THE NATIONAL PROSECUTING AUTHORITY OF SOUTH AFRICA

MEMORANDUM

TO : THE PORTFOLIO COMMITTEE ON SAFETY AND SECURITY

FROM : THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS

SUBJECT : ANTI-TERRORISM BILL, 2003

DATE : 26 JUNE 2003

1. Introduction

The National Prosecuting Authority (NPA) wishes to thank the Committee affording us the opportunity to comment on the Bill and to address the Committee in this regard. The NPA was involved in assisting Dr Jacobs of the South African Police Service (SAPS) in finalising the original draft of the Bill which was submitted to the South African Law Commission.

2. Introduction and enactment of Anti-Terrorism legislation


2.1 In principle the National Prosecuting Authority(NPA) supports the introduction and the enactment of Counter-Terrorism legislation.


2.2 The phenomenon of terrorism is not limited to specific countries or regions. It is prevalent throughout the world and poses serious dangers to the stability and security of each country, specific regions and the world. In South Africa acts of terrorism include, amongst others, bomb attacks in the Western Cape which are directed at specific groups, our courts, and the public at large, and recently, certain "Boeremag" activities. The NPA therefore supports the world's and our Government's determination to eliminate terrorism in all its forms and manifestations.

2.3 Furthermore, as was pointed out by SAPS in its briefing, South Africa ratified and acceded to various international and regional conventions and/or instruments pertaining to counter-terrorism and is therefore obliged to enact legislation in line with the requirements and undertakings set out in such counter-terrorism instruments. The most important of these instruments are the Organisation of African Union Convention on the Prevention and Combating of Terrorism which was ratified by South Africa on 11 September 2002; and the International Convention on Terrorist Financing which was ratified by South Africa on 24 March 2003. In the first-mentioned Convention each States Party, inter alia, undertakes to ratify all international instruments on terrorism and to, within one year, review its national laws and establish criminal offences for terrorist acts as defined in the Convention and make such acts punishable by appropriate penalties. The last-mentioned Convention obliges States Parties to, in line with the provisions of the Convention, apply measures in order to suppress terrorists financing.

3. Structure of the Bill


3.1 The NPA assisted SAPS in finalising a Bill more in line with the Bill proposed by the South African Law Commission(Commission). Clause 1 of the Commission's Bill contains a comprehensive definition of "terrorist act" and clauses 3 to 18 create, in line with various international instruments, specific offences. These offences relate, amongst others, to the participation in and facilitation of terrorist acts and the harbouring and concealing of terrorists and terrorist activities; the membership of a terrorist organisation and proscription; the hijacking of an aircraft; endangering the safety of maritime navigation; the detonating of explosives; the taking of hostages; the murdering or kidnapping of internationally protected persons; fixed platforms; the possession, design and use of radioactive material; and the use of weapons of mass destruction. We have noticed that the Bill before the Committee is structured quite differently. In clause 1 "terrorist act" is defined as an unlawful act committed in or outside the Republic which is–

"(a) a convention offence; or

(b) likely to intimidate the public or a segment of the public;".

A "convention offence" means an offence listed in Schedule 1 of the Act.

3.2 Although the present structure may be a neat way of capturing all the offences contained in the international instruments and shortens the Bill considerably, the opinion is held that the proposed structure may lead to vagueness, uncertainty and inaccuracy. In this regard, the following:

(a) To illustrate the inaccuracy of the proposed structure one only needs to refer to the provisions of Schedule 1(d) and clause 3. The former makes the murdering, kidnapping or attacking of an internationally protected person a terrorist act and thereby an offence, whereas the latter provides that the same conduct must be regarded as an aggravating circumstance.

(b) Paragraph (b) of the definition of "terrorist act" is extremely wide, vague and overlaps with the provisions of the Intimidation Act, 1982(Act 72 of 1982). In terms of the last-mentioned Act a person only commits acts of intimidation–

(i) if such acts are committed "without lawful reason" and with a specific intent; or

(ii) under circumstances where the alleged accused person "acts or conducts himself in such a manner or utters or publishes such words that it has or they have the effect, or that it might reasonably be expected that the natural and probable consequences thereof would be, that a person perceiving the act, conduct, utterance or publication fears for his own safety or the safety of his property or the security of his livelihood, or for the safety of any other person or the safety of the property of any other person or the security of the livelihood of any other person.".

Furthermore section 1A(1) of the Intimidation Act, 1982, provides as follows:

" Any person who with intent to put in fear or to demoralize or to induce the general public, a particular section of the population or the inhabitants of a particular area in the Republic to do or to abstain from doing any act, in the Republic or elsewhere–

(a) commits an act of violence or threatens or attempts to do so;

(b) performs any act which is aimed at causing, bringing about, promoting or contributing towards such act or threat of violence, or attempts, consents or takes any steps to perform such act;

(c) conspires with any other person to commit, bring about or perform any act or threat referred to in paragraph (a) or act referred to in paragraph (b), or to aid in the commission, bringing about or performance thereof; or

(d) incites, instigates, commands, aids, advises, encourages or procures any other person to commit, bring about or perform such act or threat,

shall be guilty of an offence and liable on conviction to a fine which the court may in its discretion deem fit or to imprisonment for a period not exceeding 25 years or to both such fine and such imprisonment.".

The above provisions clearly spell out what acts constitute acts of "intimidation" and the elements of the offences. On the other hand, paragraph (b) of the definition of "terrorist act", nor any other provision in the Bill, gives an indication as to the meaning of "intimidate". Furthermore, the word "likely" also contributes to the vagueness of the provision.

3.3 The NPA holds the view that the definition of "terrorist act" or the meaning of "terrorism" is the focal point of any successful counter-terrorism legislation. However, we are also of the view that a reference to the various international instruments is necessary. Therefore, it is proposed that–

(a) the preamble to the Bill should refer to all the conventions listed in Schedule 1 of the Bill;

(b) a comprehensive and clear definition of "terrorist act" should be included in clause 1 of the Bill;

    1. specific offences, as listed in Schedule 1, should be included in the Bill as separate clauses or a combined clause;
    2. acts of intimidation be excluded from the Bill, since the Intimidation Act, 1982, adequately deals with such offences and also prescribes adequate punishment for the contravention thereof.

4. Ad clause 2(1)

In the Commission's Bill the penalty for the offence is prescribed as "is liable on conviction to imprisonment for life". Thereby the Legislature emphasises the seriousness of the offence and the intention is that the courts must seriously consider the imposition of imprisonment for life and only if such a sentence is not appropriate, may the court consider another imprisonment sentence as contemplated in section 283(1) of the Criminal Procedure Act, 1977(Act 51 of 1977)(CPA). Section 283(1) provides that a "person liable to a sentence of imprisonment for life or for any period, may be sentenced to imprisonment for any shorter period, and a person liable to a sentence of a fine of any amount may be sentenced to a fine of any lesser amount.". The opinion is held that the current wording of the Bill, and in particular the words "which may include imprisonment for life" do not portray the same intention and do not have the same impact as the first-mentioned wording. The NPA therefore recommends that the Portfolio Committee should retain the wording of the penalty clause as proposed by the SA Law Commission.

5. Ad clause 3

The opinion is held that it is somewhat prescriptive to provide that a court "must" treat such a fact as an aggravating one. The so-called internationally protected person may have been assaulted, because of his own aggression or his or her personal car may have been stolen or damaged or involved in a collision. Although the court will weigh all facts before passing sentence, it would not give effect to the legislature’s prescription. By inserting words such as "may, depending on the circumstances", will probably rectify the situation.

6. Ad clause 2(5)(a)(i)

The opinion is held that the wording in clause 2(5)(1)(a)(i), namely, to fail to report "to the authorities the presence of a member of a terrorist organisation", is to vague. Who are the "authorities"? Where must the member be present before the duty to report kicks in? It is proposed that the meaning of "the authorities" and "presence" be spelled out.

7. Ad clause 2(5)(a)(iii)

This clause is also vague. What is the meaning of "benefit"? If, for example, a person is married to such a member of a terrorist organisation, will maintenance received or any benefit emanating from such relationship be regarded as a "benefit"? Such benefit must relate to the activities of the terrorist organisation.

8. Ad clause 6, 8, 9 and 12

8.1 The opinion is held that the judiciary should not be involved in these applications. Similarly to the provisions of Chapter 5 of the NPA Act, 1998, it is recommended that these applications should be considered by Directors of Public Prosecutions or, alternatively, the National Director, or persons authorised thereto by the National Director. See for example section 72 of the Organised Crime Act, 1998(Act 121 of 1998), for a similar provision.

8.2 It appears that clauses 6, 8, 9 and 12 are applicable to police officers only. It is understood that the Directorate of Special Operations will generally not investigate terrorism, however, the possibility exists that while investigating serious organised crime, a terrorist network may be discovered or uncovered or it may appear that such terrorist acts were committed in an organised fashion. The implication is then that the DSO will have to pass the matter on to SAPS. The opinion is held that these clauses should be amended in order to provide for the possible involvement of members of the DSO.

9. Ad clause 7(1)

The President recently appointed a Special Director in the Office of the National Director who will, amongst others, be responsible for terrorist prosecutions. It is therefore recommended that this Special Director should also be empowered to authorise the institution of terrorist prosecutions. The following amendment to clause 7(1) is proposed:

To amend clause 7(1) by the addition of the following words:

"or a Director authorised in writing thereto by the National Director".

Clause 7(2) and (3) should be amended accordingly.

10. Ad clauses 11 and 12

The wording of these clauses and in particular the reference to "a thing", is inelegant. It is suggested that the provisions should rather refer to an object, article, book or document. See for example section 29 of the NPA Act.


MR BT NGCUKA

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS