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SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
11 August 2004
PROTECTION OF CONSTITUTIONAL DEMOCRACY AGAINST TERRORIST AND RELATED ACTIVITIES BILL: BRIEFING
Chairperson: Kgoshi Mokoena (ANC)
Protection of Constitutional Democracy against Terrorist and Related Activities Bill [B12B-2003]
The Committee was briefed on the Protection of Constitutional Democracy against Terrorist and Related Activities Bill by Dr Jacobs of the SA Police Services. In essence, the briefing spelled out that the Bill was the result of South Africa's obligations in terms of a number of international agreements and treaties. The definition of a "terrorist activity" received much detailed attention as did the provision that prosecution in terms of the future Act had to be sanctioned by the National Director of Public Prosecutions. The Committee took issue with the word "thing", the duty of reporting contemplated in the Bill and the process that prosecution for a terrorist act would follow.
Chairperson Mokoena (ANC) welcomed the Committee and guests to the meeting. He called upon Dr Jacobs from the South African Police Services (SAPS) to introduce the team that was presenting the Bill to the Committee. Dr Jacobs introduced Advocate Nel, Mr Pierre Van Wyk (researcher from the Law Reform Commission), and Mr Pieter Smit (Office of the Financial Intelligence Centre).
Dr Jacobs said the Bill had been introduced as the 'Anti-Terrorism Bill' in November 2003. He said the Bill had not been finalised before the 2004 election and this had the same effect as the House rejecting the Bill. Dr Jacobs said that it was felt best to revive the Bill after the elections.
Dr Jacobs said that the Bill needed to be looked at afresh in the new term and therefore he made the Committee aware that there are some technical amendments that are proposed to the Bill and that there is a submission from COSATU that needs to be addressed when the merits of the Bill are discussed. Additionally, Dr Jacobs said the date of commencement of the Bill had lapsed and therefore a new date of commencement had to be determined.
Dr Jacobs continued that the most important definition in the Bill was that of "terrorist activity." He said "terrorist activity" had been chosen as there was too much controversy over the definition of "terrorism." He said that in terms of the definition of "terrorist activity", the Committee should see that a "terrorist act" has three elements. He read out Sub-Clause 1 (1)(xxiv) and said that a "terrorist act" therefore comprises an act that is intended to have a consequence recognised in the Bill and which is committed for one of the motives listed in the Bill.
Dr Jacobs said that this Bill is proposed in furtherance of South Africa's international obligations and he read out the list of these Conventions in the Preamble to the Bill.
Dr Jacobs read out Clause 2(1) of the Bill. He continued to list the Convention Offences in Clauses 4 to 10 and then he listed the Other Offences in Clauses 12 to 14.
Dr Jacobs read out Clause 15 and said that it extended the jurisdiction of South Africa's courts but he said that a check was built in to the prosecution of these crimes in the form of Clause 16(1). Dr Jacobs said that in terms of this clause, no prosecution may be instituted without the written authority of the National Director of Public Prosecutions.
Dr Jacobs mentioned that there is a duty created in Clause 16(2) to report to the Secretary General of the United Nations, the Council of the International Civil Aviation Organisation or the Secretary General of the International Maritime Organisation where applicable.
Dr Jacobs read out Clauses 18(1)(a), (b), (c), 19, 22, 23, 24, 25 and 26.
Dr Jacobs read out the titles of the laws repealed from the Schedule of the Laws Repealed.
Dr Jacobs said that he would cover some areas in more detail if the Members had any questions.
Chairperson Mokoena (ANC) thanked Dr Jacobs and proposed that the Committee go through the Bill clause by clause for clarity. Dr Jacobs noted that Professor De Koker of Rand Afrikaans University suggested that the definition of "property" at line 38 on page 7 be aligned with the definition of "property" in the Prevention of Organised Crime Act. Dr Jacobs said the definition in the Bill is wider than the definition in the Prevention of Organised Crime Act as it follows the definition in the Financial Intelligence Centre Act but that he did not have a problem with Professor De Koker's suggestion, provided the definition is not made any narrower than it is in the Prevention of Organised Crime Act.
Dr Jacobs said the definition of "terrorist activity" at line 14 on page 8 is the crux of the whole Bill and noted that three elements had to be present for an act to be a terrorist act.
Dr Jacobs said that it was suggested that Sub-Clause 6 at line 41 on page 9 should be aligned with the Financial Intelligence Centre Act and the Prevention of Organised Crime Act.
Chairperson Mokoena said that the definition of "terrorist activity" was one of the very sensitive issues where some compromises were sought and some agreements were made. He said that he could report that there are discussions in the Ministry to speed up the process of adopting this Bill. Chairperson Mokoena asked Advocate Van Wyk for the history of the definition.
Advocate Van Wyk said the definition was originally taken from the Canadian jurisprudence but it was later influenced by the jurisprudence of New Zealand and Australia. Additionally, he said the introduction of the Bill in Parliament influenced the definition.
Advocate Nel said that the arguments by COSATU on the definition were not new. He said they have their origin in the Helsinki Federation on Human Rights. He commented that many countries, in writing their security legislation, did not consider the human rights impact of such legislation and this was picked up on in the Helsinki Federation. However, he said COSATU's arguments rest on a comparison of South Africa's law with Canadian law. He said these two systems should not be compared on this subject, as the Canadian law is too vague while the South African law is specific. Additionally, he said our definition should be read in conjunction with the other provisions in the Bill and parts (a), (b) and (c) beginning at line 16 on page 8 should be read together while some of the people objecting to the definition have separated them.
Advocate Nel said that South Africa's Bill has built in checks and balances in the form of Clause 16, in the definition of a "terrorist act" itself and on page 9 in paragraphs 4, 6 and 7.
Advocate Nel said that the National Director of Public Prosecutions had already established a Priority Crimes Unit for advising on cases referred to the National Director for potential prosecution. Therefore, he said that the chance of punishing an ordinary protester is zero and therefore COSATU's fears might be allayed. He believed that on a whole the built in checks and balances are appropriate.
Chairperson Mokoena said that the merits of the Bill would be discussed at length at a subsequent meeting. He asked for clarity on the "lawful / unlawful" issue in Clause 1(3) that was discussed at a previous meeting.
Dr Jacobs said that the word "lawful" was included in the Canadian legislation until they heard a submission from Amnesty International on the issue. Dr Jacobs said his team recommended the deletion of the word "lawful" as they said if the word were removed, a terrorist act would still be prosecuted if it resulted in the harm contemplated in the Bill regardless of its lawfulness. He said the Portfolio Committee on Justice and Constitutional Development argued for its inclusion but that from a drafting point of view, his team would like to be guided by the Canadian decision.
Mr Worth (DA) said he had a problem with the vagueness of the word "thing" throughout the Bill.
Advocate Nel said that "thing" was a word included by the State Law Advisors, but he agreed that the use of the words "object" or "article" might be better. He noted though that "thing" was used in other South African legislation on the subject and that if "thing" is read in context, it actually derives a definite meaning.
Dr Jacobs said that "thing" was found in foreign legislation too. He said that he wanted the Committee to note the suggestion that Sub-Clause 2 on page 2 be shifted to under the definitions in the Bill as it is a definition.
Chairperson Mokoena looked at Clause 7 and asked whether the situation where a husband takes his wife hostage out of frustration would be included under the offences in Clause 7.
Dr Jacobs said it would not as Clause 7 relates specifically to Convention Offences and said that the hostage taking had to be in the context of terrorism to qualify under the Bill.
Dr Jacobs said that Professor De Koker's arguments dealt with Clauses 11 and 12. He said that Professor De Koker said that Clause 17(5) creates an exception to prosecution where a person reports another person for suspicion of terrorism. He said Professor De Koker argued that such an exception should also apply to a person or institution that reports under Clause 11 or 12. He said Professor De Koker proposed specific wording that his team believed to be fair.
Mr Smit said that Clause 4 creates an offence for financing terrorism. He said that the Financial Intelligence Centre Act requires a similar reporting system and excludes an institution that reports for civil liability and prosecution for money laundering. Mr Smit said that Professor De Koker argues for a similar sort of arrangement under this Bill.
Mr Le Roux (DA) asked whether there is an obligation on the reporter to inform the person who has been reported on.
Mr Smit said that under the Financial Intelligence Centre Act it is an offence to inform the person under suspicion where the institution has reported within the framework of the Act and in good faith. He said there is no similar provision in this Bill and therefore he was unsure of the consequences of informing the person under suspicion.
Chairperson Mokoena asked Dr Jacobs whether his team was sympathetic to Professor De Koker's suggestions. Dr Jacobs affirmed this.
Chairperson Mokoena said the Committee should take note of the submission when the merits of the Bill are discussed.
Mr Mkhaliphi (ANC) said that he wanted expansion on the accommodation of suspected persons issue.
Dr Jacobs said that there must be reason to suspect that something is wrong with the passport or identity document of the person in question for the duty to report on a person being accommodated. Dr Jacobs said this is fairly difficult to prove as it requires an objective test.
Mr Moseki (ANC) said he wanted the change with regard to the word "thing" carried throughout the Bill.
Dr Jacobs turned to Clause 14 and said that it was included following the Wouter Basson case where the court found that conspiracy in South Africa to commit an offence abroad is not an offence. Therefore he said explicit mention was made of such an offence in the Bill.
Mr Mkhaliphi (ANC) asked how the procedure in Clause 16 differed from the ordinary procedure.
Advocate Nel said that in terms of the ordinary procedure, the prosecutor responsible for a particular case determines whether to prosecute except where the duty to prosecute is otherwise determined in legislation or national directives. He said that in this instance the decision to prosecute would instead rest on the National Director of Public Prosecutions.
Mr Mkhaliphi (ANC) asked whether this meant that these prosecutions would not be taken lightly. Advocate Nel confirmed this.
Chairperson Mokoena asked for some elaboration on the freezing order.
Advocate Nel said that there is a resolution of the United Nations Security Council that property connected to a terrorist activity must be frozen. He said that lists of persons suspected of terrorist activities are published from time to time and South Africa is then obligated to freeze any property owned by persons or organisations on those lists.
Mr Smit said that in addition to the United Nations' lists, countries used to inform each other of property to be frozen but that there was no objective mechanism to enforce this. Mr Smit said that this Bill requires a court in South Africa to determine when property should be frozen. He said it thereby guards against other countries forcing us to freeze property and it prevents the freezing of property from being a unilateral act.
Dr Jacobs said that the lists published by the United Nations had thus far been limited and this mechanism enables us to go beyond the published lists if necessary.
Dr Jacobs said that Clause 24 differs from a provision in the SA Police Act in that a judge is required to sanction the cordoning off of an area and that an area can be cordoned of for more that the 24 hours as specified in the SA Police Act.
Mr Moseki (ANC) asked how long it would take to get a judge's permission. Dr Jacobs said this could be done speedily within the judge's chambers provided the correct motivation is presented.
Mr Adams (ANC) asked why it had to be a director and not a senior superintendent who would make the court application.
Dr Jacobs said that such an operation would not be restricted to one branch of the SAPS and therefore it would be viable to at least have a director involved.
Mr Mkhaliphi asked what would happen in a rural area where there is only a superintendent.
Dr Jacobs said that as there is not a judge in every area, the application would have to be made where there is a judge. Dr Jacobs said that there would be a director in the area of a judge.
Dr Jacobs said that he would compile a document including the proposed technical amendments and Prof De Koker's suggestions for the Committee to consider at its next meeting.
The Committee discussed whether they were going to attend a Department workshop at Goodwood Prison on 17-18 August. After some discussion, they agreed to attend, but to return to Parliament before lunch to attend the plenary sitting on 17 August.
The Chairperson noted that the new Minister had requested to study all proposed Bills before Committee deliberations. The proposed Bills would include the Child Justice Bill, Criminal Law (Sexual Offences) Bill, the Superior Courts Bill and the Judicial Officers Bill which has been split into three bills: Judicial Services Commission Amendment Bill, the Judicial Conduct Tribunal Bill and the Magistrate's Amendment Bill.
The meeting was adjourned.
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