deputy Minister Mathale thanked the presenters and complimented the engagements as being very helpful. The Department looked forward to engaging with the Committee again.
The Chairperson also thanked the participants for their submissions. She thanked the Department and legal teams. The engagement has given Members a clear sense of the concerns raised in the Bill. Further submissions would be heard tomorrow. Thereafter the Committee would consider the Department’s responses and further deliberate on the Bill later in the week.
Further responses to outstanding issues today, could be submitted to the Committee in writing.
The meeting was adjourned.
Shaikh, Ms S
Bartlett, Ms M
Dangor, Mr M
Dodovu, Mr TSC
Maleka, Ms AD
Mathale, Mr C
Michalakis, Mr G
Motsamai, Mr K
Ndongeni, Ms N
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