19 SEPTEMBER 2003

19 SEPTEMBER 2003

STATUS: DRAFT WORKING DOCUMENT

BILL

To provide for measures to prevent and combat terrorism, to provide for offences related to terrorist activities, to give effect to international counter-terrorism instruments, and to provide for matters connected therewith.

PREAMBLE

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:

(a) The Convention on Offences and Certain Other Acts Committed on Board Aircraft, signed at Tokyo on 14 September 1963. The Republic became a Party thereto, by accession on 26 May 1972.

(b) The Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on 16 December 1970. The Republic became a Party thereto by ratification on 30 May 1972.

(c) The Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on 23 September 1971. The Republic became a Party thereto by ratification on 30 May 1972.

(d) The Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents, adopted by the General Assembly of the United Nations on 14 December 1973. The Republic became a Party thereto by accession on 23 September 2003.

(e) The International Convention Against the Taking of Hostages, adopted by the General Assembly of the United Nations on 17 December 1979. The Republic became a Party thereto by accession on 23 September 2003.

(f) The Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, signed at Montreal on 24 February 1988. The Republic became a Party thereto by accession on 21 September 1988.

(g) The Convention on the Marking of Plastic Explosives for the Purpose of Detection, signed at Montreal on 1 March 1991. The Republic became a Party thereto by accession on 1 December 1999.

(h) The International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on 15 December 1997. The Republic became a Party thereto by ratification on 1 May 2003.

(i) The International Convention on the Suppression of the Financing of Terrorism, adopted by the United Nations General Assembly on 9 December 1999. The Republic became a Party thereto by ratification on 1 May 2003.

(j) African Union Convention on the Prevention and Combating of Terrorism, adopted by the African Union at Algiers on 14 July 1999. The Republic became a Party thereto by ratification on 7 November 2003.

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

(a) The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1988.

(b) The Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms on the Continental Shelf, 1988.

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 activities, and the freezing of funds, assets or economic resources of persons who commit terrorist activities;

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 activities 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 activities; 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 activities; 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:—

INDEX
CHAPTER 1

DEFINITIONS AND INTERPRETATION

1. Definitions

CHAPTER 2

OFFENCES AND PENALTIES

PART 1

Offence of terrorism and offences connected to terrorist activities

2. Offence of terrorism

3. Offences connected with terrorist activities

PART 2

Convention offences

4. Hijacking of an aircraft

5. Endangering safety of maritime navigation

6. Bombing offences

7. Taking of hostages

8. Protection of internationally protected persons

9. Offences related to fixed platforms

10. Financing offences

PART 3

Other offences

11. Harbouring or concealment of persons committing offences

12. Duty to report presence of persons suspected of intending to commit or having committed an offence and failure to so report

13. Offences relating to hoaxes

14. Attempt, conspiracy and inducing another person to commit offence

PART 4

Penalties

15. Penalties

16. Declarations of forfeiture on conviction

17. Interest of third parties

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

CHAPTER 3

PROVISIONS RELATING TO OFFENCES

19. Jurisdiction in respect of offences

20. Consent of National Director to institute proceedings

21. Evidential matters and exclusions

CHAPTER 4

POWERS TO INVESTIGATE OR PREVENT TERRORIST ACTIVITIES

22. Investigating powers

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

CHAPTER 5

RESOLUTIONS OF UNITED NATIONS SECURITY COUNCIL

24. Notification by the President in respect of persons or entities identified by the United Nations Security Council

25. Parliamentary Supervision

26. Freezing order

CHAPTER 6

GENERAL PROVISIONS

27. Amendment and repeal of laws

28. Short title and commencement

SCHEDULE

CHAPTER 1

DEFINITIONS AND INTERPRETATION

Definitions

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

(i) "Convention offence" means-

(a) an offence as referred to in Part 2 of Chapter 2;

(b) an offence referred to in section 34A. of the Nuclear Energy Act, 1999(Act No. 46 of 1999); and

(ii) ‘‘Director of Public Prosecutions’’ means a Director of Public Prosecutions appointed under section 13(1) of the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998);

(iii) "entity" means a natural person, group, syndicate, gang, agency, trust or partnership or fund or an incorporated or unincorporated association or organization or any other juristic person, and includes—

(a) where appropriate, a cell, unit, section, sub-group or branch thereof; or

(b) any combination thereof;

(iv) "explosive or other lethal device" with reference to sections 6 and 13 means—

(a) 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;

(b) 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; or

(c) any weapon of mass destruction, as defined in section 1 of the Non-Proliferation of Weapons of Mass Destruction Act, 1993 (Act No. 87 of 1993);

(v) "fixed platform", with reference to section 9, 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, but does not include a ship;

(vi) "infrastructure facility", with reference to section 6, means any publicly or privately owned facility providing or distributing services for the benefit of the public, such as water, sewage, energy, fuel or communications;

(vii) "international organization", with reference to the definitions of "internationally protected person" and "terrorist activity" in this section, and section 7, means an international organisation of states, and includes an intergovernmental organization;

(viii) "intergovernmental organization", with reference to the definition of "internationally protected person" and the definitions of "State or government facility" and "terrorist activity" in this section, and section 7, means an international organisation established by the governments of states;

(ix) ‘‘internationally protected person’’, with reference to section 8, means-

(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 the Republic, as well as members of his or her 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 or dignity, as well as members of his or her family forming part of his or her household; and

(x) ‘‘judge’’ means a Judge of the High Court;

(xi) ‘‘Minister’’ means the Minister for Safety and Security;

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

(xiii) "place of public use", with reference to section 6, 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;

(xiv) ‘‘police officer’’, with reference to section 23, 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);

(xv) "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;

(b) funds, cash, assets or any other property, tangible or intangible, however acquired;

(c) any type of financial resource, including cash or the currency of any State, bank credits, traveller’s cheques, bank cheques, money orders, shares, securities, bonds, drafts, letters of credit or any other negotiable instrument in any form, including electronic or digital form; and

(d) any letter or document conferring or containing any evidence of rights in respect of any security;

(xvi) "public transportation system", with reference to section 6, means all facilities, conveyances and instrumentalities, whether publicly or privately owned, that are used in or for publicly available services for the transportation of persons or cargo;

(xvii) "ship", with reference to sections 5 and 9, and the definition of "fixed platform", means a vessel of any type whatsoever not permanently attached to the sea-bed, including dynamically supported craft, submersibles or other floating craft, but does not include-

(a) a warship;

(b) a ship owned or operated by a State;

(d) a fixed platform.

(xviii) "State or government facility", with reference to section 6, includes any permanent or temporary facility or conveyance that is used or occupied by representatives of a State, members of Government, the legislature or the judiciary or by officials or employees of a State or any other public authority or entity of the Republic or by employees or officials of an intergovernmental organization in connection with their official duties;

(xix) "terrorist activity" means-

(a) any act committed in or outside the Republic, which—

involves the systematic, repeated or arbitrary use of violence by means of any weapon, or by any other means or method;

involves the systematic, repeated or arbitrary release into the environment or any part of it or distributing or exposing the public or any part of it to-

(aa) any dangerous, hazardous, radioactive or harmful substance or organism;

(bb) any toxic chemical; or

(cc) any microbial or other biological agent or toxin;

endangers the life, physical integrity or physical freedom of, or violates the physical freedom of, or causes serious bodily injury to or the death of, any person, or any number or group of persons;

causes serious risk to the health or safety of the public or any segment of the public;

causes the destruction of or substantial damage to any property, natural resource, or the environmental or cultural heritage, whether public or private;

is designed or calculated to cause serious interference with or serious disruption of an essential service, facility or system, or the delivery of any such service, facility or system, whether public or private, including, but not limited to—

(aa) a system used for, or by, an electronic system, including an information system;

(bb) a telecommunication service or system;

(cc) a banking or financial service or financial system;

(dd) a system used for the delivery of essential government services;

(ee) a system used for, or by, an essential public utility or transport provider;

an essential infrastructure facility; or

any essential emergency services, such as police, medical or civil defense services;

causes any major economic loss or extensive destabilization of an economic system or substantial devastation of the national economy of a country; or

creates a serious public emergency situation or a general insurrection in the Republic,

whether the harm contemplated in paragraphs (a)(i)- (vii) is or may be suffered in or outside the Republic, and whether the act referred to in subparagraphs (ii) to (viii) was committed by way of any means or method,

(b) and is intended, or by its nature and context, can reasonably be regarded as being intended to, in whole or in part-

to threaten the unity and territorial integrity of the Republic; or

intimidate, or to induce or cause feelings of insecurity within, the public, or a segment of the public, with regard to its security, including its economic security, or to induce, cause or spread feelings of terror, fear or panic in a civilian population;

unduly compel, intimidate, force, coerce, induce or cause a person, a government, the general public or a segment of the public, or a domestic or an international body, organization or intergovernmental organization or institution, to do or to abstain (or refrain) from doing any act, or to adopt or abandon a particular standpoint, or to act in accordance with certain principles,

whether the public or the person, government, body, or organization or institution referred to in subparagraphs (i) or (ii), as the case may be, is inside or outside the Republic; or

(c) and which is committed, in whole or in part, for the purpose of the advancement of an individual or collective political, religious, ideological, or philosophical motive, objective, cause or undertaking,

(2) For purposes of paragraphs (a)(vi) and (vii) of the definition of "terrorist activity", any act which is committed in pursuance of any lawful advocacy, protest, dissent or industrial action and does not involve action resulting in the harm contemplated in paragraphs(a)(i)-(vi) of such definition, shall not be regarded as a terrorist activity within the meaning of that definition.

(3) Notwithstanding any provision of this Act or any other law, any act committed during a struggle waged by peoples, including any action during armed struggle, in the exercise or furtherance of their legitimate right to national liberation, self-determination and independence against colonialism, or occupation or aggression or domination by alien or foreign forces, in accordance with the principles of the customary or conventional international law, including the purposes and principles of the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the said Charter, shall not, for any reason, including for purposes of prosecution or extradition, be considered as a terrorist activity.

(4) Notwithstanding any provision in any other law, a political, philosophical, ideological, racial, ethnic, religious or any similar motive, shall not be considered for any reason, including for purposes of prosecution or extradition, to be a justifiable defense in respect of an offence of which the definition of terrorist activity forms an integral part.

(5) 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 person fails to obtain information to confirm or refute the existence of that fact; or

(6) 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—

(a) the general knowledge, skill, training and experience that may reasonably be expected of a person in his or her position; and

(b) the general knowledge, skill, training and experience that he or she in fact has.

(7) For purposes of this Act, "act" includes "omission".

CHAPTER 2

OFFENCES AND PENALTIES

Part 1

Offence of terrorism and offences connected to terrorist activities

Offence of terrorism

2. Any person who—

(a) carries out or threatens to carry out;

(b) engages or participates in;

(c) facilitates or assists in the carrying out of; or

(d) does an act in preparation for, or planning,

a terrorist activity, is guilty of the offence of terrorism.

Offences connected with terrorist activities

3. 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 carrying out, the facilitation or planning of, the engagement, assistance or participation in a terrorist activity, and who knows or ought reasonably to have known that such training, thing or document is so connected, is guilty of an offence.

Part 2

Convention Offences

Hijacking of an aircraft

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

(a) cause any person on board the aircraft to be detained against his or her will;

(b) cause any person on board the aircraft to be transported against his or her will to any place other than the next scheduled place of landing of the aircraft;

(c) hold any person on board the aircraft for ransom or to service against his or her will; or

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

is guilty of an offence.

Endangering the safety of maritime navigation

5. Any person who intentionally—

(a) seizes or exercises control over a ship by force or threat thereof or any other form of intimidation;

(b) performs any act of violence against a person on board a ship if that act is likely to endanger the safe navigation of that ship;

(c) destroys a ship or causes damage to a ship or to its cargo which is likely to endanger the safe navigation of that ship;

(d) places or causes to be placed on a ship, by any means whatsoever, a device or substance which is likely to destroy that ship, or causes 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 acts are likely to endanger the safe navigation of a 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 a ship; or

(g) injures or kills a person, in connection with the commission or the attempted commission of any of the acts set forth in paragraphs (a) to (f),

is guilty of an offence.

Bombing offences

6. Any person who 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 system, where such destruction results in or is likely to result in major economic loss,

is guilty of an offence.

Taking of hostages

7. Any person who seizes or detains any other person, hereinafter referred to as a hostage, in order to compel a State, an international or intergovernmental organisation or any entity to do or abstain from doing any act, threatens to kill, injure or continue to detain the hostage, as an explicit or implicit condition for the release of the hostage, is guilty of an offence.

Protection of internationally protected persons

8. Any person who, knowing that a person is an internationally protected person, intentionally—

(a) murders or kidnaps or otherwise violently attack the person or liberty of that person;

(b) executes a violent attack upon the official premises, the private accommodation or the means of transport of that person, which attack is likely to endanger his or her person or liberty,

is guilty of an offence.

Offences relating to fixed platforms

9. Any person who intentionally—

(a) seizes or exercises control over a fixed platform by force or any other form of intimidation;

(b) performs an act of violence against a person on board 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 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; or

(e) injures or kills any person in connection with the commission or the attempted commission of any of the acts referred to in paragraphs (a) to (d),

is guilty of an offence an offence.

Financing offences

10. (1) Any person who, directly or indirectly―

(a) collects property;

(b) provides or makes available, or invites a person to provide or make available property;

(c) performs any act which facilitates, or is likely to facilitate, the retention or control of property by or on behalf of any person; or

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

intending that the property, or financial or other related service, as the case may be, be used in whole or in part―

(i) to facilitate or commit an offence referred to in sections 2, 3(a) and (b), 4 to 9, and the offences referred to in paragraphs (b) and (c) of the definition of "Convention offence" or any similar activity outside the Republic; or

(ii) for the benefit of a person or entity which commits or attempts to commit or facilitates or participates in the commission of an offence referred to in sections 2, 3(a) and (b), 4 to 9, and the offences referred to in paragraphs (b) and (c) of the definition of "Convention offence", or any similar activity outside the Republic, of entities owned or controlled, directly or indirectly, by such persons or entities or of persons or entities acting on behalf of or at the direction of such persons or entities,

is guilty of an offence.

(2) Any person who directly or indirectly―

(a) uses or deals with property owned or controlled by or on behalf of, or at the direction of —

(i) any person or persons who has committed, or attempted to commit, an offence under this Act or any similar activity outside the Republic, or participated in or facilitated the commission of such offence or activity;

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

(iii) persons or entities acting on behalf of, or at the direction of such persons and entities; or

(iv) specific persons or entities identified in a Proclamation issued by the President, under section 24(2),

or performs any other act in connection with such property;

(b) allows property referred to in paragraph (a) to be used or dealt with or any other act to be performed in connection with such property;

(c) facilitates the use of or dealing with property referred to in paragraph (a) or the performance of any other act in connection with such property;

(d) enters into or facilitates any transaction in respect of property referred to in paragraph (a),

is guilty of an offence.

(3) Any person who, knowingly and directly or indirectly, provides economic support to a person or persons who commit or attempt to commit or facilitate or participate in the commission of an offence under this Act or a similar activity outside the Republic, of entities owned or controlled, directly or indirectly, by such persons or of persons or entities acting on behalf of or at the direction of such persons, is guilty of an offence.

(4) Nothing in subsection (1), (2) or (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) A person charged with committing an offence under subsection (1), may raise as a defence the fact that he or she had used or dealt with the property in question or performed any other act in connection with that property, or allowed or facilitated the use of, or dealing with that property, or the performance of any other act in connection with that property, solely for the purpose of preserving the value of that property.

PART 3

Other offences

Harbouring or concealment of persons committing offences

11. (1) Any person who harbours or conceals any person, whom he or she knows, or ought reasonably to have known, to be a person who has committed an offence referred to in this Chapter, or who is likely to commit such an offence, is guilty of an offence.

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

(a) the actions of the accused actually enhance the ability of any person to commit an offence referred to in this Chapter; or

(b) the accused had known the specific nature of the offence that may be committed.

Duty to report presence of person suspected of intending to commit or having committed an offence and failure to so report

12. (1) Any person who has reason to suspect that any other person intends to commit or has committed an offence referred to in this Act, 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.

(3) Upon receipt of a report referred to in subsection (1), the member of the police involved, shall take down the report in writing, log it, and forthwith provide the person who made the report with an acknowledgement of receipt of such report.

Offence relating to hoaxes

13. (1) (a) Any person who, with the intention of inducing in a person anywhere in the world a belief that a substance or other thing contains, or is likely to be, a noxious substance or other noxious thing or an explosive or other lethal device—

(i) places that substance or other thing in any place; or

(ii) sends that substance or other thing from one place to another, by post, rail or any other means whatsoever,

is guilty of an offence.

(b) Any person who communicates any information, which he or she knows or ought reasonably to have known, 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 an explosive or other lethal device or a weapon of mass destruction is likely to be present (whether at the time the information is communicated or later) in or at 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) A person is guilty of an offence under this section, notwithstanding whether he or she has any particular person in mind as the person in whom he or she intends to induce the belief in question.

Attempt, conspiracy and inducing another person to commit offence

14. (1) Any person who—

(a) attempts;

(b) conspires with any other person;

(c) aids, abets, induces, incites, instigates, instructs or commands another person,

to commit an offence in terms of this Act, is guilty of an offence.

(2) A person commits an offence under section 2 or 11 notwithstanding whether the terrorist activity occurs or not.

Part 4

Penalties

Penalties

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

(a) sections 2, 3(a) or (b), 4, 5, 6, 7, 8, 9 and 10(1) or (3) is liable—

(i) in the case of a sentence to be imposed by a High Court, to a fine or imprisonment for life;

(ii) in the case of a sentence to be imposed by a regional court, to a fine or imprisonment for a period not exceeding 25 years;

(iii) in the case of a sentence to be imposed by any magistrate's court, to any term of imprisonment which may lawfully be imposed by that court;

(b) sections 3(c) or (d), 10(2) and 11, is liable–

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 15 years;

in the case of a sentence to be imposed by any magistrate's court, to any penalty which may lawfully be imposed by that court;

(c) section 13(1)(a) or (b), is liable–

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;

in the case of a sentence to be imposed by any magistrate's court, to any penalty which may lawfully be imposed by that court;

(d) section 12(2), 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;

in the case of a sentence to be imposed by any magistrate's court, to any penalty which may lawfully be imposed by that court;

(e) section 14, is liable to the punishment laid down in paragraph (a), (b), (c) or (d), for the offence which that person attempted or conspired to commit or aided, abetted, induced, instigated, instructed or commanded another person to commit.

(2) (a) The court, in imposing a sentence on a person who has been convicted of an offence under section 13(1), may order that person to reimburse any party incurring expenses incidental to any emergency or investigative response to that conduct, for those expenses.

(b) A person ordered to make reimbursement under paragraph (a), shall be jointly and severally liable for such expenses with each other person, if any, who is ordered to make reimbursement under that paragraph for the same expenses.

(c) An order of reimbursement under paragraph (a), shall, for the purposes of enforcement, be treated as a civil judgment.

Declarations of forfeiture on conviction

16. (1) Whenever any person is convicted of an offence under section 10, the court in passing sentence must, in addition to any punishment which that court may impose in respect of the offence, declare any property which is reasonably believed to have been used―

(a) in the commission of the offence; or

(b) for the purpose of or in connection with the commission of the offence,

and which was seized under any power exercised under section 22, 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), 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 any power exercised under section 22, 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 17(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

17. (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—

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

(b) that―

(i) 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 suspect that it was property as referred to in section 10; or

(ii) 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 must 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—

(aa) the court must 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 or her interest therein, but not exceeding the proceeds of the sale; or

(bb) if the State has disposed of the property, the court must direct that the applicant be compensated by the State in an amount equal to the value of his or her 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

18. In order to make a declaration of forfeiture or to determine any interest under section 17(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.

CHAPTER 3

PROVISIONS RELATING TO OFFENCES

Jurisdiction in respect of offences

19. (1) A court of the Republic has jurisdiction in respect of any offence referred to in this Act, including the offences referred to in the Schedule, 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 or required to be 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 off-shore installation, or a fixed platform, or an aircraft registered or required to be 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;

(vii) when during its commission, a national of the Republic is seized, threatened, injured or killed;

(viii) in an attempt to compel the Republic to do or to abstain from doing any act; or

(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 effected.

(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—

(a) of the fact that the person is in custody;

(b) of the circumstances that justify the person’s detention; and

(c) 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.

Consent of National Director to institute proceedings

20. (1) No prosecution under this Act may be instituted without the written authority of the National Director.

(2) If a person is prosecuted for any offence referred to in section 2, or any Convention offence, 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.

Evidential matters and exclusions

21. (1) 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.

(2) If a person reports the presence of a person referred to in section 11(1), as soon as possible in accordance with section 12, he or she shall not be liable for prosecution, under section 11(1).

(3) The International Convention against the Taking of Hostages, 1979, shall not apply in respect of the offence referred to in section 7, where-

(a) the offence is committed within a single State;

(b) the hostage and the alleged offender are nationals of that State; and

(4) The International Convention for the Suppression of Terrorist Bombings, 1997, shall not apply where-

(a) the offence referred to in section 6, is committed within a single State;

(b) the alleged offender and the victims are nationals of that State;

(d) no other State has a basis under Article 6, paragraphs 1 or 2, of the said Convention to exercise jurisdiction,

except that the provisions of Articles 10 to 15 of the Convention shall, as appropriate, apply in those cases.

(5) A certificate that appears to be signed by, or on behalf of, the Minister of Foreign Affairs, and that states that a State is, or is not a State Party to an international instrument relating to the prevention or combating of terrorism,

is sufficient evidence of that matter, unless the contrary is proved (for example by the production of another certificate issued after the first certificate).

CHAPTER 4

POWERS TO INVESTIGATE OR PREVENT TERRORIST ACTIVITIES

Investigating powers

22. (1) Whenever the National Director has reason to believe that―

(a) any person may be in possession of information relevant to the commission or intended commission of an alleged offence under this Act; or

(b) there may be in any building, receptacle or place, or in the possession, custody or control of any person or enterprise any property which–

(i) may have been used in the commission, or for the purpose of or in connection with the commission, of an offence under this Act; or

(ii) may have facilitated the commission of an offence under this Act, or enabled any person or entity to commit such an offence, or provided financial or economic support to a person or entity in the commission of such an offence; or

(c) any person or enterprise may be in possession, custody or control of any documentary material relevant–

(i) to an alleged offence referred to in paragraph (a); or

(ii) in respect of any property referred to in paragraph (b),

he or she may, prior to the institution of any civil or criminal proceeding, under written authority direct that a 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 referred to in paragraph (a), or to any property referred to in paragraph (b) or to the possession, custody or control of any documentary material referred to in paragraph (c).

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

(a) the "head of the Directorate of Special Operations" or an "Investigating Director" shall be construed as a reference to a Director of Public Prosecutions authorized under subsection (1): Provided that for purposes of section 28(2)(a) of the said Act, a Director of Public Prosecutions, may only designate a Deputy Director of Public Prosecutions;

(b) a "special investigator" shall be construed as to include a "police officer".

(3) If property seized under any power exercised under subsection (1) consists of cash or funds standing to the credit of a bank account, the Director of Public Prosecutions who has instituted the investigation under that subsection, shall cause the cash or funds to be paid into a banking account which shall be opened with any bank as defined in section 1 of the Banks Act, 1990 (Act No. 94 of 1990) and the Director of Public Prosecutions shall forthwith report to the Financial Intelligence Centre the fact of the seizure of the cash or funds and the opening of the account.

Cordoning off, stop and search of vehicle and person

23. (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 any terrorist activity, the judge may issue a warrant for the cordoning off, and stopping and searching of vehicles and persons with a view to preventing such terrorist activity, in a specified 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 specified area for the period specified and stop and search any vehicle or person in that area, 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 activity.

(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 cordoning off, search or seizure.

CHAPTER 5

FREEZING OF PROPERTY

Notification by the President in respect of persons or entities identified by the United Nations Security Council

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

(2) The President-in-Cabinet must, 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-

(a) persons who commit, or attempt to commit, any terrorist activity or participate in or facilitate the commission of any terrorist activity;

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

(c) persons and entities acting on behalf of, or at the direction of such persons and entities; or

(d) persons or entities against whom Member States of the United Nations must take the actions specified in Resolutions of the said Security Council, in order to combat or prevent terrorism.

Parliamentary supervision

25. Every Proclamation issued under section 24(2) shall be laid upon the Table in Parliament for its decision and Parliament may thereupon take such steps as it may consider necessary.

Freezing order

26. (1) A High Court may, on ex parte 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 in respect of which there are reasonable grounds to believe that the property is owned or controlled by or on behalf of, or at the direction of—

(a) any person or persons who has committed, or attempted to commit, an offence under this Act or any similar activity outside the Republic, or participated in or facilitated the commission of such offence or activity;

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

(c) persons and entities acting on behalf of, or at the direction of such persons and entities; or

(d) specific persons or entities identified in a Proclamation issued by the President, under section 24(2).

(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.

CHAPTER 6

GENERAL PROVISIONS

Amendment and repeal of laws

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

Short title and commencement

28. 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.

SCHEDULE

SCHEDULE OF LAWS AMENDED OR REPEALED: SECTION 27

ACT NO.	YEAR	TITLE	EXTENT OF AMENDMENT OR REPEAL
67	1962	Extradition Act	1. The insertion of the following new section :- "Extradition in respect of terrorist activities 22. (1) This Act shall apply to any surrender in respect of a person suspected or accused of, or convicted for an offence in terms of the Counter-Terrorism Act, 2003. (2) Promptly, after being detained as contemplated in section 7 or 9 of the Extradition Act, 1962, a person who is not a- (a) South African citizen; (b) person ordinarily resident in the Republic; or (cc) 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- the State of which the person is a citizen; if the person is not a citizen of any State, the State in whose territory the person ordinarily resides; or the State, if any that is otherwise entitled to protect the person’s rights; and (ii) to be visited by such representative. (3) The offences referred to in sections 4, 5, 6, 7, 8 , 9 and 10 of the Counter Terrorism Act, 2003, section 2(1) or (2) of the Civil Aviation Offences Act, 1972 (Act No. 10 of 1972), and section 34A. of the Nuclear Energy Act, 1999(Act No. 46 of 1999), shall be deemed to be included as extraditable offences in any extradition treaty between the Republic of South Africa and any other foreign State, concluded before the coming into force of this section, if such foreign State is also a Party to the- Convention for the Suppression of Unlawful Seizure of Aircraft, 1970 International Convention Against the Taking of Hostages, 1979; Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, 1973; Convention on the Physical Protection of Nuclear Material, 1980; Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, 1988; Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1988; Convention for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf, 1988; International Convention for the Suppression of Terrorist Bombings, 1997; or International Convention for the Suppression of the Financing of Terrorism, 1999: Provided that if under this subsection an offence is deemed to be an offence described in an extradition treaty, no person may be surrendered for the offence in accordance with this Act, if the conduct alleged to constitute the offence occurred before this section comes into force. (4) Notwithstanding the provisions of section 15, a request for extradition based on the offences referred to in sections 6 and 10 of the Counter Terrorism Bill, 2003, may not be refused on the sole ground that it concerns a political offence, or an offence connected with a political offence or an offence inspired by political motives,or that it is a fiscal offence. (5) The provisions of this section shall in no way affect the application of sections 11(6)(iv) or 12(2)(ii) of this Act.
ACT NO.	YEAR	TITLE	EXTENT OF AMENDMENT OR REPEAL
51	1977	Criminal Procedure Act	1. The insertion in Schedule 5 of the following offences: " The offences referred to in sections 13 and 14(1)(a) or (c) of the Counter-Terrorism Act, 2003". 2.The insertion in Schedule 6 of the following offences: "The offences referred to in sections 2, 3(a) or (b), 4, 5, 6, 7, 8, 9 and 14(1)(b) of the Counter-Terrorism Act, 2003, section 2(1) and (2) of the Civil Aviation Offences Act, 1972 (Act No. 10 of 1972), section 26(1)(j) of the Non-Proliferation of Weapons of Mass Destruction Act, 1993 (Act No. 87 of 1993) and section 34A. of the Nuclear Energy Act, 1999(Act No. 46 of 1999.".

105	1997		Criminal Law Amendment Act		1. By the insertion in Schedule 2, Part II of the following item: "Any offence referred to in section 15 (1)(a) of the Counter-Terrorism Act, 2003, any offence referred to in section 2(1) or (2) of the Civil aviation Offences Act, 1972(Act No. 10 of 1972), any offence referred to in section 26(1)(j) of the Non-Proliferation of Weapons of Mass Destruction Act, 1993 (Act No. 87 of 1993), and section 34A. of the Nuclear Energy Act, 1999(Act No. 46 of 1999, and when it is proved that the offence was committed by - a person, group of persons, syndicate, or any enterprise, acting in the execution, or furtherance of a common purpose, or conspiracy; or by any law enforcement officer as a member of a group of persons, syndicate, or any enterprise acting in the execution on furtherance of a common purpose or conspiracy.".
121		1998		Prevention of Organised Crime Act		1. The substitution for the long title of the following long title: "To introduce measures to combat organised crime, money laundering and criminal gang activities; to prohibit certain activities relating to racketeering activities; to provide for the prohibition of money laundering and for an obligation to report certain information; to criminalise certain activities associated with gangs; to provide for the recovery of the proceeds of unlawful activity; for the civil forfeiture of criminal [assets] property that [have] has been used to commit an offence, [or assets] property that [are] is the proceeds of unlawful activity or property that is owned or controlled by, or on behalf of, persons or entities involved in terrorist activities; to provide for the establishment of a Criminal Assets Recovery Account; to amend the Drugs and Drug Trafficking Act, 1992; to amend the International Co-operation in Criminal Matters Act, 1996; to repeal the Proceeds of Crime Act, 1996; to incorporate the provisions contained in the Proceeds of Crime Act, 1996; and to provide for matters connected therewith.". 2. The amendment of the preamble by― (a) the insertion after the tenth paragraph of the following paragraph: "AND WHEREAS effective legislative measures are necessary to prevent and suppress the financing of terrorist acts and to effect the preservation, seizure and forfeiture of property owned or controlled by, or on behalf of, persons or entities involved in terrorist activities;"; and (b) the substitution for the eleventh paragraph of the following paragraph: "AND WHEREAS there is a need to devote such forfeited assets and proceeds to the combating of organised crime, [and] money laundering and the financing of terrorist activities;". 3. The insertion in section 1 after the definition of "property" of the following definition: "’property associated with terrorism’ means property which has– (a) facilitated the commission of an offence under the Counter-Terrorism Act, 2003 (Act No. of 2003) or a similar activity outside the Republic; (b) enabled any person or entity to commit an offence or activity referred to in sub-paragraph (i); or (c) provided financial or economic support to a person or entity in the commission of an offence or activity referred to in sub-paragraph (i);". 4. The substitution in section 38 for subsection (2) of the following subsection: "(2) The High Court shall make an order referred to in subsection (1) if there are reasonable grounds to believe that the property concerned— (a) is an instrumentality of an offence referred to in Schedule 1; [or] (b) is the proceeds of unlawful activities; or (c) is property associated with terrorism.". 5. The substitution in section 50 for subsection (1) of the following subsection: "The High Court shall, subject to section 52, make an order applied for under section 48 (1) if the Court finds on a balance of probabilities that the property concerned— (a) is an instrumentality of an offence referred to in Schedule 1; [or] (b) is the proceeds of unlawful activities; or (c) is property associated with terrorism.". 6. The substitution for section 51 of the following section: "Notice of reasonable grounds that property is concerned in commission of offence or related to terrorist financing offence 51.(1) The National Director may apply to a judge in chambers or a magistrate 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 an instrumentality of an offence referred to in Schedule 1 or is property associated with terrorism. (2) The judge or magistrate shall make an order referred to in subsection (1) if the judge or magistrate is satisfied that there are reasonable grounds to believe that the property concerned is an instrumentality of an offence referred to in Schedule 1 or property associated with terrorism. (3) When a judge or magistrate makes an order under subsection (1), the registrar of the High Court concerned or clerk of the Magistrate’s Court for the district 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 an instrumentality of an offence referred to in Schedule 1 or property associated with terrorism. (4) A notice issued under subsection (3) shall be served on the person concerned in the manner in which a summons whereby civil proceedings in the High Court are commenced is served.". 7. The substitution in section 52– (a) for subsection (2A) of the following subsection: "(2A) The High Court may make an order under subsection (1), in relation to the forfeiture of an instrumentality of an offence referred to in Schedule 1 or property associated with terrorism, if it finds on a balance of probabilities that the applicant for the order had acquired the interest concerned legally, and— (a) neither knew nor had reasonable grounds to suspect that the property in which the interest is held is an instrumentality of an offence referred to in Schedule 1 or property associated with terrorism; or (b) where the offence concerned had occurred before the commencement of this Act, the applicant has since the commencement of this Act taken all reasonable steps to prevent the use of the property concerned as an instrumentality of an offence referred to in Schedule 1 or property associated with terrorism.". (b) for subsection (3) of the following subsection: "(3) (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 an instrumentality of an offence referred to in Schedule 1 or property associated with terrorism, the State may submit a return of the service on the applicant of a notice issued under section 51 (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 51 (3) as contemplated in paragraph (a), the applicant for an order under subsection (1) must, in addition to the facts referred to in subsection (2) (a) and (2) (b) (i), 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 instrumentality of an offence referred to in Schedule 1 or property associated with terrorism.". (c) for subsection (4) of the following subsection: "(4) A High Court making an order for the exclusion of an interest in property under subsection (1) 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 an instrumentality of an offence referred to in Schedule 1 or property associated with terrorism." 8. The substitution in section 54 for subsection (8A) of the following subsection: "(8A) The High Court may make an order under subsection (1), in relation to the forfeiture of an instrumentality of an offence referred to in Schedule 1 or property associated with terrorism, if it finds on a balance of probabilities that the applicant for the order had acquired the interest concerned legally, and— (a) neither knew nor had reasonable grounds to suspect that the property in which the interest is held is an instrumentality of an offence referred to in Schedule l or property associated with terrorism; or (b) where the offence concerned had occurred before the commencement of this Act, the applicant has since the commencement of this Act taken all reasonable steps to prevent the use of the property concerned as an instrumentality of an offence referred to in Schedule 1 or property associated with terrorism.". 9. The substitution in section 68 for paragraph (b) of the following paragraph: "(b) to advise Cabinet in connection with the rendering of financial assistance to law enforcement agencies in order to combat organised crime, money laundering, criminal gang activities, the financing of terrorist activities and crime in general; and". 10. The insertion in Schedule 1 after item 32 of the following item: "32A Any offence under the Counter-Terrorism Act, 2003 (Act No. of 2003);"
38	2001		Financial Intelligence Centre Act		1. The substitution for the long title of the following long title: ‘‘To establish a Financial Intelligence Centre and a Money Laundering Advisory Council in order to combat money laundering activities and the financing of terrorist acts; to impose certain duties on institutions and other persons who might be used for money laundering purposes and the financing of terrorist acts; to amend the Prevention of Organised Crime Act, 1998, and the Promotion of Access to Information Act, 2000; and to provide for matters connected therewith.’’. 2. The insertion in section 1 after the definition of ‘‘supervisory body’’ of the following definition: ‘‘ ‘terrorist financing offence’ means an offence under section 10 of the Counter-Terrorism Act, 2003 (Act No. of 2003);’’. 3. The substitution for section 3(1) of the following subsection: ‘‘(1) The principal objective of the Centre is to assist in the identification of the proceeds of unlawful activities and the combating of money laundering activities and the financing of terrorism.’’. 4. The substitution for the heading to Chapter 3 of the following heading: ‘‘MONEY LAUNDERING AND FINANCING OF TERRORISM CONTROL MEASURES’’. 5. The insertion after section 28 of the following section: "Property associated with terrorism 28A.(1) An accountable institution which has in its possession or control property owned or controlled by or on behalf of, or at the direction of — (a) any person or persons who has committed, or attempted to commit, an offence under the Counter-Terrorism Act, 2003 (Act No. of 2003), or any similar activity outside the Republic, or participated in or facilitated the commission of such an offence or activity; (b) entities owned or controlled directly or indirectly by a person or persons referred to in paragraph (a); (c) persons and entities acting on behalf of, or at the direction of a person or persons referred to in paragraph (a); or (d) specific persons or entities identified in a Proclamation issued by the President, under section 24(2) of the Counter-Terrorism Act, 2003 (Act No. of 2003). (2) The Director may direct an accountable institution which has made a report under subsection (1) to report- (a) 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 under subsection (1) had been made, and (b) any change in the circumstances concerning the accountable institution’s possession or control of that property.". 6.The substitution in section 29 for subsection (1) of the following subsection: "(1) 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) the business has received or is about to receive the proceeds of unlawful activities or property which is connected to a terrorist financing offence; (b) a transaction or series of transactions to which the business is a party— (i) facilitated or is likely to facilitate the transfer of the proceeds of unlawful activities or property which is connected to a terrorist financing offence; (ii) is unnecessarily complex, forms part of an unusual pattern of transactions or has no apparent business or lawful purpose; (iii) is conducted for the purpose of avoiding giving rise to a reporting duty under this Act; [or] (iv) may be relevant to the investigation of an evasion or attempted evasion of a duty to pay any tax, duty or levy imposed by legislation administered by the Commissioner for the South African Revenue Service; or (v) relates to a terrorist financing offence; or (c) the business has been used or is about to be used in any way for money laundering purposes or to facilitate the commission of a terrorist financing offence, must, within the prescribed period after the knowledge was acquired or the suspicion arose, report to the Centre the grounds for the knowledge or suspicion and the prescribed particulars concerning the transaction or series of transactions.". 7. The substitution in section 34 for subsection (1) of the following subsection: "(1) If the Centre, after consulting an accountable institution, a reporting institution or a person required to make a report in terms of section 28, 28A or 29, has reasonable grounds to suspect that a transaction or a proposed transaction may involve the proceeds of unlawful activities or property which is connected to a terrorist financing offence or may constitute money laundering or [may constitute] a transaction contemplated in section 29(1)(b) it may direct the accountable institution, reporting institution or person in writing not to proceed with the carrying out of that transaction or proposed transaction or any other transaction in respect of the funds affected by that transaction or proposed transaction for a period as may be determined by the Centre, which may not be more than five days, in order to allow the Centre— (a) to make the necessary inquiries concerning the transaction; and (b) if the Centre deems it appropriate, to inform and advise an investigating authority or the National Director of Public Prosecutions." 8. The substitution in section 35(1) for paragraphs (a) and (b) of the following paragraphs, respectively: "(a) that person has transferred or may transfer the proceeds of unlawful activities or property which is connected to a terrorist financing offence to the accountable institution or is using or may use the accountable institution for money laundering purposes or for the financing of terrorist acts or for the purpose of any transaction contemplated in section 29(1)(b); or (b) that account or other facility has received or may receive the proceeds of unlawful activities or property which is connected to a terrorist financing offence or is being or may be used for money laundering purposes or for the financing of terrorist acts or for the purpose of any transaction contemplated in section 29(1)(b).’’.

46	1999	Nuclear Energy Act	1. The insertion of the following new section 34A.: "34.A.(1) For purposes of this section, "international organisation", has the meaning ascribed to it in section 1 of the Counter-Terrorism Act, 2003. (2) No person may- intentionally and without lawful authority, receive possess, use, transfer, alter, dispose of or disperse, nuclear material which causes or is likely to cause death or serious bodily injury to any person or substantial damage to property; intentionally obtain nuclear material by means of theft or robbery; intentionally obtain nuclear material by means of embezzlement or fraud; intentionally demand nuclear material by threat or use of force, or by any other form of intimidation; intentionally threatens to- use nuclear material to cause death or serious injury to any person or substantial damage to property; or commit an act described in paragraph (b) in order to compel a natural or legal person, international organization or State to do or to refrain from doing any act; use nuclear material or device or use or damage a nuclear installation or nuclear plant in a manner which release or the risk release of radio-active material, with the intent to- cause death or serious bodily injury; cause substantial damage to property or the environment; or to compel a natural or juristic person, an international organization or a State to do or refrain from doing an act." 2. The insertion in subsection 56(1) of the following new paragraph: "(h) performing any act prohibited in terms of section 34A.". 3. The insertion of the following new paragraph in subsection 56(2): "(d) section 34A., to a fine or imprisonment for life.".
87	1993	Non-Proliferation of Weapons of Mass Destruction Act	1.The amendment of section 26(1) of the Act by - (a) the insertion of a new paragraph (j): "(j) Any person who intentionally uses, or threatens to use, a weapon of mass destruction against— (a) a citizen of the Republic or a person ordinarily resident in the Republic, whether that person is in or outside the Republic; (b) any person within the Republic; or (c) any property that is owned, leased or used by any such citizen or resident of the Republic or by any public or private body or agency of the Republic, whether the property is within or outside of the Republic," (b) the insertion of a new subparagraph (v): "(v) in the case of an offence referred to in paragraph (j), to a fine or imprisonment for life.".

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.