Protection of Constitutional Democracy Against Terrorist and Related Activities Amendment Bill: deliberations; with Deputy Minister

Meeting report

The Chairperson greeted Members of the Select Committee, Deputy Minister of Police, Mr Cassel Mathale, and other guests on the virtual platform. She declared that the meeting may proceed.

The Committee had not received any apology from any Members.

The meeting would continue its previous session on the deliberation on the Protection of Constitutional Democracy Against Terrorist and Related Activities Amendment Bill (POCDATARA). The Select Committee would receive a brief summary covering the Department’s responses to the stakeholders who had commented on the POCDATARA Bill in the past two meetings.

Department’s responses to public submissions

Adv Ulinda Kritzinger, Civilian Secretariat for Police Service (CSPS), took the Committee through the Department’s summary responses to public comments.

Comments were provided on the following issues:

• The definition of terrorist activity which was submitted by FORSA, Dear SA, the Cape Independence Party and Mr Nelius Pretorius.
• The deletion of s1(4) of the Act from the International Committee of the Red Cross (ICRC) and the Cape Independence Party.
• The ICRC’s appeal to Parliament to consider including a clause in the Amendment Bill to provide for exemption from criminal sanctions of impartial humanitarian assistance provided by organisations that operate with state consent.
• The deletion of clause 3 in the original version of the Bill as submitted by Stern.

The detailed responses can be found in the attached document

Discussion

The Chairperson thanked Adv Kritzinger for her presentation and opened the floor to Members.

Neither Mr Shaun van Breda, Office of the State Law Advisor, nor Ms Susanne Issacs, Parliamentary Legal Services, had any additional inputs to make.

Deputy Minister Mathale remarked on the importance of this piece of legislation to the country and the international community in the fight against terrorism.

Mr M Dangor (ANC, Gauteng) said that since there were no material differences between the Act as it stands and the inputs the Committee had received from civil society, he proposed adopting the Act and that there was no need for further deliberation.

Mr G Michalakis (DA, Free State) said the Bill was not bad overall. But he was very concerned about whether it should be passed on Tuesday next week.

Firstly, Mr Michalakis expressed his concern about the definition of terrorism in the Bill. The definition proposed in the amendments was intentional harm, whereas the definition normally would be violence and intimidation. Mr Michalakis pointed out that harm was too broad a concept ranging from an unkind word to murder. In addition, he noted that not all aspects of sections a and b covered the elements of violence and intimidation which meant that there would be instances in which mere harm could be categorised as terrorism.

Secondly, Mr Michalakis highlighted the explicit protection of humanitarian organisations. He noted Adv Kritzinger’s response but also reminded everyone that the standing of domestic law is so much stronger than international treaties in courts. Thus, he did not think that it would do any harm to include something to that effect in this version. He believed that the Committee could define humanitarian organisations in a way to ensure that suspect elements do not abuse this clause. It was not a problem in the principal Act and he believed that including it in the domestic law would have a much more sound legal standing to protect humanitarian organisations.

Ms M Bartlett (ANC, Northern Cape) responded that there was not a universally accepted definition of terrorism, hence, there will be the consideration of brutality in any act to classify it as a terrorist act.

Ms Bartlett remarked that acts of terrorism evolve with time, so it is necessary to regularly update the definitions of terrorist activities. She highlighted that terrorist activities are becoming more complex with the rapid development in information and technology. The world had significantly changed since 2004, when POCDATARA was promulgated; hence, she supported the definition of terrorist activity in the principal Act with minor amendments to reflect such changes.  

Ms A Maleka (ANC, Mpumalanga) supported the deletion of s1(4) of the principal Act. Ms Maleka was of the view that South Africa and many other countries all had a history of fighting for the right to self-determination to be protected. Hence, that right is being recognised and protected under the Constitution. Since that right is being protected under the Constitution, she believed that the Committee should not include it in the Bill, that may lead to undesirable consequences such as certain rights trumping other rights in the Bill. Further, the deletion of s1(4) also aims to align the principal Act with the development of international laws such as Protocols 1 and 2 of the Geneva Convention. She thus expressed her support for the deletion.

Mr E Mthethwa (ANC, KZN) supported the deletion of clause 3 in the original amendment bill which dealt 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”. The Portfolio Committee on Police was of the view that the insertion of that clause would be encroaching on people’s freedom of expression and an offence of such act could be prosecuted under s14 of the principal Act. Hence, there is no need for such an insertion, and he thus supported the deletion.

Ms Bartlett interjected and pointed out that the terror financing provision in the Bill derives from the Convention on the Suppressing of Financial Terrorism. The crime only applies to financial terrorist entities and activities. Therefore, humanitarian organisations will not be affected by such a provision and she thus did not think there was a need to provide such an exemption specifically for those organisations in the Bill.

The Chairperson requested the Department to respond to Mr Michalakis’s concerns on the definitions.

Department’s responses

Mr Pieter Smit, Financial Intelligence Centre (FIC), expanded on including violence in the new definition. He reminded Members that more attention should be given to the new additions on the types of activities which could cause harm such as the destruction of information infrastructure affecting essential services. He pointed out that such an activity can be achieved via cyber-attacks and could do very serious harm without inflicting actual physical damage on another person. Hence, he was of the view that it was very important to include this type of harm in the definition of the Bill.

Adv Dawn Bell, Chief Director: Legislation, CSPS, indicated that the Department had no additional comments or explanations on the public comments around humanitarian organisations.

Mr Michalakis understood Mr Smit’s argument and supported the cyber-crime and terrorism input. But he reiterated his argument that the word “harm” simply was too broad a phrase that would unintentionally open the door to other lesser acts being classified as terrorist acts.

Mr Smit replied that Members must read the definition in conjunction with other activities listed in paragraph a of the Bill which referred to serious terrorist activities of which none were minor in nature. He emphasised that almost all those activities were serious criminal offences such as murder and sabotage. The intention of the legislation was founded on “causing serious harm” - Members should not isolate the word harm without its context.

Mr van Breda clarified that the term harm in the definition of the Bill is exclusively confined to those terrorist activities stated in the principal Act. This word cannot extend beyond the scope of the principal Act.

Mr C Dodovu (ANC, North West) remarked that he could not think of any piece of legislation that could better serve the purpose of protecting the Constitution other than this one, so he expressed his support for the adoption of the Bill. He also supported adopting this Amendment Bill to avoid the SA being grey listed.

Mr Dangor supported Mr Dodovu’s view in totality and was of the view that the Select Committee should go ahead with this Bill.

Mr Michalakis indicated he was not 100 percent satisfied with Mr Smit’s response. Although he fully understands the existence and impact of cyberterrorism, he maintained the view that cyberterrorism does not have the two elements of intimidation and violence. He pointed out that according to the definition in the Bill, it was not only acts related to cyber-crimes or cyber-terrorism that had harm as a mere element; there were other certain acts which did not have an element of terrorism but only had harm as an element. Should the acts be only about cyber issues, Mr Michalakis would have agreed with his colleagues on their views.

The Chairperson thanked all Members, presenters and departmental officials for the inputs.

The Chairperson informed Members that the scheduled meeting for tomorrow would depend on the response from AfriForum regarding whether the organisation would want to make an oral presentation on the Bill.

The Chairperson adjourned the meeting.