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WHEREAS the Constitution of the Republic of South Africa, 1996, provides in section 198(b) that the resolve to live in peace and harmony precludes any South African citizen from participating in armed conflict, nationally or internationally, except as provided for in the Constitution or national legislation; and

WHEREAS it is necessary to prohibit and criminalize mercenary activity in order to give effect to the values in our Constitution and our international obligations; and

WHEREAS it is further necessary, in order to give effect to the above provision of the Constitution of the Republic of South Africa, 1996, and our international obligations, as well as in the interest of promoting and protecting human rights and fundamental freedoms, universally, to prohibit and regulate the enlistment of South African citizens or permanent residents in foreign armed forces and to prohibit and regulate the rendering or providing of military and related assistance or services and security services, including humanitarian assistance, by South African juristic persons, citizens, persons permanently resident in the Republic and in certain circumstances foreign citizens;

BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as follows: –

(1) In this Act, unless the context indicates otherwise –

‘armed conflict’ includes any armed conflict –

1. in a regulated country or area, proclaimed as such in terms of section 6 of this Act;
2. in any other country or area which has not been so proclaimed, between-

1. the armed forces of a foreign state and dissident or rebel armed forces or other armed groups;
2. the armed forces of foreign states;
3. armed groups in a foreign state;
4. armed forces of any occupying power and dissident or rebel armed forces or any other armed group; or
5. any other combination of the entities referred to in subparagraphs (i) to (iv); or

‘assistance or service’ includes-

1. any form of military or military-related assistance, service or activity;
2. any form of assistance, service or activity by means of –

‘Committee’ means the National Conventional Arms Control Committee, established in terms of section 2 of the National Conventional Arms Control Act, 2002 (Act No. 41 of 2002);

‘intergovernmental organisation’ means an international organisation established by the governments of states;

‘international organisation’ means an international organisation of states, and includes an intergovernmental organisation;

‘prescribed’ means prescribed by regulation in terms of section 12;

‘register’ means the register referred to in section 8;

‘security services’ means one or more of the following services or activities–

1. protection or safeguarding of an individual, personnel or property in any manner;
2. giving advice on the protection or safeguarding of individuals or property;
3. giving advice on the use of security equipment;
4. providing a reactive or response service in connection with the safeguarding of persons or property in any manner;
5. providing security training or instruction to a security service provider or prospective security service provider;
6. installing, servicing or repairing security equipment;
7. monitoring signals or transmissions from security equipment;
8. making a person or service of a person available, directly or indirectly, for the rendering of any service referred to in (a) to (f); or
9. managing, controlling or supervising the rendering of any of the services referred to in paragraphs (a) to (h); and

‘this Act’ includes the regulations made in terms of section 12.

(2) Notwithstanding any provision of this Act or any other law, no act shall for any reason or purpose be considered as assistance or service, as defined in subsection (1), if such act is –

(a) committed during a struggle waged by peoples in the exercise or furtherance of their legitimate right to –

(i) national liberation;

(ii) self-determination;

(iii) independence against colonialism; or

(b) in accordance with the principles of international law, especially international humanitarian law, including the purposes and principles of the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States.

No person may within the Republic or elsewhere, directly or indirectly-

1. participate as a combatant for private gain in an armed conflict;
2. recruit, use, train, support or finance a combatant for private gain in an armed conflict;
3. participate in any manner in the initiation, causing or furthering of –

(i) an armed conflict; or

(ii) a coup, uprising or rebellion against any government; or

4. perform any act or action aimed at overthrowing a government or undermining the constitutional order, sovereignty or territorial integrity of a state.

1. render or provide any assistance or service to a party to an armed conflict, unless he, she or it has been granted authorisation in terms of section 7(2) to render or provide such assistance or service or such assistance or service is rendered or provided in accordance with an agreement or arrangement allowed or approved under an authorisation granted in terms of section 7(2);
2. recruit, use, train, support or finance any person to render or provide assistance or service to a party to an armed conflict, unless he, she or it has been granted authorisation in terms of section 7(2) to recruit, use, train, support or finance such person or such person is recruited, used, trained, supported or financed in accordance with an agreement or arrangement allowed or approved under an authorisation granted in terms of section 7(2); or
3. perform any other action that has the result of furthering the military interests of a party to an armed conflict, unless he, she or it has been granted authorisation in terms of section 7(2) to perform such action.

(1) No South African citizen or permanent resident may enlist with any foreign armed force, including an armed force of any state, unless he or she has been granted authorisation to enlist in terms of section 7(2).

(2) Any authorisation granted in terms of section 7(2), as contemplated in subsection (1), shall automatically lapse if the person to whom it has been granted, takes part in an armed conflict as a member of such foreign armed force.

(1) No person may render or provide humanitarian assistance in an armed conflict, unless he, she or it has been granted authorisation to render or provide such assistance in terms of section 7(2).

(2) The Chairperson of the Committee, after consultation with one other member of the Committee, may grant an interim authorisation, to provide the humanitarian assistance in respect of which an application is made in terms of section 7(2), as contemplated in subsection (1), on such conditions as he or she may deem fit, in order to ensure that humanitarian aid can be rendered or provided, without delay, to relieve the plight of civilians in an area of armed conflict.

(3) Any application to render humanitarian assistance must be finalized by the Committee within 30 days after receipt thereof or at the first meeting of the Committee, following upon the expiry of such period.

(4) Any interim authorisation referred to in subsection (2) shall remain valid, until the application is decided by the Committee.

(1) The Committee shall inform Cabinet, whenever it is of the opinion that an armed conflict, as defined in paragraphs (b) and (c) of the definition of "armed conflict" in section 1, exists or is imminent in any country or area in a country and that such country or area should be proclaimed to be a regulated country or area.

(2) The President, as Head of the National Executive, may, by Proclamation in the Gazette, proclaim a country or area in a country in respect of which the Committee has informed Cabinet, as contemplated in subsection (1), as a regulated country or area.

(1) Any person who wishes to obtain the authorisation referred to in sections 3(a) to (d), 4(1) and 5(1) shall submit to the Committee an application for authorisation in the prescribed form and manner.

(2) The Committee must consider any application for authorisation submitted in terms of subsection (1), and, subject to section 9, may-

(a) refuse the application;

(3) No authorisation granted in terms of this section shall be transferable.

(4) The prescribed fees in respect of an application for authorisation, as contemplated in subsection (1), must be paid, before the Committee makes its decision known.

1. The Committee shall maintain a register of any –

1. authorisation issued by the Committee, in terms of section 7(2);
2. proclamation made by the President, in terms of section 6; and
3. any exemption granted by the President, in terms of section 13(1).

(2) The Committee must each quarter submit reports to the National Executive and Parliament with regard to the register.

An authorisation in terms of section 7(2), or an exemption in terms of section 13, may not be made or granted, as the case may be, if it would or could –

(1) Any person who contravenes section 2(a) to (d), 3(a) to (d), 4(1) or 5(1), or fails to comply with a condition determined in respect of an application in terms of section 7(2)(b) or section 13 shall be guilty of an offence, and be liable upon conviction, in the case of a contravention of the provisions of section 4(1), 5(1), 7(2)(b) or 13 to a fine or to imprisonment, or to both such fine and such imprisonment.

(a) threatens;

to commit an offence in terms of this Act, is guilty of an offence.

(3) Any person who is convicted of an offence referred to in subsection (2) is liable to the punishment laid down for the offence which that person threatened, attempted or conspired to commit or aided, abetted, induced, incited, instigated, instructed, commanded, counselled, solicited, encouraged or procured another person to commit.

(4) A person referred to in section 15(2) who fails to apply for the authorisation within the period referred to in that subsection, and remains so enlisted, shall be guilty of an offence and liable, upon conviction, to a fine or to imprisonment or to both such fine and such imprisonment.

(5) The court convicting any person of an offence under this Act may declare any armament, weapon, vehicle, uniform, equipment or other property or object in respect of which the offence was committed or which was used for, in or in connection with the commission of the offence, to be forfeited to the State.

[a15y1998s9]11. Extra-territorial jurisdiction

(1) Even if the act alleged to constitute an offence under this Act occurred outside the Republic, a court of the Republic shall, regardless of whether or not the act constitutes an offence at the place of its commission, have jurisdiction in respect of that offence if the person to be charged-

(2) Any act alleged to constitute an offence under this Act and which is committed outside the Republic by a person, other than a person contemplated in subsection (1), shall, regardless of whether or not the act constitutes an offence or not at the place of its commission, be deemed to have been committed also in the Republic if that person is -

(3) Any offence committed in a country outside the Republic as contemplated in subsection (1) or (2), is, for the purpose of determining the jurisdiction of a court to try the offence, deemed to have been committed at-

(4) Where a person is charged with conspiracy or incitement to commit an offence or as an accessory after the offence, the offence is deemed to have been committed not only at the place where the act was committed, but also at every place where the conspirator, inciter or accessory acted or, in case of an omission, should have acted.

(1) The President as Head of the National Executive, may make regulations relating to-

(2) A regulation may prescribe a penalty of a fine or of imprisonment for a period not exceeding five years, or both a fine and such imprisonment, for any contravention thereof or any failure to comply therewith.

The President as Head of the National Executive may, subject to section 9, upon request in the prescribed form and manner, exempt any international, intergovernmental or humanitarian aid organisation from the provisions of section 5 of this Act, if such exemption would facilitate the rendering of humanitarian aid, without delay, in respect of a particular event or situation, in order to relieve the plight of civilians in an armed conflict, and subject to such conditions as he or she may determine.

2. the addition to Part 2 of Schedule 2, of the following item:

(2) The Regulation of Foreign Military Assistance Act, 1998 (Act No. 15 of 1998), is hereby repealed.

(1) Any authorisation or approval granted in terms of the Act repealed by section 14(2) shall remain in force and effect until withdrawn or as amended or until expiry of the term for which it was granted.

(2) Any citizen of the Republic or person ordinarily resident in the Republic who, at the time of the commencement of this Act, has already been enlisted in an armed force as prohibited in section 4(1), shall within six months of the commencement of this Act, apply for the authorisation required by section 4(1) of this Act.

(3) All criminal proceedings which immediately prior to the commencement of this Act were instituted in terms of the provisions of the Regulation of Foreign Military Assistance Act, 1998 (Act No. 15 of 1998), and which proceedings have not been concluded before the commencement of this Act, shall be continued and concluded, in all respects as if this Act had not been passed.

(4) An investigation, prosecution or any other legal proceeding, in respect of conduct which would have constituted an offence under the Regulation of Foreign Military Assistance Act, 1998, and which occurred after the commencement of that Act but before the commencement of this Act, may be conducted, instituted and continued as if this Act had not been passed.

(5) Notwithstanding the repeal or amendment of any provision of any law by this Act, such provision shall, for the purpose of the disposal of any criminal proceedings, investigation, prosecution or other legal proceeding contemplated in subsection (3) or (4), remain in force as if such provision had not been repealed or amended.

This Act is called the Prohibition of Mercenary Activity and Prohibition and Regulation of Certain Activities in an Area of Armed Conflict Act, 2005, and shall come into operation on a date determined by the President by proclamation in the Gazette.

1. Although the Foreign Military Assistance Act, 1998 (Act No. 15 of 1998), had been in operation for a considerable time, very few prosecutions have been instituted in terms of the Act. In cases where a conviction followed, it mostly followed upon a plea bargain between the prosecution and the accused.
2. Recent events such as the arrest of a number of South African citizens, allegedly involved in a planned coup d'état aimed at the Government of the Equatorial Guinea, both in that country and in Zimbabwe testify to mercenary activities being undertaken from within the borders of the Republic. The recruitment of South Africans by so-called private military companies from outside the Republic, to provide military and security services in areas of armed conflict - such as Iraq - is also continuing.
3. It is evident from the small number of prosecutions and convictions under the Act that there are some deficiencies in the Act, which need to be addressed urgently in order to ensure that the Republic effectively combats mercenary activities and to provide for the regulation of certain forms of assistance in armed conflicts.
4. The Bill proposes to address the following:

1. To redefine and improve certain definitions and expressions such as "armed conflict", and "assistance or service".
2. To insert a definition of "security services".
3. To exclude legitimate armed struggles, including struggles waged for national liberation, self-determination, independence against colonialism, or resistance against occupation, aggression or domination by alien or foreign forces, in accordance with the international humanitarian law, from assistance or service for which authorisation is required.
4. The prohibition of mercenary activity is purified by adding to that activity elements of the existing definition of "foreign military assistance". These elements, in effect, constitute classical mercenary activities, such as a coup d'état.
5. To regulate the enlistment of South Africans and permanent residents in foreign armed forces, humanitarian assistance and provision of certain forms of assistance, such as military and related services and security services. Authorisation to enlist in a foreign armed force shall lapse once the person to whom it has been granted, participates in an armed conflict.
6. Of most importance is the power given to the President, as head of the National Executive, to proclaim a country or area as a regulated country or area.
7. Extraterritorial jurisdiction is provided for in respect of persons who are citizens or permanent residents of the Republic and also where a person has committed an offence in terms of the Act outside the borders of the Republic, or from outside the borders of the Republic.
8. That the President may make regulations required in terms of the Act.
9. That authority may be granted under limited circumstances on an urgent basis to provide aid in an emergency to relieve the plight of civilians in an armed conflict. Applications for such authorisations must be considered and decided without delay, and within a specified time limit.
10. To provide for penalties which are aligned with the seriousness of the offence.
11. In terms of the transitional provisions of the Bill, South Africans involved in armed conflict, as a result of their enlistment in foreign armed forces, need to obtain approval for such enlistment within six months, from the commencement of the Act. If such person fails to apply for such authorisation he or she shall commit an offence by remaining enlisted in a foreign armed force.
5. It is believed that the above amendments will vastly improve the regulation of the participation of South Africans in armed conflict, the combating of mercenary activity, the regulation of enlistment in foreign armed forces and the regulation of assistance to countries in an armed conflict.
6. All Departments represented at the International Relations, Peace and Security Cluster were consulted. These include Departments with a direct interest in the Bill, such as Safety and Security, Intelligence, Justice and Constitutional Development and Foreign Affairs.