The Select Committee met on the virtual platform to receive the Department of Police response to the concerns by the public on the Protection of Constitutional Democracy Against Terrorist and Related Activities (POCDATARA) Amendment Bill. The submissions requested a narrowing of the broad definition of “terrorist activity”; the retention of the deleted section 1(4) of the principal Act; and the request for the inclusion of a humanitarian exemption clause. There was a request that the clause deleted in the Portfolio Committee on the prohibition of the publication of unlawful terrorist content should be returned to the Bill. The Department did not accept these concerns and provided reasons for this. These were supported by the State Law Advisor, the Parliamentary Law Advisor and the Financial Intelligence Centre.
Committee members asked about the impact of the deletion of section 1(4) on humanitarian organisations. However, other Members noted that terrorist organisations would be opportunistic and operate under the false pretence of a humanitarian organisation. Clarity was sought on diplomatic immunity as well as the appropriate applications of such privileges and immunities for certain organisations and individuals.
The Chairperson acknowledged the presence of Deputy Minister Cassel Mathale. The preceding day the Committee had heard oral submissions from FORSA, the Cape Independence Party and STERN. It had also received two additional written submissions. One was from a member of the public, Mr Pretorius, and the other was from the International Committee of the Red Cross (ICRC).The Committee had also received an indication from Mr Rob Hutchinson from DearSA that he would be available at 12pm to make an oral submission to the Committee. Given the lack of uncertainty, she said that the Committee should deal with the matter as it got closer to the time.
In this meeting, the Department should respond to matters which arose during the hearing. Those were:
- The request from the Cape Independence Party to ensure that self-determination is not misinterpreted as terrorism and to remove the reference to violent acts;
- The question by FORSA on how advocacy would be protected under the Bill and not be classified as terrorism because the definition of terrorist activity in clause 1(1)(iii) offered no protection for advocacy activities;
- The concern by STERN about the Portfolio Committee's removal of clause 3 on the Prohibition of publication with unlawful terrorism related content.
The Deputy Minister did not make any opening remark and indicated that he would allow his departmental staff to provide the department’s response to the written submissions.
Department’s response to submissions
Adv Dawn Bell, Chief Director: Legislation, and Adv Ulinda Kritzinger, Legislation, of the Civilian Secretariat for Police Service (CSPS) presented the response (see document) to these submissions:
- Mr Neil Pretorius was of the view that the Bill is too broad and should be scrapped.
He stated that defining a terrorist activity based on acts that are intended to cause “feelings” of insecurity, terror, fear or panic in the civil population, seems to favour the State’s interest, rather than protecting lives.
• Department response: The comments are noted, but do not take into account all of the elements of the crime that have to be proven for a successful prosecution.
- The International Committee of the Red Cross (ICRC) advocated for the retention of s1(4) of the Principal Act as well as the inclusion of a humanitarian exemption clause.
• Department response: FATF wants South Africa to narrow down the scope of the terrorist financing offence in section 4 in its comparison to the requirement of Article 2 of the Terrorism Financing Convention. Open ended reference to humanitarian organisations would open the door to terrorist entities impersonating such organisations
- FORSA said the definition of “terrorist activity” in clause 1 contains broad phrases that are open to abuse. The Bill was too vague, particularly the phrase “calculated to overthrow the government”. If that phrase was added, advocacy activities would definitely fall within the ambit of section 1(1)(iii) in the definition of 'terrorist activity' as it did not offer any protection to advocacy at all.
• Department response: The definition explains 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 terrorizing the civil population or government, it cannot be considered as terrorism under the Act. If one element is missing, the crime is not established. The circumstances and evidence of each particular case will be looked at. Prosecution under POCDATARA is only possible with the written authority of the National Director of Public Prosecutions.
- STERN said that the clause deleted by the Portfolio Committee prohibiting the publication of unlawful terrorist content should be returned to the Bill. It believed that the deleted clause gave greater specificity about the publication and distribution of unlawful terrorist content.
• Department response: The clause 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 of the Portfolio Committee, the Department carefully considered all submissions that cautioned about the constitutionality of the clause and possible infringement on the right of freedom of expression. It agreed to proposal to delete the clause. Prosecutions of publications with terrorist related content, can be prosecuted under section 14 of theAct.
- Cape Independence Party objected to the deletion of s1(4) as it assists to define the law and ensures that self-determination is not misinterpreted as terrorism. This also applied to the definition of “terrorist activity” which states 'any act which is calculated to overthrow the government'.
Department response: Section 1(4) of the principal Act does not protect an organisation that pursues self-determination through the commission of the acts through means that threaten or harm civilian populations from a charge of terrorism. Such acts would not constitute a legitimate pursuit of self-determination in accordance with the principles of international law.
- Dear SA stated that the POCDATARA Amendment Bill provided no additional benefit to curbing terrorist activities and believed that the principal Act was more than adequate to meet the demands of the Financial Action Task Force (FATF).
• The Department would await the oral submission by Dear SA
Mr G Michalakis (DA, Free State) noted the potential impact of the deletion of s1(4) on humanitarian organisations. Most humanitarian organisations such as the ICRC were registered organisations, so the inclusion of some provisions to safeguard them would not do much harm. He suggested including a clause which explicitly states "registered organisations". On the concern that terrorist organisations could be operating under the guise of humanitarian organisation, he asked the Department if there is a solution to address this concern of the FATF.
Mr M Dangor (ANC, Gauteng) recognised the importance of ICRC submission given the organisation’s coverage of humanitarian work around the world. The old definition of terrorism should be retained and did not understand why the humanitarian provision was removed.
Mr T Dodovu (ANC, North West) questioned why Mr Pretorius had such a negative view about the Bill. He described his submission as being unhelpful to Members to understand and grasp important issues. The fact of the matter is that terrorism is a serious concern both domestically and internationally and the government certainly cannot have it threaten South Africa’s constitutional democracy. He asked if the Committee might have a way to reach out to Mr Pretorius and engage with him to fully understand his submission.
The Chairperson sought more clarity on the submission proposal of an humanitarian exemption clause. She noted that the Act is aligned with the Geneva Convention. She wanted to understand how the exemption clause would ensure that humanitarian aid reaches civilians needing assistance.
Adv Kritzinger explained the department response to Mr Pretorius’s submission. The common understanding is that the principal Act does not meet the FATF demands and the Amendment Bill addresses the recommendations and guidance of these oversight structures. Most particularly, the 2018 recommendations by the Counter-Terrorism Committee Executive Directorate (CTED), the 2021 Mutual Assessment Report of the Eastern and Southern Africa Anti-Money Laundering Group as well as FATF. The principal Act is very technical in nature, but it is important to make these amendments to bring the Act in line with international law as well as ensure its oversight by the courts.
On the suggested exemption clause, it must be noted that the terrorist financing provisions in the Bill were derived from the Terrorist Financing Convention. The crime only applies to financing terrorist activities and entities. The ICRC renders humanitarian assistance to victims of armed conflicts and such activities cannot be remotely categorised within the ambit of terrorist financing. She cautioned the Committee that any open-ended references to humanitarian organisations would open the door to terrorist entities impersonating such organisations to advance their own dangerous agendas.
Mr Pieter Smit, Executive Manager: Legal and Policy: Financial Intelligence Centre (FIC), elaborated on the exemption clause which was suggested by humanitarian organisations. The current exemption of s1(4) does not refer to organisations providing humanitarian relief. As Adv Kritzinger had explained, even if the coverage of the exemption was to be adjusted by removing references to armed struggles or violent acts, it would still not suffice to meet the international convention standards. The FATF did not dictate how countries should criminalise terrorists, but they relied on the UN Convention to benchmark and evaluate whether a country’s criminalisation of terrorist financing is adequate. Article 6 of the Convention states that a country should take all measures including legislative measures to ensure that the scope of the financing offence is not limited by a number of considerations including ideological: "to ensure that criminal acts within the scope of this Convention are under no circumstances justifiable by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature." That is why even if one removes the references to armed struggle but retaining other limitations in the definition of terrorism, it would nonetheless run up against Article 6 of the Convention.
On the concern about humanitarian aid, Mr Smit replied that his understanding was that the ICRC was asking for more exemptions than what s1(4) of the POCDATARA provided for. The FIC stance was that it would create a conflict or open a loophole, as Adv Kritzinger had mentioned, for terrorist organisations to impersonate under the guise of humanitarian organisations to raise funds. For bona fide humanitarian organisations, they must comply with the Nonprofit Organisations Act. If any of those registered organisation wished to do fundraising or charitable work, the amending of the NPO Act was being dealt with in another Committee in Parliament at the moment. The process faced much pushback from many non-profit organisations. Until that process was concluded, it would be premature to consider such an exemption as suggested.
Mr Smit assured the ICRC that any activity that would in no way constitute criminality and is entirely justifiable and defensible in normal legal terms would not amount to any criminal activity or terrorist activity. It was precisely FATF’s finding that South Africa’s terrorist financing offence is closely aligned to international conventions as had been set out by the UN. Activities which fall outside of the definition of terrorism cannot be classified as a terrorist act. He did not think that this Act would have the effect of wrongfully prosecuting bona fide humanitarian assistance and relief.
The Chairperson noted Dear SA would not be able to make a submission as Mr Hutchinson was still in court
Adv Kritzinger explained that Dear SA had submitted a survey of over 26 000 public comments that had objected to the Bill's definition of terrorist activity. Dear SA had said it would provide an alternative definition but it had not managed to do so to date. The Department's response to the Dear SA submission was that the definition in the principal Act does not meet the FATF requirements. She quoted again the Amendment Bill addresses the recommendations of the oversight structures which were the 2018 recommendations by the Counter-Terrorism Committee Executive Directorate (CTED), the 2021 Mutual Assessment Report of the Eastern and Southern Africa Anti-Money Laundering Group and FATF and to bring the Act in line with international law and court judgments.
Police Deputy Minister Cassel Mathale appreciated the leadership of the Chairperson and the work done by the Department’s legal team on the Bill. He guaranteed that the Department would be available whenever it was needed by the Committee.
Mr Shaun van Breda, Senior State Law Advisor, completely agreed with the Department’s legal team's responses. He had a few comment on certain concerns raised about the Bill.
On the definition of terrorist activity, the majority of the concerns were actually on the definition as provided for in the current Act. It is currently in operation in our law. It must be noted terrorist activity is not limited to those provisions referred to in the definition. And as held by the Constitutional Court judgement Okah v S: "A 'specified offence' is closely integrated with the offence of terrorism that lies at the heart of the entire legislative scheme". In Section 2 of the Act an offence of terrorism is “any person who engages in a terrorist activity". Therefore a terrorist activity as contemplated in the Act is vital to the entire legislative scheme of the Act. Amendments to the definition may result in necessary substantial consequential amendments to provisions of the Act. This would include amendments to provisions currently not being amended in the Bill. That would have to be carefully considered before such a substantive amendment was made.
On the concern about s1(4), Adv Van Breda pointed out that the right to self-determination is protected because it is a right guaranteed in s235 of the Constitution. The deletion will not prejudice that right because that right is enshrined in the Constitution. A peaceful exercise of s235 of the Constitution for self-determination cannot be deemed a terrorist act. To prove the intention is a key element to qualify an act as a terrorist activity.
Adv Van Breda addressed the concern that the deletion of s1(4) may render the work of humanitarian organisations as being terrorist activities. He recommended the Select Committee consider the immunities provided by the Diplomatic Immunities and Privileges Act (DIPA). Section 5(3) of the Act states that “any organisation recognised by the Minister and any official of such organisation enjoy such privileges and immunities as may be provided for in any agreement entered into with such organisation”. One of the most prominent examples was the agreement between the Republic and the International Committee of Red Cross. Hence, ICRC officials who are South African nationals enjoy immunity including being called as a witness or being required to give evidence. For ICRC officials who are not South African citizens or permanent residents, they enjoy the same immunity accorded to diplomatic agents in terms of the Vienna Convention on diplomatic relations. Hence, ICRC officials enjoy diplomatic immunity of criminal jurisdiction in terms of Article 31 of the Vienna Conventions and the convention has the force of law in the country. Further, s7(3) of DIPA grants Minister the power to grant such immunity to an organisation or a person. In his view, there is sufficient measures to safeguard those international organisations who are engaging in such humanitarian work.
Mr Dangor sought clarity on the diplomatic immunity given to those delegates who attended Pan African Parliament and asked how the case of former Sudan President Al-Bashir should be treated.
Adv Van Breda explained that Members of the Pan African Parliament were diplomatic officials and would thus enjoy immunities. This Bill focused on humanitarian organisations that were providing aid. On the question around Al-Bashir, heads of states also enjoy certain privileges and immunities as exposed by a case a few years back which involved the diplomatic immunity of the spouse of a head of state. The judgement later ruled that the spouse of a head of state does not enjoy the same level of immunity as a head of state.
Ms Sueanne Isaacs, Parliamentary Legal Advisor, indicated that many provisions in the Bill are policy considerations and thus the Department was in the best position to explain the rationale. She assured the Committee that unless a person conducts an act which falls within the ambit of the principal Act, the right to freedom of expression and self-determination are protected in the Constitution and will not be criminalised.
On the definition of terrorist activity, she was of the same view that the intention to commit a terrorist act must be proven before the act could be classified as a terrorist activity.
Ms Isaac agreed with the Department that a broader exclusion or exemption could open up loopholes for terrorist organisations to clandestinely legitimise their terrorist activities.
Mr Bert van der Walt, Legal Adviser: South African Police Service (SAPS) indicated that the Diplomatic Immunities and Privileges Act of 2001 specifically provides immunities when there are agreements between government and organisations. Members of the Pan African Parliament fall within such an agreement that was concluded in September 2004.
The Chairperson adjourned the meeting.
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