Becker’s Legislative Proposal to Amend Protection of Constitutional Democracy Against Terrorist & Related Activities Act & Self’s Legislative Proposal for Expunction of Criminal Records from Apartheid Laws Act

Meeting report

Mr P Gerber (ANC) was elected to chair the meeting.

Protection of Constitutional Democracy against Terrorist and Related Activities
Mr H Bekker, MP,  presented his legislative proposal, which aimed to amend the Protection of Constitutional Democracy against Terrorist and Related Activities Act 33 of 2004. He would like this Act also to cover theft of copper cables, which was causing considerable economic loss, in the definition section of the Act, and to provide punitive measures for those directly or indirectly benefiting from sale of copper cable, including scrap metal dealers.

He noted that the existing Act referred to “a system use for, or by, an essential public utility or transport provider”, which he believed would already encompass the systems of Eskom, and the small amendments he was proposing would extend the Act usefully.  Mr Bekker felt the word sabotage was appropriate as theft of these cables amounted to destruction of infrastructure. He wished to extend the definition of terrorist activity as a deterrent to scrap metal dealers who were benefiting from the sale of copper, and would also like to include in the intention of terrorist activity the financial loss suffered when copper was stolen.

He noted that Eskom had suffered a loss of R25.2 million as a result of 1 596 incidents of cable theft during 2007, while Telkom suffered a direct loss of R203 million in the same period. These crimes should no  longer be treated as common theft. The existing fines and sentences were not an adequate deterrent. The sale of cable was done primarily for resale and financial gain, but the implications for the economy were huge. The police investigators and industries were largely unable to control this, although Mr Bekker was grateful to the South African Police Services (SAPS) for sponsoring the Second Hand Goods Bill, which was a positive move in the right direction. However, by bringing such theft into the context of sabotage, much harsher penalties could apply, which he believed would be a great deterrent, and would put a stop to the current market.

He therefore noted the intention of the proposal to amend the definition of terrorist activity in section 1 of the Act, to make provision for inclusion of delivery of electricity services as an essential service; expand the intention of committing terrorist activity to include the result of financial loss; and to render it possible to commit terrorist activity purely for financial gain. Section 3 of the same Act would then also be amended to provide that those directly or indirectly benefiting from the theft (such as scrap metal dealers) would be liable also.

Discussion
Ms S Rajbally (MF) had experienced an entire area at her home being plunged into darkness because of cable theft, which she agreed was rife. There seemed to be a syndicate, because once the cable was cut and the area was dark, other thefts would be committed. She agreed that stricter measures were required.

Ms M Maine (ANC) supported the proposal as she agreed cable theft was becoming a national problem. In her small town in a farming area she had witnessed farmers chasing a van and trailer buying metal as farm workers were even stealing from their workplace.

Mr Bert van der Walt, Director, SAPS, gave input from the South African Police Service. He said it was important to keep in mind that any prosecution under the Constitutional Democracy against Terrorist and Related Activities Act (the Act) was dependant on the definition of terrorist activity, and the nature of conduct, the motive and the intention were all elements needing to be proved. SAPS was of the opinion that the Act already in fact covered theft of electricity service components. The proposed amendment of the definition of terrorist activity only went to the intention and motive aspects, and did not, in his view, add anything to the structure of the definition.

Mr van der Walt noted that SAPS, together with entities such as Telkom, Spoornet and Eskom was in the process of establishing teams to concentrate on cable theft, copper theft, all non ferrous metal theft, with training for the investigators to make them aware of the various pieces of legislation under common law, and also to assist prosecutors with prosecuting these offences to the fullest capacity. He noted that the Second Hand Goods Bill was currently before the NCOP, and this already provided substantially increased penalties, up to ten years imprisonment, for activities related to cable theft. A prosecution under this Bill had the advantage that motive would not need to be proved. Already, theft and malicious injury to property offences could be prosecuted under the common law, where the jurisdiction of the Court would determine the sentence. He was concerned that the proposal may result in the re-enactment of the offence of sabotage, which the South African Law Reform Commission (SALRC) had suggested should be repealed. In addition the United Nations wished to limit prosecution under terrorism legislation to avoid watering down this type of offence.

Discussion
The Acting Chairperson asked whether it was still a requirement of the Second Hand Goods Act of 1955, that a second hand dealer buying non-ferrous metal had to keep it for seven days.

Mr van der Walt clarified that the present legislation still made provision for the seven days requirement and also put more stringent requirements on the dealers.

The Acting Chairperson said he lived in a farming community where there was awareness of non-ferrous metal values; he had had one side of the fencing on his farm stolen. Therefore the problem was not limited to copper. He asked how the Second Hand Goods legislation would address the issues.

Mr van der Walt responded that SAPS was not only revising the legislation but also the approach to the policing or law enforcement with regard to the second hand goods. In terms of the present legislation, scrap metal dealers who sold ferrous metals were excluded from the operation of the Act and could operate without keeping registers. Under the proposed new Bill, all scrap metal dealers would be covered and all would have to keep records. Furthermore there was an obligation under the new Bill to make certain that the property they bought was not stolen.

Mr Gerber asked how they would do that.

Mr van der Walt responded that there were certain tests that could be applied. If the dealers did not comply they could be given serious prison sentences. In addition, the Bill made provision for extension of the policing powers to other agencies such as municipal police, Eskom, Telkom, and Spoornet. The prosecution of offenders would be possible on a much wider front than at present.

He noted that the import and export of metals was also a problem. The International Trade Administration Commission inspectors could also get policing powers in the Bill, so they would be able to conduct the war on metal-theft criminals on a much wider front and with more tools than under the present situation.

Mr Bekker asked what was being done both by the legislature and policy to curtail this scourge. He felt that the police services had failed the people of South Africa. In a matter of two years this criminal activity had increased by 70%. The Second Hand Goods Bill was a move in the right direction but it was not the solution at all. He said that Mr van der Walt’s only valid argument had been in relation to the point on sabotage, and he asked if the sabotage elements were to be removed from the legislation.
 
Mr van der Walt clarified that the Law Commission report was made with regard to the so-called Terrorism Bill, and referred to the offence of sabotage that had existed under the Internal Security Act. Its recommendation was that sabotage not form part of the Terrorism legislation.

Mr Bekker asked if that section on sabotage had to be scrapped.

Mr van der Walt confirmed that this was so; it should not appear in the Terrorism legislation.

Mr Bekker added that if that was being done surely an alternative type of legislation must be prepared before simply removing the offence of sabotage. He pointed out that some time could elapse and he was worried what was being done in the interim. He was making a proposal to incorporate an offence into existing legislation. He said he would not have a problem with removing sabotage, provided that alternative legislation was in place by that time. He believed that his proposal could give teeth before the end of the year, and something must be done to send a very clear message to scrap metal dealers.

Dr Lirette Louw, Consultant drafter, Department of Justice,  clarified that the SALRC report had been given before the current Terrorism Bill was drafted. Sabotage did not currently feature in the Terrorism Act. The understanding of the Department of Justice was that it was better to deal such matters in the Second Hand Goods Bill and maybe could consider strengthening sentencing.

Ms Rajbally said this was a major market and had to be controlled. Scrap metal dealers were buying stolen goods, and should be dealt with.

The Acting Chairperson added that a further problem was that thieves were not only stealing the cables, but also stealing the springs, so trains could actually be derailed.

Selfe legislative proposal to enact an Expunction (sic) of Criminal Records from Apartheid Laws Act
Mr J Selfe (DA) said that the aim of the proposal was to enact the Expunction (sic)  of Criminal Records from Apartheid Laws Act. This sought to expunge the criminal records of South Africans who were convicted of offences under laws of the Apartheid Regime, such as the Immorality Act. Whilst these Apartheid Laws were no longer recognised as laws under the new democratic dispensation, the criminal records emanating from convictions under those laws were still applicable, and could be taken into account – for instance when  individuals applied for employment or for visas to other countries. It was therefore necessary to have those convictions expunged.

The Department of Justice had informed him that the only way criminal convictions could be expunged would be through Presidential Pardon, which was a long and complicated procedure. It was also humiliating and wrong for people to have to go through that procedure when their conduct should never have been regarded as an offence in the first place.

The proposal therefore sought to expunge all the records of offences that would not have been offences in an open and democratic society based on human dignity, equality and freedom. There were many acts, laws, ordinances, regulations and decrees at all levels of government in the old South Africa and the TBVC States, but some had been listed.  It was not always possible to link the offences directly to a specific piece of apartheid legislation. Some people had their South African citizenship removed by virtue of the status of the Transkei, were not able to carry South African passports and found themselves guilty of immigration offences

The proposal sought to create a simple administrative Act, and to provide that a person falling into one of the categories could apply in a prescribed way to the Department of Justice to have the record expunged. It envisaged the creation of a Criminal Records Board, noted how it should be set up and who may take up office on the Board. Members of that Board would include a Judge, the Director or Deputy Director of Public Prosecutions, a member of the South African Police Service, a member of the South African Human Rights Commission and three persons not in the full time employ of the State.

Mr Selfe noted that subsequent to the introduction of his proposal, the Minister of Justice and Constitutional Development introduced a similar measure in the Criminal Procedure Amendment Bill 42 of 2008. Clause 3 of that bill sought to expunge certain convictions under what was described as “old order” legislation. He did not feel that this went far enough. This Bill specified a list of laws, and anyone who was convicted under those laws would automatically have their records expunged. The Bill also created the opportunity for persons to apply in respect of other legislation not specified, but had limited this to  ‘any old order legislation other than those referred to in subsection (1), which was enacted either in the Republic or in any Homeland which creates offences which were based on race or which created offences with a view to promoting the policy of Apartheid which would not be considered to be offences in an open and democratic society based on human dignity, equality and freedom.’

Mr Selfe pointed out that there were many similarities. However, he had two main concerns. Firstly, this Bill was introduced into Parliament by the Minister of Justice and Constitutional Development and may not be processed at all, or may be processed in a form that did not meet the exact objectives of Mr Selfe’s proposal. Secondly, he was concerned that the Bill introduced into Parliament may not cover offences enacted by subordinate legislators such as City Councils, nor was it clear whether the TBVC States were included in the ambit of what the bill described as “Homelands”, nor did it seem to cover the unintended consequences such as the offence of leaving the Republic illegally, because that was not specifically covered in “old order” legislation.

Mr Selfe intended to engage with the Portfolio Committee on Justice to ensure that those concerns were taken into account when that Bill was considered. If it was passed in a form that satisfactorily catered for all the eventualities he had mentioned, then he would be prepared to withdraw this legislative proposal. However, until that stage was reached, he asked that his proposal must remain on the agenda of this Committee.

Dr Louw commented that the two Committees could interact. The Chairperson of the Justice Portfolio Committee had mentioned that it would be trying to process their Bill in September. 

Mr Bekker agreed that the criminal records referred to must be expunged, whether through Mr Selfe’s proposal or through the Bill from the Department of Justice. He asked for assurance that the Department’s Bill would incorporate aspects from Mr Selfe’s proposal. Mr Selfe had made out a convincing argument for the expungement.

Ms Rajbally supported the proposal but cautioned on how it was handled. She said that consideration should be given to the intention of the person committing the crime, the circumstances in which it was committed, and considerations of any victim of the crime towards pardon.

Mr Bekker reminded members that “our beloved Madiba” was regarded as a terrorist in the United States until the Senate and the House of Representatives passed a proposal that his name be honoured. He said that if this happened in the United States, all the more reason why it should happen in South Africa.

The Acting Chairperson asked if there was any indication of the number of people involved.

Mr Selfe responded that he had researched a number of databases and court records and it would probably affect at least hundreds of thousands of people.

The Acting Chairperson thanked Mr Selfe for his proposal and confirmed that it would be kept on the Committee’s agenda until it became clearer what the position was with the Bill before the Portfolio Committee on Justice.

He further thanked Mr Bekker for his proposal. Both proposals would be discussed in the following week.

The meeting was adjourned.