THE PROTECTION OF CONSTITUTIONAL DEMOCRACY AGAINST TERRORIST AND RELATED ACTIVITIES AMENDMENT BILL 2007 INPUT FROM THE SOUTH AFRICAN POLICE SERVICE

“TERRORIST ACTIVITY” It is relevant to keep in mind that the definition prescribes a three tiered structure: –Nature of conduct –Required intention –Specified motive

AMENDMENT: DEFINITIONS -‘terrorist activity’ Clause 1(a)(vi)(cc) inserts the following: “a system used for the delivery of essential electricity services” -SAPS is of the opinion that the definition already extends to electricity services, as para (vi) merely lists some of the examples. This part of the definition further relates to the intention of the terrorist activity.

AMENDMENT: DEFINITIONS -Amendment of definition of ‘terrorist activity’ Clause 1(b)(ii) inserts the following: “or, in the case of the activities referred to in paragraph (a)(vi) to (vii), result in financial losses” -SAPS is of the opinion that paragraph (b) refers to the intention of the terrorist activities and that the insertion does not contribute to the structure of the definition.

AMENDMENT: DEFINITIONS -Amendment of definition of ‘terrorist activity’ Clause 1(c) inserts the following: “or, in the case of the activities referred to in paragraph (a)(vi) to (vii), purely for financial gain” -SAPS is of the opinion that paragraph (c) refers to the motive behind the terrorist activities and that the insertion does not contribute to the structure of the definition.

‘TERRORIST ACTIVITY’ The issue of cable theft is the underlying motivation for the introduction of the legislation. The Second-Hand Goods Bill, 2008 is presently before the National Council of Provinces and provides inter alia for the control of cable theft and activities related to cable theft. The penalties have been increased substantially and now ranges to a maximum prison sentence of ten years imprisonment.

‘TERRORIST ACTIVITY’ Prosecution of offenders under the Second- Hand Goods Bill, 2008 has the added advantage that motive does not have to be proved as would be the case with prosecution in connection with terrorist activities. Theft and Malicious Injury to Property, as common law offences, may be prosecuted in the High Court, or at least referred to that Court for sentence, where the jurisdiction of the Court determines the maximum penalty.

CONCLUSION The adoption of the draft Bill could boil down to a re- enactment of the offence of sabotage which the SA Law Commission specifically recommended should be repealed. (See para of the SALC Report, Project 105 August 2002 on p643) The proposal in the draft Bill may water down the legislation. During visits of the Rapporteur of the UNHC of Human Rights within the context of the Combating of Terrorism, as well as the UN Counter Terrorism Executive Committee (UNCTED), it was mentioned that the application of the definition of terrorist activity should be monitored, in order not to have a too wide application.