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 the specified offences, including 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 as a phenomenon;

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, require Member States to become Party to international instruments, dealing with terrorist and related activities, as soon as possible;

AND WHEREAS the Republic of South Africa has already become Party to the following international instruments of the United Nations:

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

AND WHEREAS the Republic of South Africa has become a Party by ratification, on 7 November 2002, to the African Union Convention on the Prevention and Combating of Terrorism, adopted by the African Union on 14 July 1999;

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 the phenomenon of 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 as a phenomenon;

AND WHEREAS the phenomenon of 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 instruments dealing with terrorist and related activities;

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 activities

2. Offence of terrorism

3. Offences associated or connected with terrorist activities

5. Offences relating to hijacking of an aircraft

6. Offences relating to endangering the safety of maritime navigation

7. Offences relating to explosives or other lethal devices

8. Offences relating to taking of hostages

9. Offences relating to internationally protected persons

11. Harbouring or concealment of persons committing offences

13. Offences relating to hoaxes

15. Penalties

16. Declarations of forfeiture on conviction

17. Interest of third parties

19. Jurisdiction in respect of offences

20. Consent of National Director to institute proceedings

21. Evidential matters and exclusions

22. Investigating powers

23. Freezing order

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

26. Parliamentary Supervision

27. Amendment and repeal of laws

28. Short title and commencement

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

(xii) ''internationally protected person'', with reference to section 8, means-

(xiii) ''judge'' means a Judge of the High Court;

(xiv) ''Minister'' means the Minister for Safety and Security;

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

(a) a warship;

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

(c) a ship which has been withdrawn from navigation or laid up; or

(d) a fixed platform;

(xxiii) "terrorist activity" means-

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

1. involves the systematic, repeated or arbitrary use of violence by any means or method, including by means of a weapon;
2. 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;

3. 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;
4. causes serious risk to the health or safety of the public or any segment of the public;
5. causes the destruction of or substantial damage to any property, natural resource, or the environmental or cultural heritage, whether public or private;
6. 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-

1. an essential infrastructure facility; or
2. any essential emergency services, such as police, medical or civil defense services;

1. causes any major economic loss or extensive destabilization of an economic system or substantial devastation of the national economy of a country; or
2. creates a serious public emergency situation or a general insurrection in the Republic,

1. threaten the unity and territorial integrity of the Republic;
2. 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; or
3. 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,

(xx) "terrorist activity" means any activity-

(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

(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-

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

2. (1) Any person who engages in a terrorist activity is guilty of the offence of terrorism.

(2) For purposes of subsection (1) the expression "engages in a terrorist activity " includes-

(a) the commission, performance or carrying out;

(c) the performance of an act in preparation for or planning; or

of a terrorist activity.

3. (1) Any person who-

(c) enters or remains in any country, or

for the benefit of, at the direction of, or in association with any person engaging in a terrorist activity, and who knows or ought reasonably to have known, that such instruction was given or such act was done for the purpose of enhancing the ability of such person to engage in a terrorist activity, is guilty of the offence associated with a terrorist activity.

(2) Any person who-

(f) possesses a thing,

connected with the engagement in a terrorist activity, and who knows or ought reasonably to have known that such weapons, soliciting, training, recruitment, document or thing is so connected, is guilty of an offence connected with terrorist activities.

(c) uses property;

intending that the property, financial or other service or economic support, as the case may be, be used, or while such person knows or ought reasonably to have suspected that the property, service or support concerned will be used, directly or indirectly, in whole or in part―

(i) to commit or facilitate a specified offence;

is guilty of an offence.

(2) Any person who, directly or indirectly―

is guilty of an offence.(3) Any person who knows or ought reasonably to have suspected that property or proceeds is property or proceeds referred to in subsection (2)(a) and enters into, or becomes concerned in, an arrangement which in any way has or is likely to have the effect―

(b) converting such property, or

is guilty of an offence.

5. Any person who intentionally, by force or threat thereof, or by any other form of intimidation, seizes or exercises control of an aircraft-

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

is guilty of an offence relating to the hijacking of an aircraft.

6. Any person who intentionally-

7. 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

is guilty of an offence relating to explosives or other lethal devices.

8. Any person who intentionally seizes or detains any other person, hereinafter referred to as a hostage, with the view 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 relating to the taking of hostages.

9. Any person who, knowing that a person is an internationally protected person, intentionally-

is guilty of an offence relating to an internationally protected person.

10. Any person who intentionally-

is guilty of an offence an offence relating to destroying or endangering a fixed platform.

11. 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 a specified offence, or who is likely to commit such an offence, is guilty of an offence.

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 Chapter, 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, record it, and forthwith provide the person who made the report with an acknowledgement of receipt of such report.

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

is guilty of an offence.

(b) Any person who, directly or indirectly, 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 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).

14. Any person who-

(a) threatens,

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

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

1. in the case of a sentence to be imposed by a High Court or a regional court, to a fine not exceeding R300 million, or to imprisonment for a period not exceeding 15 years;
2. 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-

1. in the case of a sentence to be imposed by a High Court or a regional court, to a fine not exceeding R200 million or to imprisonment for a period not exceeding 10 years;
2. 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 not exceeding R100 million or to imprisonment for a period not exceeding 5 years;

3. 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;

(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.

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

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

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-

(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 -

(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.

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.

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-

(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 a specified offence or any terrorist activity outside the Republic which constitutes an offence under the law of 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.

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.

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) A person commits an offence under section 2, 4 or 11 notwithstanding whether the terrorist activity occurs or not.

(3) An offence is committed under section 4 (others?) whether or not-

(3) 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).

(4) Nothing in section 4 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 section 4 may raise as a defence the fact that he or she had performed any act in connection with the property in question, or allowed or facilitated the performance of any act in connection with that property, solely for the purpose of preserving the value of that property.

(6) A person who acts reasonably in taking or omitting to take measures to comply with section 4(2) shall not be liable in any civil action arising from having taken or omitted to have taken those measures if the person proves that he or she took all reasonable steps to satisfy himself or herself that the relevant property was not owned, controlled, or possessed by or on behalf of or for the benefit of an entity referred to that subsection.

(7.) An offence is committed under section 11 whether or not-

(8) A person is guilty of an offence under section 13(1), 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.

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

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

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

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-

(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.

23. (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―

(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.

24. (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.

25. The President 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 entities as being―

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

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

28. This Act is called the Counter-Terrorism Act, 2003, and comes into operation on 1 January 2004 or such earlier date determined by the President by proclamation in the Gazette.

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.

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.