Question NW228 to the Minister of Justice and Correctional Services
07 March 2023 - NW228
Whitfield, Mr AG to ask the Minister of Justice and Correctional Services
In light of the recent and constant spate of intentional acts of sabotage against critical Eskom infrastructure, which as a consequence further exacerbates Eskom’s inability to adequately provide the Republic with a consistent supply of electricity, will his department and/or the National Prosecuting Authority be charging any person found to be sabotaging critical infrastructure with acts of terrorism, in terms of the new extended definition of terrorist activity, as the Protection of Constitutional Democracy Against Terrorist and Related Activities Amendment Bill has been passed and signed into law by the President?
Reply:
The National Prosecuting Authority (NPA) needs to stress that any decision made to charge in respect of any offence, including terrorism, will be based on the evidence presented to the Prosecution by the South African Police Service (SAPS) and/or the Directorate for Priority Crime Investigation (DPCI). The NPA cannot pre-empt any decision since it is obliged to consider the evidence before a decision to prosecute is made.
The Protection of Constitutional Democracy Against Terrorist and Related Activities Amendment Act 23 of 2022 (to be referred to as “POCDATARA Amendment Act” (hereinafter referred to POCDATARA) was proclaimed under Government Gazette No. 47820 and came into operation on 04 January 2023.
Section 1(r) of the POCDATARA provides for the amendment/substitution of the definition of terrorist activity.
In so far as critical/essential infrastructure is concerned, we look at only six (6) subsections within section 1(a) of POCDATARA that informs the definition of terrorist activity with further reference to sections 2,3 and 17(2), although the definition provides for nine (9 subsections under Subsection 1(a).
Section 1(a) describes what must be the impact or potential impact of the unlawful actions which are described as terrorist activities.
Therefore, as a starting point, to be described as terrorist activities, the actions must have the potential of causing harm.
Section 1 (b) and (c) of POCDATARA prescribes what the prosecution must prove as the intended consequence or nature/context of the unlawful action(s) to be classified as terrorist activity.
While it is noted that most of the offences of damage to essential infrastructure which are in contravention of Section 3 of the Criminal Matters Amendment Act 18 of 2015, are consistent with the description of terrorist activities as defined in section 1(a) of POCDATARA, it is respectfully submitted that the definition of terrorist activities must be read in conjunction with section 1(b) and (c) of the same Act, which describes the intention of the said unlawful acts.
The facts presented in the case docket must fall squarely within the definition of terrorist activities as is set out in para 8 supra.
Should the facts not prove terrorist activities as per the definition and what is required in section 1(b) and (c), then the following charges would be preferred:
- Contravention of section 3 of the Criminal Matters Amendment Act 18 of 2015, read with the Criminal Law Amendment Act 105 of 1997;
- Theft, read with the Criminal Law Amendment Act 105 of 1997;
- Contravention of section 36 and 37 of the General Law Amendment Act 62 of 1955 read with the Criminal Law Amendment Act 105 of 1977; and
- Malicious damage to property.
The National Prosecuting Authority, Organised Crime Component utilises the Prosecutor Guided Investigations (PGI) methodology (in both projects and non-projects cases) and will continue to do so, so as to timeously identify the charges and monitor the cases.
It is therefore respectfully submitted that where the evidence in an Essential Infrastructure offence proves the elements of terrorist activity, the charges under POCDATARA must be preferred and prosecuted, subject to granting of written authorisation by the National Director of Public Prosecutions as prescribed in Section 14 of the POCDATARA.