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1. Following our submission which was handed to the Parliamentary Portfolio Committee on 30 April 2003, and the reference therein that we intended a further supplementary submission, we hereby make the following supplementary submission in relation to specific aspects of the Bill.
2. The fundamental problem regarding the Bill is the issue of the definition of "Terrorist Act". However, we include other suggested amendments.

THE PREAMBLE

3. Without hampering the agenda of government, regarding state security, and its international obligations, it is our view that the preamble to the Bill can be significantly modified to suit a less judgmental position, in respect of international ideological conflicts. In its present form, the preamble entails a value judgment. It blurs the distinction between the cause of legitimate freedom fighters, and those who undermine and threaten the very foundation of democracy. It is our impression that it is the intention of the legislature to encapsulate the conduct of the latter rather than the former.
4. A further justification for watering down the preamble significantly is that, in the context of judicial interpretation of the statute, if there is any doubt, uncertainty or vagueness in relation to the definition of "Terrorist Act", basic legal principles relating to statutory interpretation require the presiding judicial officer to take into consideration the preamble of the Act. Therefore the preamble is not without any effect upon the law.
5. In our submission the suggested preamble should be as follows:

1. WHEREAS there is a worldwide occurrence of acts of terrorism;
2. AND WHEREAS terrorism is an international problem which can only be eradicated with the full and committed co-operation of all member states of the United Nations and the African Union; and
3. AND WHEREAS terrorism presents a serious threat to the security of the Republic and the safety of the public;
4. AND WHEREAS terrorism presents a serious threat to the very foundation of democracy in the Republic and other member states of the United Nations;
5. 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;
6. 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.;
7. AND WHEREAS the Republic shares the commitment to prevent and combat terrorism with the African Union and the Non-Aligned Movement expressed in various resolutions, as well as the Organisation of African Unity’s Convention on the Convention and Combating or Terrorism;
8. AND MINDFUL that the Republic, has, since 1994, become a legitimate member of the community of nations and is committed to bringing justice to persons who commit such acts; and to carrying out its obligation in terms of the International Conventions on Terrorism;
9. 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;"

1. The proposed preamble above will be consistent with the narrower definition of terrorist activity as is apparent from further submissions made herein. It is our view that the present definition is too broad, and for the reasons set out in our earlier submission, inappropriate.

CHAPTER 1 : INTERPRETATION

2. Given the far reaching implication of this Act, the definition of "accountable institution" should be set out fully in this section. In other words, the "person referred to in Schedule 1 to the Financial Intelligence Centre Act, 2001 (Act No. 38 of 2001)", should be fully reiterated here, so as to give the reader a full and clear picture of what an accountable institution is.
3. It is in any event a rule of law that a person must be able to predict with reasonable clarity and certainty the nature and ambit of the law that is applicable to his or her conduct. Particularly in the context of criminalising conduct.
4. It is our submission that the definition of "convention offence" should be deleted in its entirety. This is because we propose, that the convention offences be listed with specificity in this Act, under the definition of "Terrorist Act".
5. The definition of "Terrorist Act" should be altered significantly. Its present ambit is objectionable for the reasons set out in our previous submission.
6. We would submit that the first category which relates to "a convention offence" should not be simply stated as such. The full and precise list of the convention offences should be enumerated here, so as to comply with the rule of law regarding certainty and clarity of any offence stipulated by statute.
7. The second portion of the definition "which is likely to intimidate the public of a segment of the public" is unhelpful. It is vague and overlaps with other statutory and common law offences. It leads to an unintended broader and inappropriate construction to terrorist activities. It is our view that section (b) of the definition of "Terrorist Act" should be removed in its entirety and replaced with two other segments (b) and (c), which we suggest herewith.
8. The new proposed sections what we suggest, after having listed fully the convention offences under (a) are the following:

1. such conduct is aimed at achieving a process of democratisation where such is non-existent;
2. such conduct is aimed at redressing the conduct of invasion by a foreign invader, against the will of the majority of its people;
3. such conduct is aimed at redressing the conduct of a foreign invader who has unlawfully invaded the land of a nation and usurped or attempts to usurp its land, property, national resources and economic structure;
4. such conduct is aimed at redressing recalcitrant conduct on the part of a state, organisation, government or entity which is recalcitrant to any of the United Nations Resolutions, binding upon it."

1. It is our submission that, knowledge and mens rea must be imputed to section 2(1). All other sub-sections of section 2 contain the element of mens rea except for sub-section (1).
2. In the light of elementary statutory interpretation principles, the exclusion in sub-section (1) of mens rea implies that the legislature intends to criminalise conduct without the need of proving mens rea. This appears to be an oversight in the draft Bill.
3. We would submit that the word "knowingly" be added after the words "any person who" in sub-section (1) of section 2.
4. The further justification for this is that, if someone unwittingly is manipulated to aid, advise, or assist a terrorist conduct, without the knowledge that he or she is so doing, his or her conduct should not attract criminal penalty.
5. In sub-section (3) in order to redress some of the concerns we have set out in our previous submission regarding the immediate disbanding of a "terrorist organisation" which has the prejudice of not allowing its members to pursue its defence, the following should be added after the words "not exceeding 15 years":

"provided that, if the declaration of an organisation to be a terrorist organisation is being challenged in a court of law, whether by way of appeal or review or whatever procedure, whilst that challenge is pending, it shall not be an offence for a member to remain as such until the final conclusion of that legal process."

 

 

6. In sub-paragraph (5)(i) the phrase "harbours or fails to report to the authorities the presence of a member of a terrorist organisation" is problematic from an interpretation point of view. Where and when is the presence contemplated. What is the vicinity? Does it include a house, a street, a suburb, a town, a country? Perhaps a suggested replacement for (5)(i) would be as follows:

"harbours or fails to report to the authorities the presence of a member of a terrorist organisation, within the immediate precinct of a person’s home including such person’s property and the street upon which the property is situated, with a distance of not more than 100 metres radius of such a person’s property."

 

 

7. In sub-section (5)(ii) the words "food, drink" should be deleted.
8. In sub-section (5)(iii) after the word "organisation" the following should be added: "with the aim of committing any act of terrorism".
9. Due to the seriousness of the nature of the offences, and the complex nature of facts that usually encompass these types of cases, it is strongly recommended that any trial in relation to any offence being prosecuted under the Act be accompanied with two assessors, particularly in the light of the potential life sentence. A suggestion sub-section (8) to section 2 would be as follows:

"(8) Any conduct prosecuted in terms of this Act shall be heard by a judge of the High Court, duly assisted by two assessors, as contemplated in the Criminal Procedure Act."

 

 

10. As far as bail is concerned, we are of the view that not all acts or conducts prosecuted in terms of the Act should be considered a schedule 6 offence. There are varying degrees of conducts. For instance, the actual conduct of a "terrorist" of planting a bomb which causes death is a more serious one which attracts a life penalty. On the other hand, in terms of the Act, the continued membership of an accountable institution by a person, whether or not he commits any violent act causing loss of life, is an offence which carries with it a lesser penalty of ten years. The latter conduct, in our view, is not one which justifies it being referred to as a schedule 6 offence.
11. The rationalisation of referring matters to schedule 6, by the legislation has always been that they were serious, that the accused endangered witnesses and the like. The suggested amendment to section 5 would be as follows:

"5. Where an accused is being charged with a terrorist act which either caused loss of life, or was likely to cause the loss of life, the provisions relating to bail contained in the Criminal Procedure Act, 1977 (Act 51 of 1977) apply as if the accused were charged with an offence referred to in schedule 6 to that Act."

 

 

ORDER FOR GATHERING INFORMATION

 

 

12. In section 8(4)(b) the following should be added after the words "until excused by the presiding judge":

"provided that the person who is required to remain in attendance shall at all times thereto enjoy the right to be accompanied by his or her legal representative of choice, and the presiding judge shall ensure that this right to legal representation is so communicated to the accused."

WARRANT FOR ARREST

 

 

13. In section 9(3) we suggest that after the words "without delay" the words "within 48 hours" be inserted.

OBLIGATION TO ANSWER QUESTIONS AND PRODUCE THINGS

14. In section 11(3)(b), it is our view that the words "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" render the entire section unconstitutional in that they compel an accused to provide self-incriminating evidence.
15. No accused may be obliged to provide self-incriminating evidence, unless the immunity exists in its totality. In our submission, a deletion of the above phrase between the words "other" and "perjury" will render sub-section 3 unobjectionable, from a constitutional point of view.

COMBATING SUPPORT FOR TERRORIST ORGANISATIONS

Declaration of Terrorist Organisation

16. In our submission, the safeguards relating to section 14(2) must also be included in section 14(1). The existing section 14 should be deleted. Our suggested section 14 should be as follows:

1. There are reasonable grounds for believing that the organisation:

1. has claimed responsibility for a terrorist act; or
2. has committed a terrorist act; or
3. has endangered the security or territorial integrity of the Republic of another country; or
4. is a terrorist organisation in terms of a decision of the Security Council of the United Nations."

1. In making the representation to the Minister in terms of sub-section (2) above, the organisation shall be entitled to the rights both substantive and procedural in all administrative matters, and the 60-day period shall commence after the Minister has complied with his obligations in terms of such administrative procedures.
2. Upon receipt of the submission by the organisation, the Minister may then, if reasonably necessary, call for an oral hearing and, subsequent to that hearing then decide whether that organisation must be declared a terrorist organisation.
3. In the event that the Minister is unable to give written and effective notice, after all reasonable endeavours to do so, the Minister may publish his intention to declare the organisation a terrorist organisation, as contemplated, in sub-section (2) above, provided that such notice shall be published in the Government Gazette and one English and Afrikaans issue of the local newspaper within which the Minister reasonably believes, that the organisation is resident."

1. It is our view that, the relevant provisions in section 14 which make available an opportunity for the organisation to obtain an interdict are redundant. They need not be stated. They operate automatically by law.

DETERMINATION BY ACCOUNTABLE INSTITUTION

2. In section 15 we would suggest that the word "must" after the words "accountable institution" be replaced with "is required to take reasonable steps to".
3. In the same section after the words "must report that fact" add the following "within 7 days of acquiring knowledge thereof" and by deleting the word "forthwith".

DUTY TO REPORT ON PROPERTY OF TERRORIST ORGANISATION

4. In section 16(1) after the words "as soon as the person or accountable institution learns of this fact" add the following: "and in any event not later than 7 days thereafter".
5. These 7-day periods simply make provision for getting the necessary authority within the organisation such as speaking to the Chief Executive Officer and, if necessary, holding the necessary board meetings. Seven days includes Saturdays and Sundays because it is referred to in the Statute.

CHAPTER 5 : GENERAL PROVISIONS

6. It is our submission that the regulations passed by the Minister in terms of section 20 must be subject to it being tabled in Parliament. Add the words "thirty days prior to the proclamation the Minister must table the Regulations in Parliament", as a beginning to section 20.

CONCLUSION

7. We thank you for availing us the opportunity to make this submission.

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The Secretary

UUCSA

20 May 2003