Anti-Terrorism Bill: Deliberations

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Justice and Correctional Services

01 September 2003
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Meeting report

SAFETY AND SECURITY; JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEES: JOINT MEETING
2 September 2003
ANTI-TERRORISM BILL: DELIBERATIONS

Chairperson:
Mr M George (ANC)

Relevant documents:
Draft Counter -Terrorism Bill (2003-08-01)
Prevention of Organised Crime Act 121 of 1998
Financial Intelligence Centre Act 38 of 2001
Criminal Law Amendment Act 105 of 1997
Extradition Act 67 of 1962
Criminal Procedure Act 51 of 1977

SUMMARY
The Committees considered the penalties under the Counter-Terrorism Bill including the forfeiture of property only if it was involved in the commission of terrorist activities. They also dealt with the powers of police officers to investigate or prevent terrorist acts and the powers of Parliament with regard to the resolutions of the UN Security Council. The Chair noted that there were no major differences amongst the members but acknowledged that there is still much to be done before the Bill could be passed.

In the afternoon, the Committees considered amendments to those Acts that would need to be amended as a result of this Bill: Prevention of Organised Crimes Act, Financial Intelligence Centre Act and Extradition Act, Criminal Law Amendment Act and the Criminal Procedure Act. With the Financial Intelligence Centre Act, it was agreed that reference to the fact that the transaction are or are not related to terrorism might have a limiting effect as institutions may not report some transactions if they are satisfied that there is no link with terrorism. Instead the Act will be amended to oblige institutions to report complex, unusually large transactions and unusual patterns of transactions.

MINUTES
Draft Counter-Terrorism Bill
Chapter 2: Offences and Penalties Part 5: Penalties
Clause 20: Penalties
Adv J De Lange (ANC) asked the drafters to clarify what is meant by the words "designated magistrate's court" in 20(1)(a)(iii). Also as this clause only refers to imprisonment and does not have a fine option, would the latter be covered in the former in terms of the law of interpretation? He noted that 20(1)(c) only refers to the provisions of Section 16(1)(a) and asked whether this is because the provisions of the said section relates to hoax.

Mr G Louw (SA Law Reform Commission) said that a designated magistrate's court would be a magistrate designated by the court for such purpose and having not less than ten years' experience as a magistrate. The drafters would try to come up with a clear definition for a designated magistrate.

He said that a prison sentence does not necessarily involve an option of fine and hence it is vital that members should decide whether they wish a sentence of fine to be an option in these circumstances. He said that without such provision then courts would not be able to impose a sentence of a fine but only that of imprisonment. He affirmed that 20(1)(c) indeed relates to cases of hoax and thus requires those involved in such acts to take responsibility by reimbursing any expense that could have been incurred.

Adv P Swart (DA) raised concerns on the provisions of 20(1)(a)(i) as they empower the Court to imprison a person for life and noted that this would not be in line with the Committee's previous discussions on Clause 9, amongst others.

Mr Louw noted that a reference to imprisonment for life in 20(1)(a)(i) does not necessarily exclude another imprisonment sentence that the Court would wish to impose in the circumstances. He said that what the subclause has done is to stipulate the maximum imprisonment sentence that could be imposed but this does not exclude any minimum imprisonment sentence.

Adv De Lange noted that since this is a jurisdiction clause, it is not enough that only maximum sentence be stated and thus minimum sentences should also be stipulated including a fine as an option. The Committee agreed.

Clause 21: Declaration of forfeiture on conviction
Adv De Lange expressed concern at the manner in which 21(1) had been formulated - there seemed to be issues of legality, constitutionality and duplication. Par (a) was drafted too vaguely and its constitutionality might be challenged, while there was no need for par (b) as its provisions were already covered in par (a).

Adv P Smith (Department of Justice: Drafter) acknowledged the concerns raised by Adv De Lange. He said that the provisions of this Bill were borrowed from the Drug Trafficking Act and therefore the drafters would refine them accordingly.

The Chair asked what would happen if a property is suspected of being instrumental in the commission of a terrorist act but the person in possession of it, could not account for where he/she got it.

Adv Smith said that since par (iii) of 21(1)(a) only relates to properties which were actually involved in the commission of a terrorist act, courts do not easily extend this to include properties allegedly involved in the commission of a terrorist act. That is why it is vital for the courts to be given such powers since, in their absence, the State would be required to prove its involvement before it could be declared for forfeiture.

Adv Swart was of the opinion that courts should be given discretion in these circumstances and thus proposed that the word "must" be changed to "may".

Adv De Lange objected to the proposal and noted that only properties which were used in the commission of a terrorist act should be seized and nothing more. It should be noted that the provisions of this Bill are totally different from those of the Drug Trafficking Act and thus requested the drafters to take that into account when refining these provisions. It is important that the clause should remain obligatory - however it should be linked with an objective test in terms of which the magistrate would be required to use discretion to determine whether it has been used in the perpetration of such crime.

Ms S Camerer (DA) agreed that this test should be built into the clause itself.

Adv Swart also agreed with Adv De Lange noting that without such a test, the word "must" would be problematic.

Clause 22: Interests of third parties
Ms S Camerer (DA) proposed that this clause should also be rewritten in line with the suggestions made in the previous clauses.

Adv De Lange agreed and noted that it should also be clear that the provisions of this clause only apply to those properties which are linked to the crime committed.

Chapter 4: Powers to investigate or prevent terrorist acts
Clause 26: Cordoning off, stop and search of vehicle and person
Adv De Lange noted that while the powers stipulated in this clause are very relevant, it should be made clear that these powers only apply to the cordoned-off area.

Mr J Jeffery (ANC) said that in order to avoid interpretation problems that could arise, it should be made clear in the Bill that 'cordoning off' refers to that word contained in the South African Police Services Act.

Adv De Lange agreed and said that 26(5) should be rewritten so as to make its provisions clear and spell out the powers that it intends to create.

The Chair said that it is important that the drafters should re-look at the provisions of 26(5) to determine whether this subclause is really needed and if so, refine it accordingly.

Clause 27: Investigation powers
Adv Swart noted that he thought that the powers stipulated in this clause would only be exercised by police officials of certain ranks based on their superiority.

Adv De Lange said that to require that these powers be exercised only by police officials of certain rank based on their superiority, would defeat the purpose of this Bill. This clause had once been challenged in the Constitutional Court in the Hyundai case and the court found it to be constitutional/ Hence it is important that one read it together with Clause 29 so as to understand its purpose.

Adv Smith agreed with Adv De Lange and noted that some offences do not necessarily need a police officer to be of a superior rank in order to effectively combat them.

Clause 28: Interdict
Adv De Lange asked why an order to freeze someone's property would be required.

Adv Smith replied that this order would be requested in those cases where it is not clear whether the property in question is the one which was used in the commission of a terrorist act

Adv De Lange requested that the clause should be redrafted as it is not clear. It should also be made clear that the application concerned is an ex parte application and does not relate to civil forfeiture.

Mr Jeffery asked the basis under which such an order be made by the National Director of Public Prosecutions (NDPP) and be granted by the court.

Adv Smith replied that once certain properties are published in the Gazette as properties identified to be terrorist properties or likely to have been involved in terrorist acts then the NDPP would make such an application. The court would grant such an order if it is convinced on the balance of probabilities that the said properties are linked to the terrorist or have been used in the commission of terrorist acts. This clause is based on the international duty that South Africa has under the United Nations to freeze all funds of the terrorist organs to ensure that they do not use them to carry out their terrorist activities. He proposed that this clause should be read in conjunction with Clause 30 of the Bill, in Chapter 5.

Clause 29: Search and seizure of terrorist property
Mr Jeffery proposed that Clauses 28 and 29 be combined into one clause as they both relate to different kinds of search and seizure with the freezing of the property being temporary.

Adv Smith acknowledged that both Clauses 28(2) and 29 relate to cases of search and seizure. While the property would be seized in Clause 29 and only handed back if its owner is not convicted, such property is not taken away from its owner but only frozen so the person could not continue to make use of it in Clause 28.

Adv De Lange could not see the need why powers relating to search and seizure should be included in this Bill. This is tantamount to repetition since such powers are already granted in the National Prosecuting Authority Act. He, however, agreed with Mr Jeffery that these clauses should be combined as they are interrelated. He further proposed that a clause containing all powers granted under this Bill be created. He noted that on the balance of probabilities is not a test but a standard that the court takes into account in determining a case and thus proposed that a test be formulated, which the NDPP would be required satisfy before an order could be granted.

Adv M Masutha (ANC) expressed concern with the use of the phrase "property related to terrorism" in subclause (1).

Adv Swart agreed and proposed the phrase "property referred to in the definition". He suggested that the provisions of Clauses 26, 27, 28 and 29 be combined as they are all interrelated.

Adv De Lange agreed that "property related to terrorism" in Clause 28(1) is not broad enough to include a property and may be subjected to interpretational problems which causes it to be limited to the definition of terrorism in Clause 2 and no more.

Mr Jeffery agreed with Adv Swart that these clauses are interrelated and thus they should be rewritten so that their intention could be more clear.

Adv De Lange was of the view that the powers contained in Clause 27 should be refined to include all those powers contained in Section 29 of the National Prosecuting Authority Act. If that were the case, then the provisions of Clause 29 of the Bill would automatically fall away as they would be included in Clause 27. He proposed that Clause 26 should be removed and reinserted after Clause 29.

Mr Louw acknowledged Adv De Lange's proposal but pointed out that Clause 27 only relates to two things, specific investigation and property, while Chapter 5 of the NPA Act goes further than that.

The Chair said that the drafters should be given the opportunity to redraft these provisions. He noted that the members acknowledged that there is still much work to be done on this Bill.

Chapter 5: Resolutions of United Nations Security Council
Clause 30: Notification by the President in respect of persons or entities identified by the United Nations Security Council
Adv De Lange proposed that the words "-in-Cabinet" be removed in relation to the President.

The Committee agreed.

Clause 31: Parliamentary supervision
Adv De Lange proposed that this clause be rewritten and the word "recommendation" in 31(2) be deleted. Section 231 of the Constitution requires Parliament to approve by resolution all international agreements entered into on behalf of the Republic.

Adv Swart was of the opinion that the word "approves" implies that Parliament has the power to accept or reject that proclamation. The correct term would be that the proclamation "be tabled for notice to the Parliament".

Adv Smith noted that Chapter 7 of the UN Charter stipulates that all nations that have signed it, are bound by all decisions taken under it.

Mr Jeffery objected to that and noted that while Parliament acknowledges the UN Security Council, however its decisions do not automatically bind the Republic unless Parliament approves.

The Chair agreed that approval by Parliament is vital in these instances. He noted that it has been said repeatedly that no person should be arrested on the basis of the UN Security Council decision. Based on that, Parliament should also pronounce on this matter since it would not be proper to arrest a person purely based on an international instrument.

Adv Masutha noted that the Joint Committee on Delegated Legislation, of which he is co-chair, has came up with proposals on how to deal with delegated instruments. These proposals would be helpful since there is no regulation at the moment dealing with the tabling and approval of delegated instruments. This seems to be left to the discretion of Parliament.

Adv De Lange proposed that since Parliament has a duty to approve these UN Security Council resolutions under Section 231 of the Constitution then the phrase "for a decision" should be inserted after "as the case may be," in 31(1). If the drafters rewrite the provisions of 31(1) as proposed then there would be no need of 32(2) which should be deleted.

The Chair noted that in the afternoon, the Committees would deal with those Acts that would be amended or repealed by this Bill.

Afternoon session
Proposed Amendments to Prevention of Organised Crimes Act
Mr P Smit (National Treasury drafter) proposed that a new phrase be inserted in the Long Title of the Act and that the scope of the Act should also be extended in order to adequately cover the objectives of the Act.

Proposed amendment to s38
The current s38 of the Act deals with the preservation of property, which is an instrumentality of an offence referred to in Schedule 1 of the Act, or is the proceeds of unlawful activities. Mr Smit proposed that the sections should be broadened by making it applicable to property associated with terrorist activities.

Proposed amendment to s50
Section 50 deals with the making of forfeiture orders by the High Court. Mr Smit proposed that the forfeiture orders should also cover property associated with terrorist activities.

Proposed amendment to s51
The current section deals with notifying persons having interests in or control over property that there are reasonable grounds to believe that such property is an instrumentality of an offence referred to in Schedule 1. The proposed amendment seeks to enable the National Director to apply for an order notifying a person even in cases where the property is not an instrumentality but it is only associated with terrorist activities.

Proposed amendment to section 52
The current section deals with exclusion of interests in property and only applies to intrumentalities. The proposed amendment seeks to make it applicable to property associated with terrorist activities.

Discussion
Adv de Lange (ANC) asked if there are any differences in the definitions of property as found in the Anti-Terrorism Bill and the Prevention of Organised Crimes Act. He also asked why the drafters have used the word 'assets' in the proposed amendment to the Long Title and the word 'property' in the Act.

Mr Smit said that the definitions are similar. On the use of word 'assets', the drafters felt that the sensible thing to do was to use 'assets' as the word already appears in the Long Title.

Adv de Lange expressed concern that the Act would allow for the seizure of property on the basis that it is owned or in possession of a person involved in criminal activities. He opined that this might be unconstitutional. He suggested that only property involved in the criminal activities should be forfeited. He stressed the importance of the link between the commission of the crime and the property. He also asked the presenter to clarify what drafters envisage when they talk of property associated with terrorist activities.

Mr Smit said that property associated with terrorist activities covers more than instrumentalities. This would include property enabling a person to carry out terrorist activities. This would also cover the person's support structure or source of his resources.

Adv de Lange said that Mr Smit's delineation of property associated with terrorist activities was not sufficient mainly because it does not show the link between the commission of the crime and the property. It would be difficult to justify the forfeiture of such property if the link is not established.

The Chair gave an example of a person who has money in a Standard Bank account and also in an ABSA bank account. Such a person might use the money in one account to finance terrorist activities. Should this happen, it should be possible to forfeit money in both accounts since one would not know if the person would have used the money in the other account to finance terrorist activities.

Adv de Lange said that it is important to note that the money in one account is not tainted and hence there is no justification for taking it. The link would still be missing. At best one could apply for a freezing of the funds.

Ms S Camerer (DA) said that freezing might not be practical given the fact that money could be transferred to different accounts in no time.

Adv de Lange reminded members of the country's international obligation to suppress terrorism. He suggested that the first thing that should be done is to create an offence. Secondly, one should say that if the person is found guilty, the property would be forfeited. One should also give the power to freeze funds where it is suspected that such funds might be used to finance terrorist activities. However one should be very careful when dealing with forfeiture. He again stressed the importance of the link between the property and the crime. With regard to the freezing of assets, one might go as wide as possible and leave it to the courts to decide if there is any basis for the freezing of such assets.

Adv M Masutha (ANC) also said that one should specify the property that might be forfeited. He made specific reference to the September 11 attacks in America. One should say if it is critical that the person who has committed or intends to commit a crime must own the property. One should address the vulnerability of property to be used in terrorist attacks.

Adv de Lange said that the definition of property associated with terrorist activities should be removed. He also noted that the Bill says nothing about its commencement date and suggested that the commencement date should be 01 October 2003.

Financial Intelligence Centre Act 38 of 2001
Adv de Lange noted that the main issue of the Act is to report all transactions above a certain limit to the Financial Intelligence Centre. Institutions that are obliged to report such transactions should pay special attention to unusual and suspicious transactions. It is difficult to say that they should report transactions related to terrorist activities since it is difficult to prove the link. He proposed that there should be a duty to report complex, unusually large transactions and unusual patterns of transactions. Such a duty should exist whether or not the transactions are related to terrorism.

Ms Camerer said that reference to the fact that the transaction are or are not related to terrorism might have a limiting effect. Institutions may not report some transactions if they are satisfied that there is no link with terrorism.

Adv de Lange said that it is necessary to indicate that transactions should be reported whether or not they are linked to terrorism so as to comply with international obligations. This would also discourage institutions from making their own investigations as they would therefore just report the transactions.

Mr P Smit said that in terms of the current Act the obligation is to report transactions with no apparent business purpose. He agreed that one should place a duty to report whether or not the transactions are related to terrorism.

Extradition Act 67 of 1962
Proposed amendments to s22
Mr P Van Wyk proposed that section 22(2) of the current Act should be amended to give protection to certain people. He said that this proposed amendment was taken from conventions.

Mr Van Wyk also proposed the amendment of s22 (3) so as to deem certain offences to be included in extradition treaties.

Advocate de Lange asked this deeming provision is necessary. He went on to say that the problem is that the treaties may not say anything about the crimes and then one would have to check SA law whenever confronted with a problem. Mr Van Wyk promised to check if this provision is necessary

Mr Van Wyk indicated that he was not so sure if subsections 4 and 5 were still necessary and said that he would check the subsections and tell members at some later stage if he still wants them.

Criminal Procedure Act, No 51 of 1977
Adv de Lange said that the courts have found that in bail applications there is no onus. What is intended now is that if a person commits a Schedule 5 offence, the onus should be on him to show why he should be released. If the crime is under Schedule 6, the person bears the onus and should also show that exceptional circumstances exist warranting his release.

He suggested that members agree with the principle. He suggested that they deal with the classification of different crimes under the Schedules at some other time.

Criminal Law Amendment Act, No 105 of 1997
Adv de Lange suggested that members accept the principle of the proposed amendments. He suggested that they deal with the classification of different crimes under the Schedules at some other time.

The meeting was adjourned.

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