Part 4

WORKING DOCUMENT RELATING TO CHAPTERS 3 TO 6

CHAPTER 3

PROVISIONS RELATING TO OFFENCES AND PENALTIES

Part 1

Provisions relating to offences

Jurisdiction in respect of offences

15. (1) A court of the Republic has jurisdiction in respect of any offence referred to in Chapter 2 and 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);

(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; or

(viii) in an attempt to compel the Republic to do or to abstain or to refrain 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 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.

Consent of National Director to institute proceedings and reporting obligations

16. (1) No prosecution under Chapter 2 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

17. (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, 3, 4 or 11 notwithstanding whether the terrorist activity occurs or not.

(3) An offence is committed under sections 4 and 11, whether or not—

(a) the actions of the accused actually enhance the ability of any person to commit a specified offence; or

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

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

(5) Nothing in section 4 makes it an offence to provide or collect funds intending that they be used, or knowing or suspecting that they are to be used, for the purpose of advocating democratic government or the protection of human rights.

(6) 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.

(7) 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 in the said section 4(2).

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

Part 2

Penalties and matters relating to penalties

Penalties

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

(a) section 2, 5, 6, 7, 8, 9 or 10 is liable—

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

(ii) in the case of a sentence to be imposed by a regional court, to a fine or to imprisonment for a period not exceeding 18 years;

(iii) in the case of a sentence to be imposed by any magistrate's court, to a fine or to imprisonment for a period not exceeding 5 years;

(b) section 3 or 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 4 is liable—

in the case of a sentence to be imposed by a High Court or a regional court, to a fine not exceeding R… million or to imprisonment for a period not exceeding 15 years;

(ii) in the case of a sentence to be imposed by any magistrate's court, to a fine not exceeding R…. or to imprisonment for a period not exceeding … years;

(d) 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;

(e) section 12(2), 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 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;

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

19. (1) Whenever any person is convicted of an offence under section 4, 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 20(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

20. (1) A declaration of forfeiture in terms of section 19(1) 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 know or suspect that it was property as referred to in section 4 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.

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

21. In order to make a declaration of forfeiture under section 19(1) or to determine any interest under section 20(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 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―

(i) the commission or intended commission of an alleged offence under this Act; or

(ii) any property which–

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

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

(cc) may afford evidence of the commission or intended commission of an offence referred to in sub-paragraph (i);

(b) there may be in any building, receptacle or place, or in the possession, custody or control of any entity any property referred to in paragraph (a)(ii); or

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

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

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

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.

Freezing order

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―

(a) any entity who has committed, attempted to commit, participated in or facilitated the commission of a specified offence; or

(b) specific entities identified in a Proclamation issued by the President, under section 26.

(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.

Cordoning off, stop and search of vehicle and person

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.

CHAPTER 5

RESOLUTION OF THE UNITED NATIONS SECURITY COUNCIL

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

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―

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

(b) 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 terrorist and related activities.

Parliamentary supervision

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.

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 Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2003, and comes into operation on 1 January 2004 or such earlier 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— to the Republic of a person suspected or accused of any offence in terms of Chapter 2 of the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2003; or to any foreign state of a person suspected or accused of any terrorist activity committed outside the Republic which constitutes an offence under the law of that foreign State. (2) Promptly, after being detained as contemplated in section 7 or 9 of this Act a person who is not a- (a) South African citizen; (b) person ordinarily resident in the Republic; or (c) 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) Notwithstanding the provisions of section 15, a request for extradition based on the offences referred to in section 4 or 7 of the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 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. (4) 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 section 13 or 14(1)(a) or (c) of the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2003". 2.The insertion in Schedule 6 of the following offences: "The offences referred to in section 2, 4, 5, 6, 7, 8, 9 or 10 of the Protection of Constitutional Democracy against Terrorist and Related Activities 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.".
74	1982	Internal security Act	The repeal of the whole Act.
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 to imprisonment for a period up to imprisonment for life".

105	1997	Criminal Law Amendment Act	1. By the addition to Part 1 of Schedule 2 of the following item: "(a) Any offence referred to in section 2, 4, 5, 6, 7, 8, 9 or 10 of the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2003, when it is proved that the offence has- (a) endangered the life or causes serious bodily injury to or the death of, any person, or any number or group of persons; (b) caused serious risk to the health or safety of the public or any segment of the public; (c) caused the destruction of or substantial damage to any property, natural resource, or the environmental or cultural heritage, whether public or private; (d) caused serious interference with or serious disruption of an essential service, facility or system, or the delivery of any such service, facility or system contemplated in the definition of "terrorist activity" as defined in section 1 of the said Act; (e) caused a major economic loss or extensive destabilization of an economic system or devastation of the national economy of the Republic; or (f) created a serious public emergency situation or a general insurrection ; including the economic security, or to induce, cause or spread feelings of terror, fear or panic in a civilian population. and the offence was committed by a person or entity acting in the execution of a common purpose or conspiracy.". 2. By the addition to Part II of Schedule 2, of the following item: "Any offence referred to in section— (a) 2, 5, 6, 7, 8, 9 or 10 of the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2003, in circumstances other then those referred to Part I; (b) 3 or 14(a) or (c) of the said Act, if it is proved that such offence was committed in order to enhance the commission of an offence referred to in paragraph (a), and the last-mentioned offence has been committed in circumstances referred to in Part I; (c) 4 of the said Act, if it is proved that the value of the property in question is more than R50 000, 00.".
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, entities involved in terrorist and related 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 and related activities and to effect the preservation, seizure and forfeiture of property owned or controlled by, or on behalf of, entities involved in terrorist and related 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 and related activities;". 3. The insertion in section 1― (a) after the definition of "enterprise" of the following definition: "’entity’ has a corresponding meaning with the expression in section 1 of the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2003;"; (b) after the definition of "property" of the following definition: "’property associated with terrorism’ means property which has– (a) enabled an entity to commit, or facilitated the commission of– (i) an offence under the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2003; or (ii) any activity outside the Republic which constitutes an offence under the law of another state and which would have constituted an offence referred to in sub-paragraph (i), had that activity taken place in the Republic; or (b) provided financial or economic support to an entity in the commission or facilitation of an offence or activity referred to in paragraph (a);". 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 associated with terrorism 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 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 and related activities and crime in general; and". 10. The insertion in Schedule 1 after item 32 of the following item: "32A Any offence under the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2003 (Act No. of 2003);"
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 Protection of Constitutional Democracy against Terrorist and Related Activities 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 risk the 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, to abstain 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 to imprisonment for a period up to imprisonment for life".".
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 and related activities; to impose certain duties on institutions and other persons who might be used for money laundering purposes and the financing of terrorist and related activities; 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 4 of the Protection of Constitutional Democracy against Terrorist and Related Activities 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 terrorist and related activities.’’. 4. The substitution for the heading to Chapter 3 of the following heading: ‘‘ CONTROL MEASURES FOR MONEY LAUNDERING AND FINANCING OF TERRORIST AND RELATED ACTIVITIES [CONTROL MEASURES]’’. 5. The insertion after section 28 of the following section: "Property associated with terrorist and related activities 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 Protection of Constitutional Democracy against Terrorist and Related Activities 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 25 of the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2003 (Act No. of 2003), must within the prescribed period report that fact and the prescribed particulars to the Centre. (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).’’.
70	2002	Regulation of Interception of Communications and Provision of Communication-related Information Act	1. In the Schedule to - (a) substitute for item 2, the following item: "2. Any specified offence as referred to in section 1 of the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2003.". (b) delete item 3.