AMENDMENTS PROPOSED BY THE SELECT COMMITTEE FOR SAFETY AND CONSTITUTIONAL

DEVELOPMENT PROTECTION OF CONSTITUTIONAL DEMOCRACY AGAINST TERRORIST

AND RELATED ACTIVITIES Bill : SUBMISSION TO THE PORTFOLIO COMMITTEE FOR SAFETY AND

SECURITY

25 February 2004

[B 28-2003 Reprint]

INTRODUCTION

Almost all amendments proposed by the Select Committee for Safety and Constitutional Affairs, are technical, editorial improvements of the text, which will be indicated hereunder. Two issues were specifically dealt with in the Select Committee. Firstly the Cape Bar Council submitted a document to the Minister for Safety and Security, containing a submission from Advocate Donen, who appeared before the Portfolio Committee during the public hearings. The document was dealt with by the Select Committee for Safety and Constitutional Affairs.

Advocate Donen proposed the deletion of Clause 1(4) of the Bill, pertaining to the exclusion of freedom struggles from the definition of a terrorist activity. Advocate Donen refers to the case of Mxolisi Petane who was charged under section 54(1) of the Internal Security Act, 1982, and states that: "Should charges of terrorism ever arise from the Act, Section 1(4) will in all likelihood evoke the response of Mxolisi Petane who was charged with terrorism under section 54(1) of the Internal Security Act, in the Cape High Court: viz. that the accused is entitled to be treated as a prisoner of war and the court has no jurisdiction to try him or her".

(4) Notwithstanding any provision of this Act or any other law, any act committed during a struggle waged by peoples, including any action during an 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 international law, especially the international humanitarian 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, as defined in subsection (I).

Opinions were obtained from the State Law Advisers International Law, Department of Foreign Affairs, the State Law Advisers Department off Justice and Constitutional Development, the South African Law Reform Commission, the

National Prosecuting Authority as well as the Director of Public Prosecutions, Pretoria. All the opinions are in favor of retaining the Clause in question.

The struggle against apartheid was, together with the Palestinian cause, recognized at the time of Petane's trial as just causes, or recognized liberation struggles, also by the United Nations. Clause 1(4) gives effect to South Africa's obligations under the African Union Convention for the Prevention and Combating of Terrorism as well as the Geneva Protocols of 1977. The Select Committee decided not to support the deletion of Clause 1(4).

The Select Committee also received representations from COSATU, which indicated that it deemed the definition of "terrorist activity", as it stands, to infringe unduly on industrial action. COSATU requested that the following two paragraphs be deleted from the definition of "terrorist activity":

(vi) 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;

(ff) an essential infrastructure facility; or

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

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

The Select Committee decided that it could not support the deletion of the above two paragraphs. The Committee supported the amendment, proposed by Mr Johnny de Lange in paragraph 1(3), as well as the deletion of the word "unlawful", in the same Clause.lf accepted, the provision will read as follows proposed consequently that Clause 1(3) should read as follows:

(3) 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 contemplated in paragraphs

[(a)(i) to (vi] (a)(i) to (v) of that definition, shall not be involve action resulting in the harm regarded as a terrorist activity within the meaning of that definition.

After discussions between the Chief Whip and COSATU, COSATU agreed that no further amendment in respect of this Clause was necessary. However, on 2004-02-23, COSATU made a further submission in which it is requested that the following further amendments are required:

On page 8, in line 26, to delete "physical integrity".

(iii) endangers the life[,physical integrity] or physical freedom of or violates the physical freedom O{ or causes serious bodily injury to or the death O{ any person, or any number or group of persons;

On page 8, in lines 58 and 59, to delete: ", or by its nature and context, can reasonably be regarded as being intended, in whole or in part, directly or indirectly,".

(b)) which is intended, or by its nature and context, can reasonably be regarded as being intended, in whole or in part, directly or indirectly]

to-

(i) threaten the unity and territorial integrity of a State;

(ii) intimidate, or to induce or cause feelings of insecurity within, the public, or a segment of the public, with regard to its security,

These two proposed amendments were received only after consideration of the Bill by the Select Committee. The amendments proposed by the Select Committee are dealt with hereunder.

PREAMBLE

1. On page 3, in the sixth paragraph, in the fifth line, after "committed", to insert "in accordance with such international law".

AND WHEREAS international law, and in particular international humanitarian 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 recognizes acts committed in accordance with such international law during a struggle waged by peoples, including any action during an 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, as being excluded from terrorist activities;

CLAUSE 1

1. On page 5, after line 39, to insert:

"(iv) 'engages in a terrorist activity', with reference to section 2(1) and (3) and section 3, includes-

(a) the commission, performance or carrying out of;

(b) the facilitation of, participation or assistance in, or contribution to the commission, performance or carrying out of;

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

(d) instructing, directly or indirectly, the-

(i) commission, performance, carrying out of;

(ii) facilitation of, participation or assistance in, or contribution to the commission, performance or carrying out of or

(iii) performance of an act in preparation for or planning of, a terrorist activity, and the expressions 'to engage in a terrorist activity', 'engaging in a terrorist activity' and 'engagement in a terrorist activity' shall be construed accordingly"

2. On page 8, in line 53, after "insurrection, to insert "in the Republic".

(viii) creates a serious public emergency situation or a general insurrection in the Republic,4

3. On page 8, in line 53, after "insurrection, to insert "in the Republic".

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

to-

(i) threaten the unity and territorial integrity of [a State] the Republic;5

4. On page 9, in line 22, to omit "lawful".

(3) For purposes of paragraphs (a)(vi) and (vii) of the definition of" terrorist activity" , any act which is committed in pursuance of any [lawful] 6 advocacy, protest, dissent or industrial action and does not involve action resulting in the harm contemplated in paragraphs (a)(i) to (vi) of that definition, shall not be regarded as a terrorist activity within the meaning of that definition.7

5. On page 9, in line 24, to omit "(a)(i) to (vi), and to substitute "(a)(i) to (v)".

(3) 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) to (vi)] (a)(i) to (v) of that definition, shall not be regarded as a terrorist activity within the meaning of that definition .

6. On page 9, in line 31, after "especially", to omit the first "the".

(4) Notwithstanding any provision of this Act or any other law, any act committed during a struggle waged by peoples, including any action during an 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 international law, especially [the]'0 international humanitarian 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, as defined in subsection

(I).

CLAUSE 2

1. On page 10, from line 1, to omit subsection (2).

COSATU wanted Clause 1(xxiv)(a)(v) and (vi) deleted. Decided that Committee could not accede to COSATU's request- see also the amendment proposed by Mr de Lange in Clause 1(3), that the reference to paragraphs (a)(i) to (vi), be changed to (a)(i) to (v). It was decided by the Committee, to propose only the deletion of the word "unlawful". Any industrial action which would cause the harm referred to in Clause 1(xxiv)(a)(i) to (v), could therefore still fall within the ambit of a terrorist activity, should it also be committed with the required intent and motive. COSATU retracted their proposal, after discussions with the Chief Whip, Mr Surtee.

[(2) For purposes of subsection (1) and section 3 the expression" engages in a terrorist activity" , includes-

(a) the commission, performance or carrying out of;

(b) the facilitation of, participation or assistance in, or contribution to the commission, performance or carrying out of;

(c) the performance of an act in preparation for or planning of; or (d) instructing, directly or indirectly, the-

(i) commission, performance, carrying out of;

(ii) facilitation of, participation or assistance in, or contribution to the commission, performance or carrying out of; or

(iii) performance of an act in preparation for or planning of, a terrorist activity, and the expressions to engage in a terrorist activity" and engagement in a terrorist activity" , shall be construed accordingly"

CLAUSE 15

1. On page 14, in line 37, to omit "that'.

2. On page 14, in line 37, to omit "South Africa", and to substitute "the Republic".

3. On page 14, in line 38, to omit "that'.

4. On page 14, in line 38, to omit "South Africa", and to substitute "the Republic".

Amendments in paragraph 1, 2,3, and 4 indicated:

(2) Any act alleged to constitute an offence under this Act and which is committed outside the Republic by a person other than a person contemplated in subsection (1), shall, regardless of whether or not the act constitutes an offence or not at the place of its commission, be deemed to have been committed also in the Republic if that-

(a) act affects or is intended to affect a public body, any person or business in the Republic;

(b) [that] person is found to be in [South Africa] the Republic; and

(c) [that] person is for one or other reason not extradited by [South Africa] the Republic or if there is no application to extradite that person.

5 On page 14, in line 43, after "resident;" to insert "or".

(3) Any offence committed in a country outside the Republic as contemplated in subsection (I) or (2), is, for the purpose of determining the jurisdiction of a court to try the offence, deemed to have been committed-

(a) at the place where the accused is ordinarily resident;

(b) at the accused person's principal place of business.

CLAUSE 19

1. On page 17, in lines, to omit "Gazette", and to substitute "Gazette".

(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] Gazette.

CLAUSE 25

1. On page 19, in line 27, to omit "Gazette", and to substitute "Gazette".

25. The President must, by Proclamation in the [Gazette] 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 a specific entity as being-

CLAUSE 26

1. On page 19, in line 38, to omit "laid upon the Table", and to substitute "tabled".

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

SCHEDULE

1. On page 21, in the fourth column relating to Act No.87 of 1993, to delete paragraph (a) and to substitute:

"(a) the substitution for paragraph (h) of the following paragraph; "(h) refuses or fails to comply to the best of his or her ability with any lawful requirement, request or order of an officer or employee of the Department, an inspector or a person authorized by the Council; [or]".

2. On page 25, in the fourth column relating to Act No.38 of 2001, to omit

paragraph (a), and to substitute:

"(a) after the definition of 'Director' of the following definition:

'entity' has a corresponding meaning with the [expression] definition in section 1 of the Protection of Constitutional Democracy against Terrorist and Related Activities Act 2004; and".

3. On page 25, in the fourth column relating to Act No.38 of 2001, to delete item 4 and to substitute:

"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]"."

["CONTROL MEASURES FOR MONEY LAUNDERING AND FINANCING OF TERRORIST AND RELATED ACTIVITIES [CONTROL MEASURES]".]

4. On page 26, in the fourth column, from line 30, to omit paragraph (a) and to substitute:

Item 8

"(a) the business has received or is about to receive the proceeds of unlawful activities or property which is connected to an offence relating to the financing of terrorist and related activities;".

5. On page 27, in the fourth column, from line 16, to omit paragraph (b) and to substitute:

Item 8

"(b) that account or other facility has received or may receive the proceeds of unlawful activities or property which is connected to an offence relating to the financing of terrorist and related activities or is being or may be used for money laundering purposes or for the financing of terrorist or related activities or for the purpose of any transaction contemplated in section 29(1)(b)