1. The express purpose of the Bill being to give effect within the Republic to relevant
international instruments1 we deal with its provisions within the international and domestic
context
2. Terrorism is an extension of politics. Its essence a coercion by violent means: usually of a
civilian population with the object of influencing the conduct and policy of government.
See for example the US Congressional & Administrative News, 98th Congress Second Session, 1984, October 19, Vol 2; para 3077. 98 STAT 2707 [West Publishing Co 1984]
3. The (international) Convention Offences in Schedule I are no more than desultory examples
of prohibited components of terror. Comprehensive international definition of terror is
conspicuous by its absence: because terrorism manifests itself in political conflict which
always has at least two sides. Therefore the Statute of the International Criminal Court failed
to include a crime of terrorism.
4. A Comprehensive International Convention against Terror (now moribund), has been
proposed by India in the UN General Assembly, with a view to serve as a convention
complimenting all he other terror conventions. Deadlock occurred during deliberations in the
6th(legal) drafting committee of the UN General Assembly on 7 November 2001, after the
Organisation of Islamic States sought to adopt a prohibition on terror which exempted acts
carded out against 'foreign occupation" (meaning Israel then and the Anglo-American
coalition now).
5 For purposes of compliance with South Africa's international obligations the Act should
expressly provide that "terrorist act" means no more than what is already defined in the
instruments forming part of Schedule 1. Failing this a law will be created that might create an
obligation to extradite or prosecute acts not prohibited in the conventions and performed by
persons who may have the support of both the government and its electorate. 6 Within the domestic context South Africa has a history of enacting terrorist legislation which is
calculated to persecute and label as criminal political opposition to government in the
absence of any internationally recognised criminal activity. Such legislation had the effect of
facilitating successful prosecutions on the basis of the defendants' own statements rather
than forensic evidence.
7. We recognise that the drafters of the Bill have borne historical lessons in mind. Nevertheless
a fair amount of tightening up still needs to be done.
Chapter 1 "Interpretation"
8. A striking feature of this Chapter is the extensive reference made to definitions contained in
other legislation. While this is not impermissible per se, it is nevertheless an unsatisfactory
way of identifying key concepts in the Bill, as it hinders or limits the accessibility of the Bill to
the ordinary reader. Furthermore, as a legislative tool, this approach to definitions carries the
additional risk of uncertainty and confusion which may arise if any of the cross-referenced
statutes should be amended or repealed with the passage of time.
9. Two definitions in particular deserve attention, namely:
9.1 "terrorist act" An unlawful act, committed in or outside the Republic") This is a
ludicrous definition unless it is only intended to refer to the convention offences
referred to in Schedule 1. If so the definition should expressly say so. Otherwise in
terms of this definition, the theft of a chicken, or parting in a loading zone, would
qualify as a "terrorist act" and would expose the offender to imprisonment (including
imprisonment for life)! There can be no doubt that the broadness of the definition as
it stands renders it unconstitutional and invalid.
9.2 'terrorist organisation" ("anorganisation declared as such under section 14
which is - (a) a convention offence ... "): This definition simply makes no sense, and is
not saved by the definition of "convention offence" or a scrutiny of Schedule 1. It is
not clear what the provision intends to convey, thus making it impossible to offer
further comment.
Chapter 2 : "Measures relating to Offences"
10. In view of the above-stated comments with regard to the deficiencies in the definitions of
"terrorist act" and terrorist organisation", it would be futile to offer any comment on sections
2, 4 and 6 of the Bill, save to say that:
10.1 the word knowingly is too broad to create mens rea for the liability, contemplated in
sub-sections 2(4) and 2(5) ("Internationally" would be a more appropriate term);
10.2 the offence of furnishing food, drink and clothing to a member of a terrorist
organisation is so draconian that it does not even receive the recognition of the Israeli
High Court of Justice in relation to "terrorism" in Israeli occupied territories ("war
zones") (See:Ajuri & 2 Others v Israeli Defence Force commander HCJ7019/02,
3 September 2002.)
11. One is puzzled by the contents of section 3. Is it intended to protect those who hold
diplomatic immunity against all manner of unlawful conduct, including conduct which has no
political or terrorist connotation? If so, it seems unjustified to invoke the provisions or the Bill:
such protection should rather be afforded in its proper context in relevant legislation. On the
other hand, should it be the intention that section 3 should relate ant to offences referred to in
the Bill, then that should be made clear. The purported application of section 3 to "an offence
involving an act... "serves only to confuse,
12. As regards the provisions of section 5, their effect could have been equally achieved by
simply expanding Schedule S to the Criminal Procedure Act 51 of 1977. However should
section 5 of the Sill be retained, it would be necessary to differentiate between the various
offences created by the Bill: whereas one has no difficulty understanding that a terrorist act
(properly defined) may invite the application of Schedule 6 to Act 51 of 1977, there seems to
be no logical reason why that Schedule (read together with the draconian provisions of
section 60(11 )(a) of that Act) should be invoked where a person is in custody for a lesser
offence in terms of the Bill, such as that created in section 2(7) or 2(5)(a)(ii) (viz. furnishing
food, drink and transport). See Ajuri's case supra. An accused person should not be
required to prove the existence of exceptional circumstances permitting his release on bail,
nor to discharge a burden of proof for what is a relatively minor offence.
13. The idea behind section 7(1) of the Sill is commendable. However, it is not difficult to
envisage disputes arising as to whether or not the National Director has consented to the
institution of a prosecution. As with other legislation (for instance, section 32(7) of the Arms
and Ammunition Act' 75 of 1969 and section 64 of the internal Security Act 74 of 1982), it
should be a requirement that the National Director's consent be given in writing before the
prosecution is instituted,
Chapter 3: '"Investigative Hearings"
14 Section 8 of the Bill is problematic. Among others it raises the following questions:
14.1 In what form should the ex parte application be? May it be made orally? (Section
8(1))
14.2 Should a police officer place information before the National Director in order to
obtain his consent? If so, should such information be furnished in writing? Should it
be on affidavit? (Section 8(2)) 14.3 May the Judge in question receive viva voce evidence? Should he do so? Should he
be required to keep a record of proceedings? (Section 8(?~))
14.4 What level of suspicion on the part of the police officer is required? Should
his suspicion be based on fact? Should it be reasonable? (Section 8(3)(b)) What
evidential burden of proof is required?
14.5 How is the Judge to be informed of the avenues reasonably exhausted? Should
these avenues necessarily have been tried by the police officer in question? If not,
may or should the Judge receive the requisite information from others? Should their
evidence be viva voce or in writing? (Section 8(3)(c))
15. As regards section 9(3) of the Bill, one would like to see the duty placed on the Judge
extended to include the duty to inform the person in question that he is entitled to legal
representation (if needs be, at State expense) forthwith.
16. It follows from the previous paragraph that the Judge's decision in terms of Section 10(1) of
the Bill should not be taken unless the person in question is legally represented (unless he
waives the right to representation, or if he is informed by the Judge that he is to be released
on waning. It should be clear from the aforegoing that section 10(2)(a) is of little assistance
to the person in question, as it is activated too late: an arrested person is constitutionally
entitled to legal representation from the moment of his arrest, and he is furthermore entitled to
be immediately informed of that right.
17. Section 11 of the Bill should offend against the sense of justice of any legs practitioner who
practises in a constitutional democracy. It is true that the Constitutional Court has ruled (with
reference to insolvency inquiries) that provisions such as those contained in section 11(3) of
the Bill may save the constitutionality of the statutory compulsion to answer questions.
However, it is doubtful whether the provisions of section 11 are thus saved, for the following
reasons:
17.1 Section 13(1) of the Bill pointedly applies the provisions of section 189 of Act 51 of
1977 to the examination contemplated by section 6 of the Bill. It would seem to follow
from this that, barring a reliance on the right against self-incrimination, an examinee
may refuse to answer questions on the grounds of the existence of a just excuse". 17.2 It has been held by the Constitutional Court that 'just excuse" would include an
infringement of the examinee's rights as conferred in terms of Chapter 3 of the
Constitution.
17.3 The compulsion contemplated by section 11 of the Bill fails to have due regard to (a)
the spirit, purport and objects of Chapter 3 of the Constitution, (b) the nature and
history of State versus "terrorist" interaction and/or threat viz. that the information
disclosed under Section 11 (or the previous Internal Security Act) once disclosed will
be repeated before a Magistrate / or by "pointing out", and conviction will become
inevitable without constitutionally acceptable police investigation.
18. Considering the fact that the examination process is to be initiated ex parte, and further
bearing in mind the contentious issues raised in the previous paragraph, it would seem
desirable that the Bill should include a provision which requires the proceedings to be
recorded.
19. It is desirable that before the Minister may declare an organisation to be a "terrorist
organisation" public notice should be given and a hearing should take place. However, the
contemplated procedure for final interdict relief, (where there will inevitably be disputes of
fact) is motion application. This must favour the Minister, as Respondent. Motion proceeding
are usually decided on the respondent's version, This is an unsatisfactory situation according
to our experiences in various state of emergency applications against ministers in the 1980's. A more satisfactory procedure would be to hold an expeditious enquiry with viva voce evidence presented to the court.
Chapter 4: "Measures to Combat Terrorism'
20. The procedure contemplated in section 14(3) to (6) is perplexing, to say the least? if it is
considered that the appropriate vehicle for a determination is a final interdict in the High
Court. The obvious remedy for an aggrieved Minister is an expeditious appeal. It seems
indeed unnecessary to allow the Minister the right to approach the High Court for counter-
relief once the interdict has been granted. It would be more logical, and procedurally neater,
if the Minister were to state his case in opposition to the application for an interdict, rather
than ex post facto, This situation is redo lent of the former regime e.g. the Minister would
have given reasons for detention after receiving a letter of demand and would give "better"
and often different reasons on receipt of an application.
Schedule 1
21 As was mentioned above, references in a definition section to definitions contained in other
statutes limits accessibility to the meaning of the legislation in question (in casu, the Bill) This
objection applies a fortiori where references are to often obscure international instruments
such as some ofthose contained in Schedule 1 to the Bill. It would take trained legal
practitioners some considerable time to obtain copies of the instruments in question4 let
alone apply their contents to the provisions of the Bill. It does not seem reasonable that, in a
constitutional democracy, lay persons should be all but denied access to the Bill through the
inaccessibility of the references contained in Schedule 1.
22 In all legislation, but especially in proposed legislation as contentious as the Bill, definitions
should be clear and simple on the face of them, and it is accordingly suggested that the
contents of Schedule I (should such be regarded as appropriate) be properly embodied in the
definition in question.
M A ALBERTUS SC
Chair: Cape Bar Council Chambers
Cape Town
April 2003