WHEREAS the Republic of South Africa is a constitutional democracy where fundamental human rights, such as the right to life, and free political activity are constitutionally enshrined;

AND WHEREAS terrorism, in whichever form, is intended to achieve political and other aims in violent or otherwise unconstitutional manners, and thereby undermines democratic rights and values and the Constitution;

AND WHEREAS the Government of the Republic of South Africa has committed itself in international fora such as the United Nations, the African Union and the Non-Aligned Movement, to the combating of terrorism;

AND WHEREAS the United Nations Security Council Resolution 1373/2001, binding on all Member States of the United Nations, as well as the African Union Convention for the Prevention and Combating of Terrorism, to which the Republic of South Africa is a Party, require Member States to become Party to international instruments on counter-terrorism, as soon as possible;

AND WHEREAS the Republic of South Africa has already become Party to the following counter-terrorism Conventions:

AND WHEREAS the Republic of South Africa desires to become Party to the following remaining instruments not yet ratified or acceded to:

AND WHEREAS there is a need in the Republic of South Africa to ensure that national laws gives effect to international instruments relating to terrorism, in respect of the creation of specific offences, and to ensure that law enforcement institutions in the Republic of South Africa have adequate powers to address terrorism in the Republic;

AND WHEREAS the United Nations Security Council from time to time passes resolutions under Chapter VII of the United Nations Charter, requiring Member States to combat terrorism, including taking effective measures to prevent and suppress the financing of terrorist acts, and the freezing of funds, assets or economic resources of persons who commit terrorist acts;

AND WHEREAS national laws do not meet all the international requirements relating to the combating of terrorism;

AND WHEREAS terrorism is an international problem, which can only be effectively addressed by means of international co-operation;

AND WHEREAS international law, and in particular international humanitarian law, recognizes and prescribes struggles waged by peoples in accordance with the principles of international law for their liberation or self-determination, including armed struggle against colonialism, occupation, aggression and domination by foreign forces;

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 REALIZING the importance to enact appropriate domestic legislation necessary to implement the provisions of relevant conventions and protocols, to ensure that the jurisdiction of the Republic of South Africa’s 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;

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;

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

1. Definitions

Offence of terrorism and offences connected to terrorist acts

2. Terrorism

3. Offences connected to terrorist act

5. Hijacking of an aircraft

6. Endangering safety at airports

7. Endangering safety of maritime navigation

8. Bombing offences

9. Taking of hostages

10. Protection of internationally protected persons

11. Offences related to fixed platforms

12. Offences related to nuclear material or facilities

13. Financing offences

14. Dealing with property associated with terrorism

15. Offence relating to weapons of mass destruction

16. Offence relating to substances

18. Hindering and obstructing police officer

19. Attempt, conspiracy and influencing another person to commit offence

20. Penalties

21. Declarations of forfeiture on conviction

22. Interest of third parties

23. Evidence in respect of declarations of forfeiture and certain interests

24. Jurisdiction in respect of offences

25. Consent of National Director to institute proceedings

26. Cordoning off, stop and search of vehicle and person

27. Investigating powers

28. Interdict

29. Search and seizure of terrorist property

31. Parliamentary Supervision

32. Amendment and repeal of laws

33. Short title and commencement

1. In this Act, unless the context indicates otherwise –

"enterprise" includes any individual, partnership, corporation, association, or other juristic person or legal entity, and any union or group of individuals associated in fact, although not a juristic person or legal entity;

‘‘Director’’ means a Director of Public Prosecutions as defined in section 1 of the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998);

"explosive or other lethal device" with reference to section 8(1) means—

1. an explosive or incendiary weapon or device which is designed or manufactured, or has the capability, to cause death , serious bodily injury or material damage; or
2. a weapon or device which is designed or manufactured, or has the capability, to cause death, serious bodily injury or material damage through the release, dissemination or impact of toxic chemicals, biological agents or toxins or similar substances or radiation or radioactive material;

"fixed platform" means an artificial island, installation, or structure permanently attached to the sea-bed for the purpose of exploration or exploitation of resources or for economic purposes;

(a) a Head of State, including any member of a collegial body performing the functions of a Head of State under the constitution of the State concerned, a Head of Government or a Minister for Foreign Affairs, whenever any such person is in a foreign State, as well as members of his family accompanying him or her;

(b) any representative or official of a State or any official or other agent of an international organization or intergovernmental organization or of an intergovernmental character who, at the time when and in the place where a crime against him or her or his or her official premises, his or her private accommodation or his or her means of transport is committed, is entitled, pursuant to international law to special protection from any attack on his or her person, freedom of dignity, as well as members of his or her family forming part of his or her household; and

(c) if in any proceedings in a court of law any question arises as to whether or not any person is pursuant to international law entitled to special protection from any attack on his or her person, freedom or dignity, a certificate under the hand or issued under the authority of the Director-General of the Department of Foreign Affairs, stating any fact relating to that question, is prima facie evidence of that fact;

‘‘judge’’ means a Judge of the High Court;

"military forces of the State" means the armed forces of the State which are organized, trained and equipped under its internal law for the primary purpose of national defence or security, and persons acting in support of those armed forces who are under their formal command, control and responsibility;

‘‘Minister’’ means the Minister for Safety and Security;

‘‘National Director’’ means the National Director of Public Prosecutions appointed in terms of section 179(1) of the Constitution;

"nuclear material", with reference to section 12, means plutonium except that with isotopic concentration exceeding 80% in plutonium-238; uranium-233; uranium enriched in the isotopes 235 or 233; uranium containing the mixture of isotopes as occurring in nature other than in the form of ore or ore-residue; any material containing one or more of the foregoing;

"place of public use" includes those parts of any building, land, street, waterway or other location that are at any time accessible or open to members of the public, whether continuously, periodically or occasionally;

‘‘police officer’’ means a member of the South African Police Service as defined in the South African Police Service Act, 1995 (Act No. 68 of 1995), and includes a member of the South African National Defence Force employed in co-operation with the South African Police Service in terms of section 201(2)(a) of the Constitution in the prevention and combating of crime and maintenance and preservation of law and order within the Republic, as contemplated in section 19(1) of the Defence Act, 2002 (Act No. 42 of 2002);

"property" means real or personal property of any description, and whether tangible or intangible and includes—

(a) an interest in any real or personal property;

"property associated with terrorism" means property owned or controlled by or on behalf of, or at the direction of —

(b) entities owned or controlled directly or indirectly by such persons;

(a) that is committed in whole or in part with the intention of intimidating the public, or a segment of the public, with regard to its security, including its economic security, or compelling a person, a government or a domestic or an international organization to do or to refrain from doing any act, whether the public or the person, government or organization is inside or outside the Republic; and

(b) that—

1. endangers a person's life, other than the life of the person taking

1. a system used for, or by, a transport system; or

(vii) causes or may cause damage to natural resources or to the environmental or cultural heritage; and

(c) includes—

(d) does not include—

1. an act or omission that is committed by armed forces during an armed conflict, as those terms are understood in international humanitarian law and that, at the time and in the place of its commission, is in accordance with international law applicable to the conflict, or the activities undertaken by military forces of a state in the exercise of their official duties, to the extent that those activities are governed by other rules of international law;
2. action, if such action is lawful advocacy, protest, dissent or industrial action;

Exact extract from the AU Convention on the Prevention and Combating of Terrorism (proposed amendments to fit it in the Bill are indicated.)

(a) that is committed—

(b) that—

1. endangers a person's life, other than the life of the person taking

1. a system used for, or by, a transport system; or

(vii) causes or may cause damage to natural resources or to the environmental or cultural heritage; and

(c) includes—

4. does not include-

1. the struggle waged by peoples in accordance with the principles of international law for their liberation or self-determination, including armed struggle against colonialism, occupation, aggression and domination by foreign forces; and

"weapon of mass destruction" means any weapon designed to kill, harm or infect people, animals or plants through the effects of a nuclear explosion or the toxic properties of a chemical warfare agent or the infectious or toxic properties of a biological warfare agent, and includes a delivery system exclusively designed, adapted or intended to deliver such weapons as contemplated in the Non-Proliferation of Weapons of Mass Destruction Act, 1993 (Act No. 87 of 1993).

(2) For the purposes of this Act a person has knowledge of a fact if-

(a) the person has actual knowledge of that fact; or

(b) the court is satisfied that —

(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—

2. (1) Any person who-

(a) commits or threatens to commit a terrorist act;

(b) engages in a terrorist act; or

is guilty of terrorism.

(2) A person commits an offence under subsection (1) even if the terrorist act does not occur.

3. (1) Any person who-

(a) provides or receives training;

(b) recruits any person;

(c) collects or makes a document,

(d) possesses a thing,

connected with the preparation for, the engagement of a person in, or assistance in a terrorist act or a Convention offence and who knows or ought reasonably to have known that such training, thing or document is so connected, is guilty of an offence.

(2) A person commits an offence under subsection (1) even if the terrorist act does not occur or Convention offence is not committed.

4. (1) 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 or Convention offence, for the purpose of enabling the person to facilitate or carry out any terrorist act or Convention offence, is guilty of an offence: Provided that, if a person reports the presence of such a person as soon as possible in accordance with section 17, he or she shall not be liable for prosecution under this subsection.

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

(a) a terrorist act or Convention offence is actually facilitated or carried out;

(3) A terrorist act or Convention offence is facilitated whether or not—

(c) any terrorist act or Convention offence was actually carried out.

5. Any person who, unlawfully, by force or threat thereof, or by any other form of intimidation, seizes or exercises control of an aircraft with the intent to—

(d) cause that aircraft to deviate from its flight plan,

commits an offence.

6. Any person commits an offence if he or she unlawfully and intentionally, and by using any device, substance or weapon-

(a) performs an act of violence against a person at an airport serving civil aviation which causes or is likely to cause serious injury or death; or

(b) destroys or seriously damages the facilities of an airport serving international civil aviation or aircraft not in service located thereon or disrupts the services of the airport;

if such an act endangers or is likely to endanger safety at that airport.

7. Any person commits an offence if that person unlawfully and intentionally—

8. 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 with the intent to cause —

(a) death or serious bodily injury; or

(b) extensive damage to, or destruction of such a place, facility or

commits an offence.

9. Any person, who—

(a) detains any other person, hereinafter referred to as a hostage; and

10. A person who—

1. murders or kidnaps an internationally protected person;
2. executes a violent attack upon the official premises, the private accommodation or the means of transport of an internationally protected person likely to endanger his person or liberty; and

11. Any person who unlawfully and intentionally—

commits an offence.

12. Any person who, intentionally

(b) threatens to-

9. use nuclear material to cause death or serious injury to any person or substantial property damage, or

commits an offence.

(a) collects property;

(d) makes available any financial or other related service,

with a view that the property, or financial or other related service, as the case may be, be used in whole or in part to commit an offence referred to in sections 2, 5, 6, 7, 8, 9, 10 ,11 or 12, is guilty of an offence.

14. (1) Any person who—

(a) directly or indirectly―

1. makes available any financial or other related services; or
2. economically supports such persons or entities-

(b) any person within the Republic; or

is guilty of an offence.

16. (1) (a) An person who —

(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 whatsoever);

(b) Any person who 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, is guilty of an offence.

(2) 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).

(3) 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.

17. (1) Any person who has reason to suspect that any other person intends to commit or has committed any terrorist act or Convention offence and any person who is aware of the presence at any place of any other person who is so suspected of intending to commit or having committed such an offence, must report such suspicion and presence of that person at any place or cause such suspicion or presence to be reported to any member of the police.

(2) Any person who fails to comply with the provisions of subsection (1), is guilty of an offence.

18. Any person who—

(b) willfully hinders or obstructs a police officer in the exercise of those powers,

is guilty of an offence.

19. Any person who—

20. (1) Any person who is convicted of an offence referred to in—

(c) section 16(1)(a) or (b), is liable–

1. in the case of a sentence to be imposed by a High Court or a regional court, to a fine or to imprisonment for a period not exceeding 10 years, or to both a fine and such imprisonment;

(d) section 17(2) and section 18, is liable–

(i) in the case of a sentence to be imposed by a High Court or a regional court, to a fine or to imprisonment for a period not exceeding 5 years, or to both a fine and such imprisonment;

(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

(2) The court which makes a declaration of forfeiture of property referred to in subsection (1), must 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) must, if it was seized under section 29, 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

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

(ii) 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 —

(ii) that the applicant has an interest in the property —

(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.

23. In order to make a declaration of forfeiture or to determine any interest under section 22(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.

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

(b) the offence was committed—

(i) in the territory of the Republic;

(iii) by a citizen of the Republic or a person ordinarily resident in the Republic;

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

(2) Whenever a person is taken into custody for the alleged commission of any offence under this Act, to ensure the person’s presence for the purpose of prosecution or extradition to a foreign State, the National Director must be notified immediately by the police officer, or any other law enforcement agency through which the custody is affected.

(3) Upon being notified in terms of subsection (2), the National Director must promptly notify any foreign State that might have jurisdiction over the offence in question, either directly or through the Secretary-General of the United Nations-

1. of the fact that the person is in custody;
2. of the circumstances that justify the person’s detention; and
3. whether he or she intends to prosecute the person,

with a view to the surrender of such person to a foreign State for prosecution by that State, should the National Director decline to prosecute.

25. (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 referred to in sections 2, 5 to 13 and 15, 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.

26. (1) If, on written request under oath to a judge in chambers 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 cordoning off, and stopping and searching of vehicles and persons with a view to preventing such acts, in any area, and such warrant applies for the period specified therein, which period may not exceeding 10 days.

(2) Under such warrant any police officer who identifies himself or herself as such, may cordon off the specific area for the period specified and 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.

(5) The provisions of this section shall not be construed as affecting the rights of any police officer or law enforcement officer to use any other power in any other law in respect of search or seizure.

27. (1) Whenever the National Director has reason to believe that any person may be in possession of information relevant to the commission or intended commission of an alleged offence in terms of this Act, or any person or enterprise may be in possession, custody or control of any documentary material relevant to such alleged offence, or in respect of any property associated with terrorism he or she may, prior to the institution of any civil or criminal proceeding, under written authority direct that a particular Director of Public Prosecutions or a Special Director of Public Prosecutions, shall have, in respect of a specific investigation, the power to institute an investigation in terms of the provisions of Chapter 5 of the National Prosecuting Authority Act, 1998(Act No. 32 of 1998), relating to the commission or intended commission of an alleged offence in terms of this Act or the possession, custody or control of any documentary material relevant to such alleged offence or of any property associated with terrorism.

(2) For purposes of subsection (1), a reference in the said Chapter 5 to —

28.(1) A High Court may, on application by the National Director to a judge in chambers, make an order prohibiting any person from engaging in any conduct, or obliging any person to cease any conduct, concerning property related to terrorism.

(2) An order made under subsection (1) may include an order to freeze any such property.

(3) A High Court may make an interim order under subsection (1) pending its final determination of an application for such an order.

29. (1) If a police officer believes on reasonable grounds that there is in any building, receptacle or place any property contemplated in sections 13 and 14, he or she may request a judge to issue a warrant for the search for, and seizure of, such property.

(aa) its derivation or its intended use is further investigated; or

(3) A 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 must 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 subsection (5) —

(7) The provisions of this section shall not be construed as affecting the rights of any police officer or law enforcement officer to use any other power in any other law in respect of search or seizure.

30. (1) For purposes of this section "terrorist act" shall include any Convention offence.

(2) The President-in-Cabinet may, by Proclamation in the Gazette, and other appropriate means of publication, give notice that the Security Council of the United Nations, under Chapter VII of the Charter of the United Nations has identified certain persons or entities as being-

1. persons who commit, or attempt to commit, terrorist acts or participate in or facilitate the commission of terrorist acts;
2. entities owned or controlled directly or indirectly by such persons; or
3. persons and entities acting on behalf of, or at the direction of such persons and entities.

31. (1) A copy of any proclamation given under section 30(2), shall be laid upon the Table in Parliament by the President as soon as possible after the publication, or issuing thereof, as the case may be.

(2) The National Assembly may make any recommendation to the President in connection with any such proclamation.²²

32. The laws set out in the Schedule are hereby amended or repealed to the extent indicated in the third column of that Schedule.

33. This Act is called the Counter-Terrorism Act, 2003, and comes into operation on a date determined by the President by proclamation in the Gazette.

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.

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.

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.

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.