BILL

To give effect within the Republic to the relevant international instruments relating to terrorism; to provide for offences relating to terrorist acts; and for measures designed to combat terrorism; and to provide for matters connected therewith.

PREAMBLE

WHEREAS there is a world-wide occurrence of acts of terrorism in all its forms and manifestations;

AND WHEREAS terrorism is an international problem which can only be eradicated with the full and committed cooperation of all member states of the United Nations and the African Union;

AND WHEREAS the member states of the United Nations have solemnly reaffirmed their unequivocal condemnation of all acts, methods and practices of terrorism as criminal and unjustifiable, wherever and by whomever committed;

AND WHEREAS terrorist acts are under any circumstances unjustifiable, no matter what considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature may be invoked to justify them;

AND WHEREAS terrorism is condemned in a number of international instruments which place an obligation on States to adopt legislation to give effect to those instruments;

AND WHEREAS the Republic supports the efforts of the international and regional communities to eliminate terrorism;

AND WHEREAS the Republic recognises its obligation to prevent its territory becoming a stage for the planning, organisation or execution of terrorist acts and its obligation to prevent terrorist elements from infiltrating or taking up residence on its soil, or being received, harboured, trained, or funded, or offered any kind of help or facilities;

AND WHEREAS terrorism presents a serious threat to the security of the Republic and the safety of the public;

AND WHEREAS the United Nations Security Council has adopted resolutions binding on member states of the United Nations, to combat terrorism and in particular terrorist bombings and the financing of terrorism;

AND WHEREAS the United Nations has urged all states to enact appropriate domestic legislation necessary to implement the provisions of relevant conventions and protocols, to ensure that the jurisdiction of their courts enables them to bring to trial the perpetrators of terrorist acts and to co-operate with and provide support and assistance to other States and relevant international and regional organisations to that end;

ANDWHEREAS the Republic shares the commitment to prevent and combat terrorism with the African Union and the Non-Aligned Movement as expressed in various resolutions as well as the Organisation of African Unity’s Convention on the Prevention and Combating of Terrorism;

AND MINDFUL that the Republic, has since 1994, become a legitimate member of the community of nations and is committed to bringing to justice persons who commit such terrorist acts; and to carrying out its obligations in terms of the international conventions on terrorism;

AND WHEREAS legislation is necessary in the Republic to prevent and combat terrorism, to criminalise terrorist acts, the financing of terrorist acts and the giving of support to terrorists, and to ensure that the jurisdiction of South African courts enables it to bring to trial the perpetrators of terrorist acts,

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

INDEX
CHAPTER 1
INTERPRETATION

1. Definitions

CHAPTER 2
MEASURES RELATING TO OFFENCES

2. Specific terrorist acts
3. Offences and Penalties in respect of terrorist acts
4. Other offences
5. Jurisdiction in respect of offences
6. Bail
7. Extradition from the Republic
8. Power to stop and search vehicle and person
9. Consent of National Director to institute proceedings

CHAPTER 3
INVESTIGATIVE HEARINGS

10. Order for gathering information
11. Warrant for arrest
12. Detention or release on bail or warning
13. Obligation to answer questions and produce things
14. Order for custody of thing
15. Power of court with regard to recalcitrant witness

CHAPTER 4
MEASURES TO COMBAT TERRORISM

Part 1

Combating Support for Terrorist Organisations

16. Declaration of terrorist organisation

Part 2

Combating Financing of Terrorism

17. Dealing in property for terrorist purposes and facilitating
18. Reporting
19. Applicability of rules relating to confidentiality
20. Protection of person making report

Part 3

Search, seizure and forfeiture of terrorist property

21. Search warrant
22. Declarations of forfeiture on conviction
23. Interest of third parties
24. Evidence in respect of declarations of forfeiture and certain interests

Part 4

Preservation and forfeiture of property orders

25. Preservation of property orders
26. Notice of preservation of property orders
27. Duration of preservation of property orders
28. Seizure of property subject to preservation of property order
29. Appointment of curator bonis in respect of property subject to preservation of property order
30. Orders in respect of immovable property subject to preservation of property order
31. Provision for expenses
32. Maximum legal expenses that can be met from preserved property
33. Taxation of legal expenses
34. Variation of recission orders

Part 5

Forfeiture of property

35. Application by National Director for forfeiture order
36. Late notice of opposition
37. Making of forfeiture order
38. Notice of reasonable grounds that property is concerned in terrorist offences
39. Exclusion of interests in property
40. Forfeiture order by default
41. Subsequent application for exclusion in interests in forfeited property
42. Effect of forfeiture order
43. Fulfilment of forfeiture order

2. 
   (i) the person fails to obtain information to confirm or refute the existence of that fact.
   (ii) the person believes that there is a reasonable possibility of the existence of that fact; and
   

(3) For the purposes of this Act a person ought reasonably to have known or suspected a fact if the conclusions that he or she ought to have reached, are those which would have been reached by a reasonably diligent and vigilant person having both —

Any person who, in respect of a ship registered in the Republic or within the territorial waters of the
Republic or maritime navigational facilities, unlawfully and intentionally -

(a) seizes or exercises control over such a ship by force or threat thereof or any other form of intimidation;
(b) performs any act of violence against a person on board such ship if that act is likely to endanger the safe navigation of that ship;
(c) destroys such a ship or causes damage to such ship or to its cargo which is likely to endanger the safe navigation of that ship;
(d) places or causes to be placed on such ship, by any means whatsoever, a device or substance which is likely to destroy that ship, or cause damage to that ship or its cargo which endangers or is likely to endanger the safe navigation of that ship;
(e) destroys or seriously damages maritime navigational facilities or seriously interferes with their operation, if such act is likely to endanger the safe navigation of such ship; or
(f) communicates information, knowing the information to be false and under circumstances in which such information may reasonably be believed, thereby endangering the safe navigation of such ship; commits a terrorist act.

(3)(a) Any person who unlawfully and intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a state or government facility, a public transport facility, a public transportation system, or an infrastructure facility —

(i) with the intent to cause death or serious bodily injury; or
with the intent to cause extensive damage to, or destruction of such a place, facility or system,
where such destruction results in or is likely to result in major economic loss, commits a terrorist act.

(b) This section does not apply to the military forces of a State -

(i) during an armed conflict; or
(ii) in respect of activities undertaken in the exercise of their official duties.

(4) Any person, who, in the Republic -

(a) detains any other person, hereinafter referred to as a hostage; and
(b) in order to compel a State, international governmental organisation or a natural or juristic person to do or abstain from doing any act, threatens to kill, injure or continue to detain the hostage,

commits a terrorist act.

(5) A person who murders or kidnaps an internationally protected person commits a terrorist act.

(6) Any person who unlawfully and intentionally -

(a) seizes or exercises control over a fixed platform on the continental shelf, or the exclusive economic zone or any fixed platform on the High Seas while it is located on the continental shelf of the Republic, by force or threat thereof or by any other form of intimidation;
(b) performs an act of violence against a person on board such a fixed platform if that act is likely to endanger the platform’s safety;
(c) destroys such a fixed platform or causes damage to it which is likely to endanger its safety;
(d) places or causes to be placed on such a fixed platform, by any means whatsoever, a device or substance which is likely to destroy that fixed platform or likely to endanger its safety;
(e) injures or kills any person in connection with the commission or the attempted commission of any of the offences referred to in paragraphs (a) to (d); or
(f) damages or destroys any off-shore installation referred to in section 1 of the Maritime Traffic Act, 1981 (Act No. 2 of 1981), commits a terrorist act.

(ii) against any person within the Republic; or
(iii) against any property that is owned, leased or used by the Republic or by any department or agency
of the Republic, whether the property is within or outside of the Republic, commits a terrorist act.

(b) Any citizen of the Republic or person ordinarily resident within the Republic who, unlawfully and intentionally, uses, or threatens, attempts, or conspires to use, a weapon of mass destruction outside of the Republic; commits a terrorist act.

Offences and Penalties in respect of terrorist acts

3. (1) Any person who—

(a) commits or threatens to commit any terrorist act;
(b) conspires with any person to commit or bring about any terrorist act; or
incites, commands, aids, advises, encourages or procures any other person to commit or bring about any terrorist act; is guilty of an offence and liable on conviction to imprisonment which may include imprisonment for life.

(2) Any person who knowingly facilitates the commission of a terrorist act is guilty of an offence and liable on conviction to imprisonment which may include imprisonment for life.


Other offences

4.(1) Any person who knowingly participates in, or contributes to, the activities of a terrorist organisation or does anything which will, or is likely to, enhance the ability of any terrorist organisation to facilitate or carry out a terrorist act is guilty of an offence and liable on conviction to imprisonment for a period not exceeding 15 years.

(2) An offence may be committed under subsection (1) whether or not —

(a) a terrorist organisation actually facilitates or carries out a terrorist act;

2. the participation or contribution of the accused actually enhances the ability of a terrorist organisation to facilitate or carry out a terrorist act; or
   the accused knows the specific nature of any terrorist act that may be facilitated or carried out by a terrorist organisation.
   

(3) Without limiting the generality of subsection (1), participating in or contributing to the activities of a terrorist organisation includes —

(a) providing, receiving or recruiting a person to receive training;
(b) providing or offering to provide a skill or an expertise for the benefit of, at the direction of or in association with a terrorist organisation;
(c) collecting, providing or making available, directly or indirectly, property or inviting a person to provide, facilitate or make available property or financial or other related services on behalf of such an organisation;
(d) using property, directly or indirectly on behalf of such an organisation;
(e) possessing property intending that it be used, directly or indirectly on behalf of such an organisation;
(f) recruiting a person in order to facilitate or commit —

(i) a terrorist act, or
(ii) an act or omission outside the Republic that, if committed in the Republic, would be a terrorist act;

entering or remaining in any country for the benefit of, at the direction of or in
association with a terrorist organisation; and
making oneself, in response to instructions from any of the persons who constitute a
terrorist organisation, available to facilitate or commit —

(a) a terrorist act, or

(b) an act or omission outside the Republic that, if committed in the Republic, would be a terrorist act.

(4) Nothing in subsection (3) makes it an offence to provide or collect funds intending that they be used, or knowing that they are to be used, for the purpose of advocating democratic government or the protection of human rights.

(5) In determining whether an accused participates in or contributes to any activities of a terrorist organisation, the court may consider, among other factors, whether the accused—

(a) uses a name, word, symbol or other representation that identifies, or is associated with, the terrorist organisation;
(b) frequently associates with any of the persons who constitute the terrorist organisation;
receives any benefit from the terrorist organisation; or
(c) repeatedly engages in acts at the instruction of any of the persons who constitute the terrorist organisation.


(6) Any person who knowingly harbours or conceals any person whom he or she knows to be a person who has carried out or is likely to carry out a terrorist act, for the purpose of enabling the person to facilitate or carry out any terrorist act, is guilty of an offence and liable on conviction to imprisonment for a period not exceeding 15 years.

(7)(a) A person is guilty of an offence if he or she —

(i) places any substance or other thing in any place; or
(ii) sends any substance or other thing from one place to another (by post, rail or any other means
whatever);

(iii) with the intention of inducing in a person anywhere in the world a belief that it is likely to be (or
contain) a noxious substance or other noxious thing or a lethal device or a weapon of mass destruction.

(b) A person is guilty of an offence if he or she communicates any information which he or she knows or believes to be false with the intention of inducing in a person anywhere in the world a belief that a noxious substance or other noxious thing or a lethal device or a weapon of mass destruction is likely to be present (whether at the time the information is communicated or later) in any place.


(c) A person guilty of an offence under this section is liable on conviction to imprisonment for a period not exceeding 10 years or a fine or both.

(d) For the purposes of this section "substance" includes any biological agent and any other natural or artificial substance (whatever its form, origin or method of production).


(e) For a person to be guilty of an offence under this section it is not necessary for him or her to have any particular person in mind as the person in whom he or she intends to induce the belief in question.

(f) The court, in imposing a sentence on a person who has been convicted of an offence under subsection (1), may order that person to reimburse any party incurring expenses incident to any emergency or investigative response to that conduct, for those expenses. A person ordered to make reimbursement under this subsection shall be jointly and severally liable for such expenses with each other person, if any, who is ordered to make reimbursement under this subsection for the same expenses. An order of reimbursement under this subsection shall, for the purposes of enforcement, be treated as a civil judgment.

(10) Any person commits an offence if he or she professes to belong to a terrorist organisation, or carries on with any activities of such terrorist organisation after it has been declared as such, and shall upon conviction, be liable to imprisonment for a period not exceeding 10 years, to a fine or both such imprisonment or fine.

(11) Any person who knowingly possesses any information which may be essential in order to investigate any terrorist act which is being committed, has been committed, or is being planned, and who intentionally withholds such information from a police officer, public prosecutor or a Director, commits an offence, and is liable on conviction to imprisonment for a period not exceeding five years without the option of a fine.

Jurisdiction in respect of offences

5. (1) A court of the Republic has jurisdiction in respect of any offence referred to in this Act, if—

(a) the accused was arrested in the territory of the Republic, or in its territorial waters or on board a ship or
aircraft registered in the Republic; or
(b) the offence was committed—

(i) in the territory of the Republic;
(ii) on board a vessel, a ship, an installation in the sea over the continental shelf or an aircraft registered in the Republic at the time the offence was committed;
(iii) by a citizen of the Republic or a person ordinarily resident in the Republic;
(iv) against the Republic, a citizen of the Republic or a person ordinarily resident in the Republic;
(v) on board an aircraft in respect of which the operator is licensed in terms of the Air Services Licensing Act, 1990 (Act No. 115 of 1990), or the International Air Services Act, 1993 (Act No. 60 of 1993); or
(vi) against a government facility of the Republic abroad, including an embassy or other diplomatic or consular premises, or any other property of the Republic; or

(c) the evidence reveals any other basis recognised by law.

(2) Whenever the National Director receives information that a person who is alleged to have committed an offence under this Act, may be present in the Republic, the National Director must—

(a) order an investigation to be carried out in respect of that allegation;
(b) inform any other foreign States which might also have jurisdiction over the alleged offence promptly of the findings of the investigation; and
(c) indicate promptly to other foreign States, which might also have jurisdiction over the alleged offence, whether he or she intends to prosecute.

(3) If a person is taken into custody to ensure the person’s presence for the purpose of prosecution or extradition to a foreign State the National Director must, immediately after the person has been taken into custody, notify any foreign State which might have jurisdiction over the offence in question either directly or through the Secretary-General of the United Nations, of the—

(a) fact that the person is in custody; and
(b) circumstances that justify the person’s detention.

(4) If the National Director declines to prosecute, he or she must notify any foreign State that might have jurisdiction over the offence in question accordingly with the view to the surrender of such person to such foreign State for prosecution by that State.


Bail

6. Notwithstanding anything to the contrary in any law, where an accused is in custody for an offence under this Act, the provisions relating to bail contained in the Criminal Procedure Act, 1977 (Act No. 51 of 1977), apply as if the accused were charged with an offence referred to in Schedule 6 to that Act.

Extradition from the Republic

7. (1) The provisions of the Extradition Act, 1962 (Act No 16 of 1962) shall apply, with the changes necessitated by the context, in respect of any surrender referred to in section 5.

(2) Promptly after being detained as contemplated in section 7 or 9 of the Extradition Act, 1962, a person who is not —

a South African citizen;
a person ordinarily resident in the Republic; or
a citizen of any State must be informed that he or she is entitled, and must be permitted -

(i) to communicate without delay with the nearest appropriate representative of —

(aa) the State of which the person is a citizen;
(bb) if the person is not a citizen of any State, the State in whose territory the person ordinarily resides; or
(cc) the State, if any that is otherwise entitled to protect the person’s rights; and
to be visited by such representative.

(3) Section 12 of the Extradition Act, 1962 (Act No. 16 of 1962), shall not apply in respect of the extradition of a person who has been arrested for the suspected commission of a terrorist act, if it is alleged that such act has been committed with a motive which relates to the factors set out in the said section 12.

Power to stop and search vehicle and person

8. (1) If, on application ex parte by a police officer of the South African Police Service of or above the rank of director, it appears to the judge that it is necessary in order to prevent terrorist acts, the judge may issue a warrant for the stopping and searching of vehicles and persons with a view to preventing such acts, and such warrant applies for the period specified therein not exceeding 10 days.


(2) Under such warrant any police officer who identifies himself or herself as such may stop and search any vehicle or person for articles or things which could be used or have been used for or in connection with preparation for or the commission or instigation of any terrorist act.

(3) The police officer may seize any article or thing contemplated in subsection (2) and Chapter 2 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), applies with the necessary changes required by the context in respect of any such article or thing.

(4) Section 29 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), applies in respect of the powers conferred upon police officers in terms of this section.

Consent of National Director to institute proceedings

9. (1) No prosecution under this Act may be instituted except with the consent of the National Director.

(2) A person alleged to have committed any offence under this Act may be arrested, or a warrant for the person’s arrest may be issued and executed, and the person may be remanded in custody or on bail, even though the consent of the National Director has not yet been obtained.

(3) If a person is prosecuted for any offence contained in section 2(1) to (5), the National Director must communicate the final outcome of the proceedings promptly to the Secretary-General of the United Nations, so that he or she may transmit the information to other members of the United Nations.

CHAPTER 3
INVESTIGATIVE HEARINGS

Order for gathering information

10. (1) Subject to subsection (3), a police officer may, for the purpose of investigating an offence under this Act, apply ex parte to a judge for an order for the gathering of information.

(2) A police officer may make an application under subsection (1) only if the prior written consent of the National Director has been obtained.

(3) A judge to whom an application is made under subsection (1) may make an order for the gathering of information if there are reasonable grounds to believe that—

(a) an offence in terms of this Act has been committed;
(b) material information concerning the offence, or information that may reveal the whereabouts of a person suspected by the police officer of having committed the offence, is likely to be obtained as a result of the order; and
(c) all other reasonably possible avenues for obtaining the information have been tried without success.

(4) An order made under subsection (3) may—

(a) allow the examination, on oath or affirmation, of a person named in the order;
(b) require the person to attend at a place, mentioned in the order, for the examination and to remain in attendance until excused by the presiding judge;
(c) require the person to bring to the examination a particular thing in his or her possession or control and to produce it to the presiding judge;
(d) designate another judge as the judge before whom the examination is to take place; and
(e) include any other terms or conditions that are desirable, including terms or conditions for the protection of the interests of the person named in the order and of third parties or for the purposes of any ongoing investigation.

(5) A judge may vary the terms and conditions of an order for the gathering of information.

Warrant for arrest

11. (1) A judge contemplated in section 10(3) may issue a warrant for the arrest of the person named in an order for the gathering of information if the judge is satisfied, on information in writing and under oath, that the person—

(a) is evading service of the order;
(b) is about to abscond; or
(c) did not attend the examination, or did not remain in attendance, as required by the order.

(2) A warrant issued under subsection (1) may be executed at any place in the Republic by any police officer having jurisdiction in that place.

(3) A police officer who arrests a person in the execution of a warrant issued under subsection (1) must, without delay, cause the person to be brought before a judge who must promptly inform the person of the reason for being detained in custody.

Detention or release on bail or warning

12. (1) The judge contemplated in section 11(3) may order that the person referred to in section 9 be detained in custody or be released on bail or on warning.

(2) If the person is to be detained, the judge must inform the person that he or she has the right—

(a) to retain and instruct a legal practitioner at any stage of the proceedings;
(b) to communicate and be visited by his or her—

(i) spouse, partner or next of kin;
(ii) chosen religious counsellor; and
(iii) chosen medical practitioner.

Obligation to answer questions and produce things

13. (1) A person named in an order made under section 10 must answer questions put to him or her by the National Director or a person representing the National Director, and must produce to the presiding judge things that the person was ordered to bring, butmay refuse if answering a question or producing a thing would disclose information that is protected by any law relating to non-disclosure of information or to privilege.

(2) The presiding judge must rule on any objection or other issue relating to a refusal to answer a question or to produce a thing.

(3) No person may be excused from answering a question or producing a thing under subsection (1) on the ground that the answer or thing may incriminate the person or subject the person to any proceedings or penalty, but—

(a) no answer given or thing produced; and
(b) no evidence derived from the answers given or things produced, may be used or received against the person in any criminal proceedings, other than a prosecution under section 319(3) of the Criminal Procedure Act, 1955 (Act No. 56 of 1955), or on a charge of perjury.

Order for custody of thing

14. The presiding judge, if satisfied that any thing produced during the course of the examination will be relevant to the investigation of any offence under this Act, may order that the thing be placed into the custody of the relevant police officer or someone acting on behalf of that police officer.

Power of court with regard to recalcitrant witness

15. (1) Section 189 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), applies with the necessary changes required by the context in respect of a person contemplated in section 8.

(2) A person referred to in subsection (1) who refuses or fails to give the information contemplated in section 8, may not be sentenced to imprisonment as contemplated in section 189 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), unless the judge is satisfied that the furnishing of such information is necessary for the administration of
justice or the maintenance of law and order.

CHAPTER 4
MEASURES TO COMBAT TERRORISM

Part 1
Declaration of terrorist organisation

16. (1) The Minister may by notice in the Gazette declare an organisation to be a terrorist organisation, if -
he or she is satisfied on reasonable grounds that one or more of the following paragraphs apply in relation to the organisation:

(i) If that organisation is an international terrorist organisation in terms of a decision of the Security Council of the United Nations; or
(ii) the organisation has committed, or is committing, a terrorist act (whether or not the organisation has been charged with, or convicted of, the terrorist act);
(iii) a member of the organisation has committed, or is committing, a terrorist act on behalf of the organisation (whether or not the member has been charged with, or convicted of, the act);
(iv) the organisation has endangered, or is likely to endanger, the security or integrity of the Republic or another country.

(2) A declaration comes into force at the time it is published in the Gazette and stays in force until:

1. it is revoked; or
   the beginning of a day (if any) specified in the declaration as the day the declaration ceases to be in force.
   

(3) The Minister must by notice in the Gazette revoke a declaration made under subsection (4) in relation to an organisation if the Minister is satisfied on reasonable grounds that none of the paragraphs in subsection (4) applies in relation to the organisation.

(4) A revocation comes into force at the time it is published in the Gazette.

(5) If a terrorist organisation makes an application in writing to the Minister alleging that there are reasonable grounds why its declaration should be revoked, the Minister must without delay decide the application and notify the applicant accordingly.

(6) The applicant may apply to a High Court for judicial review of the Minister’s decision.

(7) When an application is made under subsection (9), the judge shall, without delay—

(a) examine, in private, any security or criminal intelligence reports considered in proscribing the organisation and making the Minister’s decision and hear any other evidence or information that may be presented by or on behalf of the National Director and may, at the request of the National Director, hear all or part of that evidence or information in the absence of the applicant and any counsel representing the applicant, if the judge is of the opinion on reasonable grounds that the disclosure of the information would injure national security or endanger the safety of any person;
(b) provide the applicant with a statement summarizing the information available to the judge so as to enable the applicant to be reasonably informed of the reasons for the Minister’s decision, without disclosing any information the disclosure of which would, in the judge's opinion, on reasonable grounds, injure national security or endanger the safety of any person;
(c) provide the applicant with a reasonable opportunity to be heard; and
(d) determine whether the Minister’s decision is reasonable on the basis of the information available to the judge and, if found not to be reasonable, order that the applicant no longer be a proscribed organisation.

(8) The Minister shall cause to be published, without delay, in the Gazette notice of a final order of a court that the applicant no longer be a terrorist organisation.

(9) A terrorist organisation may make another application under subsection (8), if there has been a material change in its circumstances since the time when the organisation made its last application.

Part 2

MEASURES TO COMBAT TERRORISM

Dealing in property for terrorist purposes and facilitating

17. Any person whether within or outside the Republic who knowingly —

(a) deals directly or indirectly in any property that is owned or controlled by or on behalf of a terrorist organisation;
(b) enters into or facilitates, directly or indirectly, any transaction in respect of property referred to in paragraph (a); or
(c) provides any financial or other related services in respect of property referred to in paragraph (a) to, for the benefit of or at the direction of a terrorist organisation, is guilty of an offence and is liable on conviction to imprisonment for a period not exceeding 15 years.

Reporting

18.(1) Any person shall report forthwith to the Financial Intelligence Centre —

(a) the existence of property in their possession or control that they know or can be reasonably expected to know, is owned or controlled by or on behalf of a terrorist organisation; and
(b) information about a transaction or proposed transaction in respect of property referred to in paragraph (a).

(2) A person who carries on a business or is in charge of or manages a business or who is employed by a business and who knows or suspects that a transaction or series of transactions to which the business is a party is related to an offence referred to in sections 4(1) to (3) or 17 must, within the prescribed period after the knowledge was acquired or the suspicion arose, report to the Financial Intelligence Centre the grounds for the knowledge or suspicion and the prescribed particulars concerning the transaction or series of transactions.

(3)(a) An accountable institution which has in its possession or control property owned or controlled by or on behalf of a terrorist organisation organisation must, within the prescribed period, report that fact and the prescribed particulars to the Financial Intelligence.

(b) The Director of the Centre may direct and accountable institution which has made a report in terms of paragraph (a) to report-

(i) at such intervals as may be determined in the direction, that it is still in possession or control of the property in respect of which the report in terms of paragraph (a) had been made, and
(ii) any change in the circumstances concerning the accountable institution’s possession or control of that property.

Applicability of rules relating to confidentiality

19. (1) Subject to subsection (2), no duty of secrecy or confidentiality or any other restriction on the disclosure of information, whether imposed by legislation or arising from the common law or agreement, affects compliance by an accountable institution or any other person with sections 17 and 18.

(2) Subsection (1) does not apply to the common law right to legal professional privilege as between an attorney and client in respect of communications made in confidence for the purpose of legal advice or litigation which is pending or contemplated or which has commenced.

Protection of person making report

20. (1) No action, whether criminal or civil, lies against an accountable institution or any other person complying in good faith with section 17 or 18.

(2) A person who has made, initiated or contributed to a report in terms of section 17 or 18 or the grounds for such a report, is competent, but not compellable, to give evidence in criminal proceedings arising from the report.

(3) No evidence concerning the identity of a person who has made, initiated or contributed to a report in terms of section 17 or 18 or who has furnished additional information concerning such a report or the grounds for such a report in terms of this Act, or the contents or nature of such additional information or grounds, is admissible as evidence in criminal proceedings unless that person testifies at those proceedings.




Part 3

SEARCH, SEIZURE AND FORFEITURE OF TERRORIST PROPERTY

Search warrant

21.(1) Where a police officer believes on reasonable grounds that there is in any building, receptacle or place any property as referred to in sections 4(1) to (3) or 17 he or she may apply to a judge for a search warrant to be issued for the seizure of such property.

(2) If it appears to the judge from information on oath contained in the application referred to in subsection (1) that there are reasonable grounds for believing that there is in any building, receptacle or place any property referred to in subsection (1) in the possession or under the control of or upon any person or upon or at any premises the judge may issue a search warrant if the following conditions are met —

1. that there are reasonable grounds for suspecting that the property is intended to be used for the purposes referred to in sections 4(1) to (3) or 17 and that either —
   its continued seizure is justified while its derivation or its intended use is further investigated or consideration is given to bringing (in the Republic or elsewhere) proceedings against any person for an offence with which the property is connected, or
   proceedings against any person for an offence with which the property is connected have been started and have not been concluded; or
   that there are reasonable grounds for suspecting that the property consists of resources of an organisation which is a proscribed organisation and that either —
   

(i) its continued seizure is justified while investigation is made into whether or not it consists of such resources or consideration is given to bringing (in the Republic or elsewhere) proceedings against any person for an offence with which the property is connected, or

(ii) proceedings against any person for an offence with which the property is connected have been started and have not been concluded.

(3) A search warrant issued under subsection (2) shall require a police officer to seize the property in question and shall to that end authorize such police officer to search any person identified in the warrant, or to enter and search any premises identified in the warrant and to search any person or thing found on or at such premises.

(4) If the property seized consists of cash or funds standing to the credit of a bank account, the police officer shall pay such cash or funds into a banking account which shall be opened with any bank as defined in section 1 of the Banks Act, 1990 (Act 94 of 1990) and the police officer shall forthwith report to the Financial Intelligence Centre the fact of the seizure of the cash or funds and the opening of the account.

(5) A judge may direct the release of the whole or any part of the property if satisfied, on an application by the person from whom it was seized, that the conditions in subsection (2) for the detention of property are no longer met in relation to the property.

(6) Property is not to be released as referred to in subclause (5) —

1. 
   (i) if a declaration for its forfeiture under section 22, or an application to determine interests of third parties under section 24, is made, until any proceedings in pursuance of the application (including any proceedings on appeal) are concluded,
   

(ii) if (in the Republic or elsewhere) proceedings are started against any person for an offence with which the property is connected, until the proceedings are concluded.

Declarations of forfeiture on conviction

22.(1) Whenever any person is convicted of an offence under section 4(1) to (3) or section17, the court in passing sentence shall, in addition to any punishment which that court may impose in respect of the offence, declare-

(a) any property-

(i) by means of which the offence was committed;
(ii) which was used in the commission of the offence; or
(iii) which was found in the possession of the convicted person;

and which was seized under section 21 or is in the possession or custody or under the control of the convicted person, to be forfeited to the State.

(2) The court which makes a declaration of forfeiture of property referred to in subsection (1), shall order the registrar of the High Court concerned or clerk of the Magistrate's Court for the district concerned to forthwith publish such declaration calling upon interested parties through the media and by notice in the Gazette.

(3) Anything forfeited under subsection (1) shall, if it was seized under section 21, be kept or, if it is in the possession or custody or under the control of the convicted person, be seized and kept-

(a) for a period of 90 days after the date of the notice published in the Gazette; or
(b) if any person referred to in section 23(1) has within the period contemplated in paragraph (a) made an application to the court concerned regarding his or her interest in such thing, until a final decision has been rendered in respect of any such application.

Interests of third parties

23.(1) A declaration of forfeiture shall not affect any interest which any person other than the convicted person may have in the property in question, if the former person proves —

that he or she acquired the interest in that property in good faith and for consideration, whether in cash or otherwise; and

(b) that the circumstances under which he or she acquired the interest in that property were not of such a nature that he or she could reasonably have been expected to have suspected that it was property as referred to in section 4(1) to (3) or section 17; or

(c) that he or she could not prevent such use.

(2)(a) Subject to the provisions of subsection (1), the court concerned or, if the judge or judicial officer concerned is not available, any judge or judicial officer of that court may at any time within a period of three years from the date of the declaration of forfeiture, on the application of any person other than the convicted person who claims that he or she has any interest in the property in question, inquire into and determine any such interest.

(b) If a court referred to in paragraph (a) finds —

(i) that the property is wholly owned by the applicant, the court shall set aside the declaration of forfeiture in question and direct that the property be returned to the applicant or, if the State has disposed of it, direct that the applicant be compensated by the State in an amount equal to the value of the property disposed of;
(ii) that the applicant has an interest in the property —

the court shall direct that the property be sold by public auction and that the applicant be
paid out of the proceeds of the sale an amount equal to the value of his interest therein, but not exceeding the proceeds of the sale; or

(bb) if the State has disposed of the property the court shall direct that the applicant be compensated by the State in an amount equal to the value of his interest therein.

(3) Any person aggrieved by a determination made by the court under subsection (2), may appeal against the determination as if it were a conviction by the court making the determination, and such appeal may be heard either separately or jointly with an appeal against the conviction as a result of which the declaration of forfeiture was made, or against a sentence imposed as a result of such conviction.

Evidence in respect of declarations of forfeiture and certain interests

24. In order to make a declaration of forfeiture or to determine any interest under section 24(2), the court may refer to the evidence and proceedings at the trial or hear such further evidence, either orally or by affidavit, as it may deem fit.

Part 4

PRESERVATION AND FORFEITURE OF PROPERTY ORDERS

Preservation of property orders

25. (1) The National Director may by way of an ex parte application apply to a High Court for an order prohibiting any person, subject to such conditions and exceptions as may be specified in the order, from dealing in any manner with any property contemplated in sections 4(1) to (3) or section 17. .

(2) The High Court after examining the application in private, and being satisfied that there are reasonable grounds to believe that there is in any building, receptacle or place any property contemplated in sections 4(1) to (3) or section 17, may make a provisional preservation order which has immediate effect and may simultaneously grant a rule nisi calling upon all interested parties upon a day mentioned in the rule to appear and to show cause why the preservation order should not be made final.

(3) A High Court making a provisional preservation of property order may include in the order an order authorising the seizure of the property concerned by a police official, and any other ancillary orders that the court considers on reasonable grounds appropriate for the proper, fair and effective execution of the order.

(4) Property seized under subsection (3) shall be dealt with in accordance with the directions of the High Court which made the relevant preservation of property order.

Notice of preservation of property orders

26.(1) If a High Court makes a preservation of property order referred to in section 25, the National Director shall, as soon as practicable after the making of the order-

give notice of the order to all persons known to the National Director to have an interest in property which is subject to the order; and
publish a notice of the order in the Gazette; and
the court may require publication in the media of the fact of the application.

(2) A notice under subsection (1)(a) shall be served in the manner in which a summons, commencing civil proceedings in the High Court is served.

(3) Any person who has an interest in the property which is subject to the preservation of property order may give notice of his or her intention to oppose the making of a forfeiture order or to apply for an order excluding his or her interest in the property concerned from the operation thereof.

(4) A notice of intention to oppose under subsection (1) shall be delivered to the National Director within, in the case of —

(a) a person upon whom a notice has been served under subsection (1)(a), two weeks after such service; or
(b) any other person, two weeks after the date upon which a notice under subsection (1) (b) was published in the Gazette or the publication in the media of the fact of the application.

(5) A notice of intention to oppose under subsection (3) shall contain full particulars of the chosen address for the delivery of documents concerning further proceedings under this Part and shall be accompanied by an affidavit stating-

(a) full particulars of the identity of the person opposing;

(b) the nature and extent of his or her interest in the property concerned; and

(c) the basis of the defence upon which he or she intends to rely in opposing a forfeiture order or applying for the exclusion of his or her interests from the operation thereof.

Duration of preservation of property orders

27.(1) A preservation of property order shall expire 90 days after the date on which notice of the making of the order is published in the Gazette unless-

(a) there is an application for a forfeiture order pending before the High Court in respect of the property subject to the preservation of property order;
(b) there is an unsatisfied forfeiture order in force in relation to the property subject to the preservation of property order; or
(c) the order is rescinded before the expiry of that period.

Seizure of property subject to preservation of property order

28.(1) In order to prevent property subject to a preservation of property order from being disposed of or removed contrary to that order, any police officer may seize any such property if he or she has reasonable grounds to believe that such property will be so disposed of or removed.

(2) Property seized under subsection (1) shall be dealt with in accordance with the directions of the High Court which made the relevant preservation of property order.

Appointment of curator bonis in respect of property subject to preservation of property order

29.(1) Where a High Court has made a preservation of property order, the Court shall, if it deems it appropriate, at the time of the making of the order or at a later time-

(a) appoint a curator bonis to do, subject to the directions of the Court, any one or more of the following on behalf of the person against whom the preservation of property order has been made, namely-

(i) to assume control over the property;

(ii) to take care of the said property;

(iii) to administer the said property and to do any act necessary for that purpose; and

(iv) where the said property is a business or undertaking, to carry on, with due regard to any law which may be applicable, the business or undertaking; and

(b) order any person holding property subject to the preservation of property order to surrender forthwith, or within such period as that Court may determine, any such property into the custody of the curator bonis.

(2) The Court which made an order under subsection (1) may make such order relating to the fees and expenditure of the curator bonis as it deems fit, including an order for the payment of the fees of the curator bonis —

(a) from the forfeited property if a forfeiture order is made; or

(b) by the State if no forfeiture order is made.

Orders in respect of immovable property subject to preservation of property order

30.(1) A High Court which has made a preservation of property order in respect of immovable property may at any time, with a view to ensuring the effective execution of a subsequent order, order the registrar of deeds concerned to endorse any one or more of the restrictions referred to in subsection (2) on the title deed of the immovable property.

(2) An order under subsection (1) may be made in respect of the following restrictions, namely-

(ii) where the owner of that immovable property is a company or other corporate body which is being wound up, form part of the assets of such company or corporate body.

(3) In order to give effect to subsection (1), the registrar of deeds concerned shall-

(a) make the necessary entries in his or her registers and the necessary endorsement on the office copy of the title deed, and thereupon any such restriction shall be effective against all persons except, in the case of a restriction contemplated in subsection (2)(b), against any person in whose favour a mortgage bond or other charge was registered against the title deed of immovable property prior to the endorsement of the restriction on the title deed of the immovable property, but shall lapse on the transfer of ownership of the immovable property concerned;
(b) when the original of the title deed is produced to him or her, make the necessary endorsement thereon.

(4) Unless the High Court directs otherwise, the custody of immovable property on the title deed of which a restriction contemplated in subsection (2)(c) was endorsed shall vest as from the date on which-

the estate of the owner of the immovable property is sequestrated; or
where the owner of the immovable property is a company or other corporate body, such company or corporate body is being wound up,
in the person in whom the said custody would have vested if such a restriction were not so endorsed.

(5) Where the High Court granted its consent in respect of a restriction contemplated in subsection (2)(c) and endorsed on the title deed of immovable property, the immovable property shall be deemed-

(a) if the estate of the owner of the immovable property was sequestrated, to have vested in the Master of the High Court or trustee concerned, as the case may be, as if such a restriction were not so endorsed; or
(b) if the owner of the immovable property is a company or other juristic person which is being wound up, to have formed part of the assets of such company or juristic person as if such a restriction were not so endorsed.

(6) Any person affected by an order contemplated in subsection (1) may at any time apply for the rescission of the order.

Provision for expenses

31. (1) A preservation of property order may make provision as the High Court deems fit for —

reasonable living expenses of a person holding an interest in property subject to a preservation of property order and his or her family or household; and
reasonable legal expenses of such a person in connection with any proceedings instituted against him or her in terms of this Act or any other related criminal proceedings.

(2) A High Court shall not make provision for any expenses under subsection (1) unless it is satisfied that-

(a) the person cannot meet the expenses concerned out of his or her property which is not subject to the preservation of property order; and
(b) the person has disclosed under oath all his or her interests in the property and has submitted to that Court a sworn and full statement of all his or her assets and liabilities.


Maximum legal expenses that can be met from preserved property

32. (1) Despite provision in a preservation of property order for the meeting of legal expenses out of any property to which the order applies, a legal expense is not to be met out of that property to the extent that the amount payable for any legal service concerned exceeds any prescribed maximum allowable cost for that service.

(2) This section operates only to limit the amount of the legal expenses that a High Court may provide for under section 49 to be met out of property that is subject to a preservation of property order and does not limit or otherwise affect any entitlement of a legal practitioner to be paid or to recover for a legal service any amount that exceeds any applicable maximum.

Taxation of legal expenses

33. (1) If a High Court granting a preservation of property order makes provision for a person's reasonable legal expenses-

(a) the National Director; or
(b) the curator bonis,

may apply to the High Court for an order under this section.

(2) The curator bonis or the National Director must give notice of an application under this section to the person concerned.

(3) On an application under this section, the High Court must order that the expenses be taxed as provided in the order.

(4) After an application is made for an order under this section, the curator bonis need not, unless ordered by the Court to do so, take any steps for the purpose of meeting the expenses as provided by the preservation of property order unless and until-

(a) an order under this section in relation to the expenses is complied with; or
the application, and any appeal arising out of it, are finally determined, or otherwise disposed of, other than by the making of such an order.

Variation and rescission of orders

34.(1) A High Court which made a preservation of property order may on application by a person affected by that order vary or rescind the preservation of property order or an order authorising the seizure of the property concerned or other ancillary order, if such order was —

(i) erroneously sought or erroneously granted in the absence of any party affected thereby;
(ii) in which there is an ambiguity, or a patent error or omission, but only to the extent of such ambiguity, error or omission;
(iii) granted as a result of a mistake common to the parties; and
(iv) the court shall make such other order as it considers appropriate for the proper, fair and effective execution of the preservation of property order concerned.

(2) The party desiring any relief under subsection(1) shall make application therefor upon notice to all parties whose interests may be affected by any variance sought.

(3) The court shall not make any order rescinding or varying any preservation order or an order authorising the seizure of the property concerned or other ancillary order unless satisfied —

(a) that all parties whose interests may be affected have notice of the order proposed;
(b) that the operation of the order concerned will deprive the applicant of the means to provide for his or her reasonable living expenses and cause undue hardship for the applicant; and
(c) that the hardship that the applicant will suffer as result of the order outweighs the risk that the property concerned may be destroyed, lost, damaged, concealed or transferred;

(4) The court which made the preservation order shall rescind the preservation of property order when the proceedings against the defendant concerned are concluded.

(5) When a court orders the rescission of an order authorising the seizure of property under paragraph (a) of subsection (1) the court shall make such other order as it considers appropriate for the proper, fair and effective execution of the preservation of property order concerned.

(6) Any person affected by an order for the appointment of a curator bonis may at any time apply-

(a) for the variation or rescission of the order;
(b) for the variation of the terms of the appointment of the curator bonis concerned; or
(c) for the discharge of the curator bonis.

(7) A High Court which made an order for the appointment of a curator bonis —

(iii) discharge that curator bonis;

(b) shall rescind the order and discharge the curator bonis concerned if the relevant preservation of property order is rescinded.

(8)(a) Any person affected by an order in respect of immovable property may at any time apply for the rescission of the order.

(b) A High Court which made an order in respect of immovable property-

(i) may, if it deems it necessary in the interests of justice, at any time rescind the order; or
(ii) shall rescind the order if the relevant preservation of property order is rescinded.

(c) If an order in respect of immovable property is rescinded, the High Court shall direct the registrar of deeds concerned to cancel any restriction endorsed by virtue of that order on the title deed of immovable property, and that registrar of deeds shall give effect to any such direction.


Part 5

FORFEITURE OF PROPERTY

Application by National Director for forfeiture order

35.(1) If a preservation of property order is in force the National Director, may apply to a High Court for an order forfeiting to the State all or any of the property contemplated in sections 4(1) to (3) or 17 that is subject to the preservation of property order.

(2) The National Director shall give 14 days notice of an application under subsection (1) to every person who opposed the application for a preservation order.

(3) A notice under subsection (1) shall be served in the manner in which a summons commencing civil proceedings in the High Court, is served.

(4) Any person who is referred to in subsection (2) may appear at the application under subsection (1) —

(a) to oppose the making of the order; or
(b) to apply for an order-

(i) excluding his or her interest in that property from the operation of the order; or
(ii) varying the operation of the order in respect of that property,

and may adduce evidence at the hearing of the application.

Late notice of opposition

36.(1) Any person who, for any reason, did not give notice of intention to oppose may, within two weeks of becoming aware of the existence of a preservation of property order, apply to the High Court for leave to give such notice.

(2) An application in terms of subsection (1) may be made before or after the date on which an application for a forfeiture order is made under section 35, but shall be made before judgment is given in respect of such an application for a forfeiture order.

(3) The High Court may grant an applicant referred to in subsection (1) leave to give notice of intention to oppose within the period which the Court deems appropriate, if the Court is satisfied on good cause shown that such applicant-

has for sufficient reason failed to give notice of intention to oppose; and
has an interest in the property which is subject to the preservation of property order.

(4) When a High Court grants an applicant leave to oppose, the Court —

shall make any order as to costs against the applicant; and
may make any order to regulate the further participation of the applicant in proceedings concerning an application for a forfeiture order, which it deems appropriate.

(5) Notice to oppose after leave has been obtained under subsection (1) shall contain full particulars of the chosen address of the person who enters such appearance for the delivery of documents concerning further proceedings and shall be accompanied by an affidavit referred to in section 26(5).

Making of forfeiture order

37. (1) The High Court shall, subject to section 59, make an order applied for under section 54 if the Court finds on a balance of probabilities that the property concerned is property as contemplated in sections 4(1) to (3) or 17.

(2) The High Court may, when it makes a forfeiture order or at any time thereafter, make any ancillary orders that it considers appropriate, including orders for and with respect to facilitating the transfer to the State of property forfeited to the State under such an order.

(3) The absence of a person whose interest in property may be affected by a forfeiture order does not prevent the High Court from making the order.

(4) The validity of an order under paragraph (a) is not affected by the outcome of criminal proceedings, or of an investigation with a view to institute such proceedings, in respect of an offence with which the property concerned is in some way associated.

(5) The Registrar of the Court issuing a forfeiture order must publish a notice thereof in the Gazette as soon as practicable after the order is made.

(6) A forfeiture order shall not take effect —

(a) before the period allowed for an application under section 41 or an appeal against a forfeiture order has expired; or
(b) before such an application or appeal has been disposed of.

Notice of reasonable grounds that property is concerned in terrorist offences

38. (1) The National Director may apply to a judge for an order notifying a person having an interest in or control over property that there are reasonable grounds to believe that such property is property referred to in section 4(1) to (3) or 17.

(2) The judge shall make an order referred to in subsection (1) if the judge is satisfied that there are reasonable grounds to believe that the property concerned is property referred to in section 4(1) to (3) or 17.

(3) When a judge makes an order under subsection (1), the registrar of the High Court concerned shall issue a notice in the prescribed form to the person referred to in the order, informing him or her that there are reasonable grounds to believe that property in which he or she has an interest or over which he or she has control, is property referred to in sections 4(1) to (3) or 17.

(4) A notice issued under subsection (3) shall be served on the person concerned in the manner in which a summons commencing civil proceedings in the High Court is served.


Exclusion of interests in property

39. (1) The High Court may, on application-

(a) under section 35(4); or
(b) by a person referred to in section 36(1),

and when it makes a forfeiture order, make an order excluding certain interests in property which is subject to the order, from the operation thereof.

(2) The National Director or the curator bonis concerned, or a person authorised in writing thereto by them, may present evidence and witnesses in rebuttal and in defence of their claim to the property and may cross-examine a witness who appears at the hearing.

(3) In addition to the testimony and evidence presented at the hearing, the High Court may, upon application by the National Director or the curator bonis concerned, or a person authorised in writing thereto by them, order that the testimony of any witness relating to the property forfeited, be taken on commission and that any book, paper, document, record, recording, or other material not privileged be produced at the hearing of such testimony on commission.

(4) The High Court may make an order under subsection (1), in relation to the forfeiture of the property referred to in section 4(1) to (3) or 17, if it finds on a balance of probabilities that the applicant for the order-

(a) had acquired the interest concerned legally and for a consideration, the value of which is not significantly less than the value of that interest; and
(b) where the applicant had acquired the interest concerned after the commencement of this Act, that he or she neither knew nor had reasonable grounds to suspect that the property in which the interest is held is property referred to in sections 4(1) to (3) or 17; or
(c) where the applicant had acquired the interest before the commencement of this Act, that the applicant has since the commencement of this Act taken all reasonable steps to prevent the use of the property concerned as property referred to in sections 4(1) to (3) or 17.

(5)(a) A person who testifies under this section and —

(i) fails to answer fully and to the best of his or her ability any question lawfully put to him or her; or
(ii) gives false evidence knowing that evidence to be false or not believing it to be true, shall be guilty of an offence.

(b) A person who furnishes an affidavit under subsection (2) and makes a false statement in the affidavit knowing that statement to be false or not believing it to be true, shall be guilty of an offence.
(c) A person convicted of an offence under this subsection shall be liable to the penalty prescribed by law for perjury.

(6)(a) If an applicant for an order under subsection (1) adduces evidence to show that he or she did not know or did not have reasonable grounds to suspect that the property in which the interest is held, is property referred to in sections 4(1) to (3) or 17, the State may submit a return of the service on the applicant of a notice issued under section 39(3) in rebuttal of that evidence in respect of the period since the date of such service.

(b) If the State submits a return of the service on the applicant of a notice issued under section 38(3) as contemplated in paragraph (a), the applicant for an order under subsection (1) must, in addition to the facts referred to in subsection 4(1) to (3), also prove on a balance of probabilities that, since such service, he or she has taken all reasonable steps to prevent the further use of the property concerned as an property referred to in section 4(1) to (3) or 17.
(c) A High Court making an order for the exclusion of an interest in property under paragraph (a) may, in the interest of the administration of justice or in the public interest, make that order upon the conditions that the Court deems appropriate including a condition requiring the person who applied for the exclusion to take all reasonable steps, within a period that the Court may determine, to prevent the future use of the property as property contemplated in section 4(1) to (3) or 17.

Forfeiture order by default

40. (1) If the National Director applies for a forfeiture order by default and the High Court is satisfied that no person has appeared on the date upon which an application under section 52(1) is to be heard and, on the grounds of sufficient proof or otherwise, that all persons who gave notice of intention to oppose in terms of section 43(3) have knowledge of notices given under section 35(2), the Court may-

1. make any order by default which the Court could have made under sections 37(1) and (2);
   

make such order as the Court may consider appropriate in the circumstances; or
(c) make no order.

(2) The High Court may, before making an order in terms of subsection (1), call upon the National Director to adduce such further evidence, either in writing or orally, in support of his or her application as the Court may consider necessary.

(3) Any person whose interest in the property concerned is affected by the forfeiture order or other order made by the Court under subsection (1) may, within 60 days after he or she has acquired knowledge of such order or direction, set the matter down for variation or rescission by the court.

(4) The court may, upon good cause shown, vary or rescind the default order or give some other direction on such terms as it deems appropriate.

Subsequent application for exclusion of interests in forfeited property

41. (1) Any person affected by a forfeiture order who was entitled to receive notice of the application, but did not receive such notice, may, within 60 days after the notice of the forfeiture order is published in the Gazette, apply for an order excluding his or her interest in the property concerned from the operation of the order, or varying the operation of the order in respect of such property.

(2) The application shall be accompanied by an affidavit setting forth-

(i) the nature and extent of the applicant's right, title or interest in the property concerned;
(ii) the time and circumstances of the applicant's acquisition of the right, title, or interest in the property;
(iii) any additional facts supporting the application; and
(iv) the relief sought.

(3) The hearing of the application shall, to the extent practicable and consistent with the interests of justice be held within 60 days of the filing of the application.

(4) The High Court may consolidate the hearing of the application with a hearing of any other application filed by a person under this section.

(5) At the hearing, the applicant may testify and present evidence and witnesses on his or her own behalf, and may cross-examine any witness who appears at the hearing.

(6) The National Director or the curator bonis concerned, or a person authorised in writing thereto by them, may present evidence and witnesses in rebuttal and in defence of their claim to the property and may cross-examine a witness who appears at the hearing.

(7) In addition to the testimony and evidence presented at the hearing, the High Court may, upon application by the National Director or the curator bonis concerned, or a person authorised in writing thereto by them, order that the testimony of any witness relating to the property forfeited, be taken on commission and that any book, paper, document, record, recording, or other material not privileged be produced at the hearing of such testimony on commission.

(8) The High Court may make an order under subsection (1), in relation to the forfeiture of the property referred to in section 4(1) to (3) or 17, if it finds on a balance of probabilities that the applicant for the order-

(a) had acquired the interest concerned legally and for a consideration, the value of which is not significantly less than the value of that interest; and
(b) where the applicant had acquired the interest concerned after the commencement of this Act, that he or she neither knew nor had reasonable grounds to suspect that the property in which the interest is held is property referred to in section 4(1) to (3) or 17; or
(c) where the applicant had acquired the interest before the commencement of this Act, that the applicant has since the commencement of this Act taken all reasonable steps to prevent the use of the property concerned as property referred to in sections 4(1) to (3) or 17.

(9)(a) A person who testifies under this section and —

(i) fails to answer fully and to the best of his or her ability any question lawfully put to him or her;
(ii) or gives false evidence knowing that evidence to be false or not believing it to be true, shall be guilty of an offence.

(b) A person who furnishes an affidavit under subsection (2) and makes a false statement in the affidavit knowing that statement to be false or not believing it to be true, shall be guilty of an offence.
(c) A person convicted of an offence under this subsection shall be liable to the penalty prescribed by law for perjury.

Effect of forfeiture order

42.(1)(a) Where a High Court has made a forfeiture order and a curator bonis has not been appointed in respect of any of the property concerned, the High Court may appoint a curator bonis to perform any of the functions referred to in section 61 in respect of such property.

(b) On the date when a forfeiture order takes effect the property subject to the order is forfeited to the State and vests in the curator bonis on behalf of the State.

(c) Upon a forfeiture order taking effect the curator bonis may take possession of that property on behalf of the State from any person in possession, or entitled to possession, of the property.

Fulfilment of forfeiture order

43.(1) The curator bonis must, subject to any order for the exclusion of interests in forfeited property under sections 39(2)(a) or 41(8) and in accordance with the directions of the Criminal Assets Recovery Committee as contemplated in the Prevention of Organised Crime Act, 1998 (Act No. 121 of 1998)-

CHAPTER 5

GENERAL PROVISIONS

Regulations

44. (1) The Minister may make regulations concerning any—

(a) matter that may or must be prescribed in terms of this Act; and
(b) other matter which it is necessary or expedient to prescribe for the proper implementation of this Act.

(2) Regulations in terms of subsection (1) may include -

1. specifying the reporting by accountable institutions in terms of section 18; and
   
2. specifying how the proceeds referred to in section 43 are to be distributed.".
   

SCHEDULE 2
SCHEDULE OF LAWS AMENDED OR REPEALED: SECTION 47

MEMORANDUM ON THE OBJECTS OF THE ANTI-TERRORISM BILL, 2003

BACKGROUND

1. Recent acts of terrorism and international and regional obligations arising from acts of terrorism necessitate new legislation on terrorism in the Republic. The international and regional obligations are contained in a number of instruments on terrorism ratified by the Republic.

OBJECTS

2.1 The Bill seeks to provide for the international and regional obligations of the Republic as part of South African domestic law. The Bill further seeks to provide for extended jurisdiction of the courts in relation to acts of terrorism, as required by the said international instruments and to give effect to the principle of ‘‘ extradite or prosecute’’ as required by the relevant international instruments.

2.2 The Bill seeks to introduce measures to enable the Republic to act effectively against the financing of terrorism, including mechanisms regarding reporting of suspected incidents of financial and other support for terrorist organisations, as well as provisions on the seizure and forfeiture of terrorist property and the declaration of organisations as terrorist organisations.

2.3 The Bill also seeks to facilitate the investigation of terrorist acts by providing for investigative hearings and powers of search and seizure.

CONSULTATION

3. This Bill is the result of a comprehensive review of the law relating to terrorism conducted by the South African Law Commission during which extensive consultation took place.

FINANCIAL IMPLICATIONS FOR STATE

4. Since use is made of existing structures such as those contained in the Prevention of Organised Crime Act,
1998 (Act No. 121 of 1998), and the Financial Intelligence Centre Act, 2001 (Act No. 38 of 2001), no significant financial implications for the State are foreseen.

PARLIAMENTARY PROCEDURE

5. The South African Police Service and the State Law Advisers are of the opinion that this Bill must be dealt with in accordance with the procedure established by section 75 of the Constitution since it contains no provision to which the procedures set out in section 74 or 76 of the Constitution apply.