Chapter 4

Laws as Wespons:

Legislating Against Terrorism

Introduction

In terms of its constitution, bill of rights and formal system of government South Africa is a liberal democratic state. People the world over who live in authoritarian and oppressive states covet the freedom and economic opportunities that liberal democratic societies provide. Freedom comes at a price, however. Free societies must tolerate and even welcome high levels of protest, turbulence and extra-parliamentary agitation. In a complex society with a high level of political awareness and political demands, "protest is more than simply a safety valve: it should be regarded as a valuable mode of political communication, criticism and democratic consultation".1 A state that suppresses peaceful protest and agitation loses the right to call itself liberal, while the disillusioned and marginalised in society are often tempted to resort to political violence to express their frustrations.

Liberal democratic societies need to draw a firm line between legitimate, albeit rigorous, protest and dissent, and political violence or the threat of such violence that seeks to infringe the rights and liberties of others. The former should be condoned; the latter must be combated within the rule of law.

This chapter will analyse how South African governments between the 1950s and the 1980s refused to tolerate legitimate political protest. Their response to political protest and dissent was to promulgate ever more Draconian laws and erode the rule of law, persuading many peaceful protestors to resort to political violence. In the end dozens of tough anti-terrorism laws, and a heavy-handed application of these laws by the security forces, fostered rather than prevented insecurity and acts of political violence.

The chapter also describes over 30 pieces of legislation on the South African statute books designed to combat terrorism and related criminal behaviour. A brief description of some important common law crimes that can be used against people engaging in terrorist activities is provided. A number of United Nations conventions and an Organisation for African Unity convention that seek to combat terrorism or crimes committed by terrorists are also discussed. South Africa has acceded to or ratified a number of these conventions and has brought its domestic legislation in line with their requirements.

The chapter further analyses the draft anti-terrorism bill, which was published for comment by the South African Law Commission in mid-2000. The draft bill seeks to create an omnibus statute to address the issue of terrorism and a variety of related crimes in one piece of legislation. The draft bill contains some controversial provisions, notably proposals that suspects can be detained without charge or trial for up to 14 days, and an excessively broad definition of terrorism. These contentious provisions are discussed in some detail, drawing on the views of academics and experts on security legislation.

Finally, the chapter suggests that even the best legislation is ineffective if it is not properly implemented and used by the personnel of the criminal justice system. Many of the existing laws designed to combat terrorism, uphold internal security, and strengthen the hands of the security forces against terror groups are not being used fully. This is because of a variety of operational weaknesses in the criminal justice system such as a lack of detective and prosecution skills, resource constraints, a weak intelligence capacity and insufficient public co-operation with law enforcement agencies. Policy makers need to direct their efforts at these weaknesses, before advocating harsh measures whose purpose is to seek to dilute some of the rights and civil liberties entrenched in the country’s constitution.

The pre-1994 era

From the 1950s onwards an increasing number of security laws were placed on the South African statute books, often to the detriment of civil liberties and the rule of law.2 Much of this legislative history is marked by an escalation of legislative measures from the side of the state and a similar escalation in the response on the side of those against whom the legislation was directed. "Reaction to a law frequently plays a part in subsequent political actions, particularly the strategies and programmes of those intent on upsetting the existing order; a new law is made to counter those strategies and programmes; and so the process continues."3 According to Snyman, the ruling National Party at the time felt that because certain requirements for common law offences were vague and ambiguous and because of problems of proof, effective action against activities undermining the existence and safety of the state was difficult. The statutory offences did not replace the common law offences but supplemented them. It was, for example, common for a person in the 1960s to be charged with a common law offence such as treason and with a number of statutory offences in the alternative.4

Parliament passed the Suppression of Communism Act in 1950 (later to become the Internal Security Act).5 In terms of the act, the executive was granted powers to declare unlawful any organisation whose objectives or activities were considered to be directed at promoting the aims of communism. Communism was widely defined and included any doctrine or plan aimed at revolutionary upheaval. After the Communist Party of South Africa had been declared unlawful, a joint planning council was set up by the African National Congress (ANC), the South African Indian Congress and some former members of the Communist Party. A widespread strike by black workers in June 1950 also saw the launch of a ‘defiance campaign’ to organise resistance against unjust laws. Partly in response to this, two new security laws were placed on the statute books in 1953.

The Criminal Law Amendment Act of 1953 created two criminal offences: incitement to commit offences in campaigning against existing laws, and offer or acceptance of assistance for such campaigning.6 The Public Safety Act of 1953 authorised the executive to proclaim a state of emergency.7 To do so, the executive had to be of the opinion that the safety of the public or the maintenance of public order was seriously endangered, and that the ordinary law of the land was inadequate to enable the government to ensure public safety or to maintain public order.8 The act was used to declare a state of emergency after the events at Sharpeville in 1960. In the same year the Unlawful Organisations Act was promulgated.9 Both the ANC and the Pan Africanist Congress (PAC) were declared unlawful under the provisions of this act. As a result both organisations went underground and embarked on a campaign of sabotage and armed resistance.

In reaction, parliament passed the General Law Amendment Act in 1962, which introduced the statutory crime of sabotage.10 The act gave a very broad definition of sabotage for example, tampering with any water supply, postal or telephone service or any property. The act further provided that the person who committed such an act be considered guilty of the crime of sabotage, unless the accused proved "beyond a reasonable doubt" that the offence was neither objectively calculated nor subjectively intended to produce certain consequences, such as the promotion of general disturbance or the achievement of any political aim.

In the 1960s, the government enacted a spate of detention laws. These laws had the effect of converting what was formerly exceptional (such as detention only during times of war) into the rule; they became permanent rather than emergency detention laws.11 In 1963, another General Law Amendment Act was passed.12 The act inserted a provision in the Suppression of Communism Act that authorised ‘preventive detention’ for up to 12 months at a time. This permitted the detention of persons who the executive was satisfied were engaged in activities endangering or calculated to endanger state security or public order. The 1963 act authorised any commissioned officer to detain a person for interrogation for up to 90 days. Any person could be detained who was suspected by the officer of having committed or intending to commit, inter alia, the crime of sabotage or of possessing information about the commission of, or the intention to commit, such an offence. Access to the detainee was forbidden, except by special consent or by a magistrate on a prescribed weekly visit. The power of the courts to order the release of such a detainee was explicitly excluded. In 1964 the 90-day detention provision was suspended only to be replaced in 1965 with a law permitting a 180-day period of detention.13 Moreover, in 1966 a new General Law Amendment Act was passed providing for the detention of suspected ‘terrorists’ and certain others for interrogation, but only for a period of 14 days, any extension having to be authorised by a court order.14

The Terrorism Act of 1967 created the statutory crime of participating in terrorist activities.15 A particularly grim aspect of the act was a detention provision without a time limit. "Stressing the pressure under which the police force was operating, the minister [of law and order] claimed that the restrictions of the previous year’s law rendered the provision inadequate. He rejected opposition proposals for extension of the 14 days limit, saying the police needed a power, subject only to his directions, of detention ‘for an unspecified time for questioning’."16 A person could be detained if a commissioned police officer of or above the rank of lieutenant-colonel had reason to believe that the person was a terrorist, or was withholding information about terrorism from the police. Release from detention needed only to occur when the minister so directed or the police commissioner considered that all questions had been answered to their satisfaction.

The Affected Organisations Act of 1974 sought to prevent organisations that were declared ‘affected’ under its terms from receiving financial assistance from foreign sources.17 Once an organisation had been declared affected, it became an offence to ask for foreign money for the organisation, or to receive or deal with money from abroad with the intention of handing it over to an affected organisation.

According to de Villiers, the government rejected criticism of the security laws as politically disloyal and unpatriotic, and based on ignorance of the critical facts known only to senior members of the security forces. Critics were also referred to laws and practices in Northern Ireland and Israel. Ordinary legal processes were said to be inadequate because of the intimidation of witnesses, the need to protect informers, secret methods of investigation and the need to act in protection of the public against terrorists before they struck, even on evidence that might be insufficient to convince a court.18

Nevertheless, criticism of many of the security laws became more vocal in the 1970s as an increasing number of people died in detention under the security laws. In 1979, the state president appointed a judicial commission of inquiry (known as the Rabie commission, after its chairman Mr Justice P J Rabie, and later chief justice) to examine the necessity, adequacy, fairness and efficacy of legislation relating to the protection of internal security.19 The commission’s report was tabled in parliament at the beginning of 1982. The recommendations contained in the report were largely accepted and implemented by the government.

The commission recommended that the various statutory crimes that had been created by security laws, particularly sabotage, terrorism and offences relating to communism or state security, be consolidated in order to prevent duplication and overlapping. In addition, it recommended the amendment of the statutory provisions in a number of aspects that had evoked criticism in the past. Precise formulations were substituted for language that had been too wide and too loose. The mandatory minimum sentence of five years, which had applied for most of the relevant crimes, was to be abolished and the sentencing discretion of the courts restored.20 The onus, which had in some cases been placed on an accused to prove a fact or rebut a presumption of guilt ‘beyond reasonable doubt’, was replaced with a lesser onus: that of a ‘balance of probabilities’.21 These recommendations were embodied by the commission in a draft bill that, with little amendment, resulted in the promulgation of the Internal Security Act of 1982.22

On the crucial issue of detention without trial, the commission recommended the retention of indefinite detention for interrogation with some modifications to serve as safeguards against security force abuses against detainees.23 These safeguards were criticised on the basis that they did not "make any inroads into the absolute control that the executive (particularly the police) exercised over the process. It was this absolute control and concomitant absence of any effective checking mechanism that resulted in widespread torture. The fact that, at the time of the appointment of the Rabie Commission, there had been 47 deaths in detention was totally ignored by the commission."24 The commission’s recommendation to retain detention without trial was based "on evidence given before it that information obtained from persons in detention is the most important and, to a large extent, the only weapon of the police for anticipating and preventing terroristic and other subversive activities, and also that information obtained in this way may in appropriate cases be used as evidence in the trial of persons charged" with offences relating to the internal security of the state.25

In line with the Rabie commission’s recommendations, the Internal Security Act consolidated a variety of separate terrorism laws that existed at the time. For example, the act authorised the minister of law and order to declare any organisation unlawful if he was ‘satisfied’ that it engaged in activities that endangered the security of the state or the maintenance of law and order, or promoted the spread of communism in a variety of ways. The act also made provision for indefinite preventive detention. The minister of law and order had the power to issue a notice for the detention of any person for such period as the minister specified. There was no outer limit to the period that the minister could fix for detention, nor was there a legal barrier to the indefinite re-issue of lapsed notices. "In short, the minister could directly, or indirectly by renewals, detain a person for his or her lifetime."26 The minister could exercise his far-reaching powers on any one of three grounds, namely, that he had reason to believe that the person in question would commit the offence of terrorism, subversion or sabotage; that the minister was satisfied that the detainee would endanger the security of the state or the maintenance of law and order; or that he had reason to suspect that a person who had committed a specified offence or political offence would be likely to endanger state security or the maintenance of law and order.

The Internal Security Act empowered the minister of law and order to prohibit the printing, publication or dissemination of any periodical or the dissemination of any other publication. He could exercise this power if ‘satisfied’ that the publication in question endangered state security or the maintenance of law and order, promoted communism, encouraged feelings of hostility between different population groups, or was a substitute for a publication previously banned by the minister.

To its credit, the Rabie commission felt at the time that "in the long run, security legislation by itself can be no guarantee of the maintenance of law and order in the country. Laws designed to combat or to contain unrest and violence cannot remove the circumstances that give rise to unrest and violence. After all, it is known that the existing security laws have not put an end to unrest and violence... the legislation which should be retained, or introduced, is designed to provide for the present and for the near future the means by which order can be maintained as effectively as possible, but that those means cannot in any way offer a solution to the problems that give rise to unrest and violence. The removal of those problems, it seems, calls for solutions in the socio-economic and political spheres."27

The subsequent deterioration of South Africa’s internal security situation from the mid-1980s to the early 1990s gave credence to the commission’s warning. In 1950, when the Suppression of Communism Act was passed, the only reported illegal political activities that took place in South Africa were a one-day strike and a mass protest meeting in opposition to the apartheid policy of the time.28 In the ensuing three decades a plethora of security legislation was promulgated granting the security forces extensive powers while undermining the rule of law and civil liberties. Notwithstanding the state’s tough approach, insecurity increased. In 1984, for example, 175 people were killed in unrest related incidents and 58 incidents of guerrilla insurgency took place.29 In 1990, as many as 3 699 people were killed in political violence in South Africa.30 "The tragic growth of political violence and disorder after decades of Draconian law enforcement makes it impossible to present security policy as one of South Africa’s success stories. In fact, disorder has increased in direct proportion to the application of harsh security measures".31

Anti-terrorism policy after 1994

Government policy

After 1994 the South African Government of National Unity gave its support to initiatives that sought to strengthen international co-operation with the aim of eliminating terrorism. The present government recognises that it is only with the full and committed support of all members of the international community that terrorism can be eradicated. To this end, the South African government actively participated in a variety of international fora and organisations — in particular in the Non-Aligned Movement (NAM), the Organisation of African Unity (OAU), and the United Nations (UN) — to finding ways of combating terrorism.32

In 1998, a new official policy on terrorism was approved. In terms of the policy, terrorism is defined as an incident of violence, or the threat thereof, against a person, a group of persons or property not necessarily related to the aim of the incident, to coerce a government or civil population to act or not to act according to certain principles.

According to its policy on terrorism, the government is committed to:

upholding the rule of law;

never resorting to any form of general and indiscriminate repression;

defending and upholding the freedom and security of all its citizens; and

acknowledging and respecting its obligations to the international community.

Moreover, according to the terrorism policy the government is obliged:

to condemn all acts of terror;



to take all lawful measures to prevent acts of terror and to bring to justice those who are involved in acts of terror;



to undertake to protect foreign citizens from acts of terror in South Africa;



to, in the event of an act of terror in a foreign country and involving a South African citizen, co-operate with the host government to resolve the matter;



not to make concessions that could encourage extortion by terrorists;



not to allow its territory to be used as a haven to plan, direct or support acts of terror;



to support and co-operate with the international community in their efforts to prevent and combat acts of terror;



to use all appropriate measures to combat terrorism; and



to support its citizens who are victims of terrorism.

Bill of rights

South Africa’s constitutionally entrenched bill of rights grants a variety of rights to arrested, detained and accused persons.33 Everyone who is arrested on the suspicion of having committed an offence has the right, inter alia:

to remain silent;



not to be compelled to make any confession or admission that could be used in evidence against that person;



to be brought before a court as soon as reasonably possible, but not later than 48 hours after the arrest; and



to be released from detention if the interests of justice permit, subject to reasonable conditions.

Everyone who is detained, including every sentenced prisoner, has the right:

to choose, and to consult with, a legal practitioner;



to have a legal practitioner assigned by the state at state expense, if substantial injustice would otherwise result;



to challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released; and



to communicate with, and be visited by, one’s spouse or partner, next of kin, chosen religious counsellor and medical practitioner.

Every accused person has the right to a fair trial, which includes the right:

to be informed of the charge with sufficient detail to answer it;



to a public trial before an ordinary court;



to be presumed innocent, to remain silent, and not to testify during the proceedings;



not to be compelled to give self-incriminating evidence;



not to be convicted for an act or omission that was not an offence under either national or international law at the time it was committed or omitted; and



to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing.

Evidence obtained in a manner that violates any right in the bill of rights must be excluded if the admission of that evidence renders the trial unfair or otherwise is detrimental to the administration of justice.

The bill of rights includes a number of other provisions that are relevant when evaluating the constitutionality of some of the statutes discussed in this chapter.

Everyone has the right to freedom of conscience, religion, thought, belief and opinion.34



Everyone has the right to freedom of expression. This right does not, however, extend to propaganda for war, incitement of imminent violence, or advocacy of hatred that is based on race, ethnicity, gender or religion and that constitutes incitement to cause harm.35



Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions.36



Everyone has the right to freedom of association.37



Everyone has the right to freedom of movement.38



Anyone belonging to a cultural, religious or linguistic community may not be denied the right, with other members of that community to form, join and maintain cultural, religious and linguistic associations and other organs of civil society. (This right may not be exercised in a way that is inconsistent with any provision of the bill of rights.)39

The bill of rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.40 The bill of rights may only be amended by a bill of parliament passed by the National Assembly with a supporting vote of at least two-thirds of its members, and the National Council of Provinces with a supporting vote of at least six out of the nine provinces.41 The bill of rights does, however, contain a limitations clause permitting the limitation of rights in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors, including:42

the nature of the right;

the importance of the purpose of the limitation;

the nature and extent of the limitation;

the relation between the limitation and its purpose; and

less restrictive means to achieve the purpose.

Security legislation in South Africa

In 1995, the minister for safety and security requested the South African Law Commission to undertake a review and rationalisation of the country’s security legislation. The minister felt that security legislation existing at the time, including similar legislation promulgated by the former TBVC states or nominally independent homelands, should be repealed.43 The legislation would need to be replaced by a new statute conforming with international norms, the constitution, and the country’s circumstances and requirements.44

A South African Law Commission project committee on security legislation was appointed in October 1998. The project committee is conducting a wide-ranging review of security legislation in South Africa, and concentrates on matters such as:45

a review of terrorism and sabotage legislation so that the country’s obligations in respect of international terrorism are fulfilled;



the protection of classified information in the possession of the state;



a review of the Interception and Monitoring Act, with the aim of granting the state greater powers in intercepting and monitoring communications;



economic espionage that poses a threat to national security;



protection of property and personnel of foreign governments and international organisations in South Africa, including protection from intimidation; obstruction; coercion and acts of violence committed against foreign dignitaries, foreign officials and their family members; and



hostage taking that seeks to compel any government to do, or abstain from doing, any act.

In 1996, parliament passed the Safety Matters Rationalisation Act.46 The act repealed a number of South African statutes dealing with security legislation, including those of the former TBVC states that were clearly inconsistent with the interim constitution. A total of 34 laws were repealed in the process. The operation of the following statutes of the Republic of South Africa were extended to the whole national territory of the country, including that of the former TBVC states:

Riotous Assemblies Act of 1956.

Explosives Act of 1956.

Intimidation Act of 1982.

Internal Security Act of 1982 (only two sections remained in force however).

Regulation of Gatherings Act of 1993.

The South African statute books contain numerous old and new laws that can be used to combat terrorism and related criminal activities. Available to the state are laws that:

protect the country’s internal security (much of it remnants of legislation enacted before 1994);



permit the state to restrict gatherings and demonstrations;



enhance the state’s power to collect information on suspected terrorist organisations; and



target terrorism’s foot soldiers and sources of money: criminal gangs and organised criminal groups respectively.

The summaries of the statutes that follow below focus on aspects of the law which are relevant to the discussion in this chapter: legislation as it applies to terrorist activities and legislation which could be used to investigate, combat and prevent terrorist activities. The summaries focus on aspects of the individual pieces of legislation that could assist the state and its law enforcement agencies to combat terrorism and related criminal activity.

The legislation listed below was on the statute books at the time of writing. However, certain provisions of some of the statutes are likely to be declared unconstitutional in a constitutional challenge.47 For example, South Africa’s post-1994 constitutional dispensation guarantees the right of every accused person to be presumed innocent.48 Thus, in any criminal trial, the onus is on the prosecution to prove its case beyond a reasonable doubt. South African common law has long recognised this right. However, there are a number of laws on the statute books that seek to assist the state in the prosecution of certain offences. These laws create presumptions in the state’s favour by placing an onus on persons accused of certain offences which, on a balance of probabilities they have to rebut by proof to be acquitted of the charges against them. The effect of such presumptions is to impose a ‘reverse onus’ on an accused to disprove an essential element of the criminal charge. Failure to do so, even where reasonable doubt as to guilt exists, results in a conviction of the accused. After 1994, the constitutional court declared a number of such presumptions invalid and unconstitutional.49 Yet a number of such presumptions are still contained in existing statutes discussed in this chapter as they have not been relied upon by the state in the prosecution of accused persons, and have consequently not undergone a constitutional challenge.

Limited use of reverse onus possible? The constitutional court has held that legislation that reverses the onus of proof, and thereby relieves the prosecution of the burden of proving an essential element of an offence, offends against the right to a fair trial. Such legislation is generally unconstitutional and can be saved only by the limitations clause in the bill of rights. The constitutional court has, for example, upheld a reverse onus in a challenge to the National Road Traffic Act of 1989. The act provides that, for the purpose of proving a driving offence in terms of the act or the common law, it is presumed, until the contrary is proved, that the vehicle was driven by the owner.50 The court held that the presumption was triggered only when criminal conduct had been proved and that it was rational to presume that the owners of vehicles drive them, or are aware of who is driving them. It was not unfair to ask a driver to prove to the court that someone else was driving the vehicle. There has been a subtle but noticeable trend among some legal practitioners to place the constitutional rights enjoyed by accused persons into perspective and to place more emphasis on the public’s right to be protected from criminals. Writing in the journal of the South African Bar in 1998, judge Kees van Dijkhorst of the Transvaal Provincial Division of the high court called on the courts to "stop bending over backwards to accommodate the accused". He went on to propose re-examining the accused person’s right to silence, as this right was fettering the proper administration of justice.51 In 1999, the judge president of the Transvaal, Bernard Ngoepe, suggested that some aspects of the constitution might have to be reconsidered. "People are beginning to argue that the constitution is too criminal-friendly. They say they have seen people who, despite strong evidence against them, were acquitted on mere technicalities... If, and I say if, it is the fault of the constitution that criminals escape arrest and conviction, then it must be revisited," judge Ngoepe said.52

Emergency situations

State of Emergency Act of 1997

The act provides for the declaration of a state of emergency in South Africa. According to the constitution, a state of emergency may be declared only when "the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency, and the declaration is necessary to restore peace and order".53

The act permits the president, by proclamation in the Government Gazette, to declare a state of emergency for the whole country, or parts of the country. During a state of emergency, the president may make such regulations as are necessary or expedient to restore peace and order. Regulations governing the detention of persons must provide for international humanitarian organisations to have access to persons detained under such regulations. A declaration of a state of emergency may be effective for no more than 21 days, unless the National Assembly resolves to extend the declaration. The Assembly may extend a declaration of a state of emergency for no more than three months at a time.54 No act of parliament that authorises a declaration of a state of emergency, and no action taken in consequence of a declaration may permit any derogation from a number of provisions in the bill of rights, such as the right to life, human dignity, or the right of an arrested person to remain silent and not to be compelled to make any confession or admission that could be used in evidence against him.55

According to the bill of rights, whenever anyone is detained without trial in consequence of a derogation of rights resulting from a declaration of a state of emergency, certain conditions must be followed.56 These include:

The detainee must be allowed to choose, and to be visited at any reasonable time by, a medical practitioner and legal representative.



The detention must be reviewed by a court as soon as reasonably possible, but no later than 10 days after the date the person was detained. The court must release the detainee unless it is necessary to continue the detention to restore peace and order.



The detainee must be allowed to appear in person before any court considering the detention, to be represented by a legal practitioner at those hearings, and to make representations against continued detention.



The state must present written reasons to the court to justify the continued detention of the detainee, and must give a copy of those reasons to the detainee.



If a court releases a detainee, that person may not be detained again on the same grounds unless the state first shows a court good cause for re-detaining that person.

Civil Protection Act of 1977

The act empowers the minister of provincial and local government to declare a state of disaster. To do so, the minister must be of the opinion that any disaster is of such a nature and extent that extraordinary measures are necessary to assist and protect the country and its inhabitants and to combat civil disruption. The concept ‘disaster’ includes: "Any consequences arising out of terrorism and sabotage contemplated in the Internal Security Act of 1982."57

Defence Act of 1957

The act contains various provisions relating to the combating of terrorism.58 These include the mobilisation of the Citizen Force, the Reserve and the commandos for:

service in the prevention or suppression of terrorism;



compulsory service outside South Africa for the prevention or suppression of terrorism;



the safeguarding of the borders of South Africa for the prevention or suppression of terrorism;



the commandeering of, amongst other things, buildings, vehicles, aircraft and equipment for the prevention or suppression of terrorism; and



assuming control over transport systems for the prevention or suppression of terrorism.

During operations for the prevention or suppression of terrorism the act empowers the president to enforce a censorship over postal, telephonic or radio communication, and over printed matter, photographs and drawings.

Terrorism, sabotage and intimidation

Internal Security Act of 1982

In terms of the act, a person is guilty of the offence of terrorism if he, inter alia, commits (or threatens to commit) an act of violence; or incites, aids, advises or encourages any other person to commit an act of violence with the intent to:

overthrow or endanger the state authority in South Africa;



achieve, bring about or promote any constitutional, political, industrial, social or economic aim or change in the country; or



induce the government to do or to abstain from doing any act or to adopt or abandon any particular standpoint.

The punishment for terrorism is the same as that which may be imposed for treason (that is, life imprisonment).

The act provides a wide definition of terrorism and includes any act of violence committed with the specified intent. According to the South African Law Commission’s project committee on security legislation, the definition of terrorism is not sufficiently wide to cover all acts of modern terrorism, and excludes acts of international or transnational terrorism. In terms of the act, the intent must be directed at the South African government or the constitutional or political dispensation of South Africa. Consequently, a South African citizen who murders or kidnaps a foreign diplomat cannot be convicted of terrorism in terms of the Internal Security Act. The project committee advocates an expansion of the element of intent to provide for violence or threats of violence aimed at states, international organisations, persons or groups of persons other than the South African government or the South African constitutional dispensation.59

In terms of the Internal Security Act, a person is guilty of the offence of sabotage if he, inter alia, commits (or attempts to commit) any act; or conspires with other persons to commit an act; or incites, aids, or advises other persons to commit acts with the intent to:

endanger the safety, health or interests of the public anywhere in South Africa;



destroy, pollute, or contaminate any water supply intended for public use;



interrupt, impede or endanger the manufacture, storage, distribution or supply of fuel, power, water, or of medical, health, educational, police, fire-fighting, ambulance, postal, radio or television services, or any other public service;



cripple or interrupt any industry generally, or the production, supply or distribution of commodities or foodstuffs; or



impede or endanger the free movement of any traffic on land, at sea or in the air.

Upon conviction of sabotage, a person may be sentenced to imprisonment for up to 20 years.

The definition of sabotage is sufficiently broad to include a variety of acts such as bombings and damage of any property that forms part of the public infrastructure. However, the act requires that the intent of the saboteur must be aimed at the public interest or public service. According to the Law Commission’s project committee on security legislation, acts of fear or violence aimed at organisations or individuals, such as the placing of a bomb in the residence of a diplomat, do not qualify as acts of sabotage.60

The Internal Security Act makes it a criminal offence to harbour, conceal or fail to report to the police any person who has committed, or is intending to commit, acts of terrorism or sabotage. The act empowers the minister for safety and security to prohibit any gathering if he deems it necessary in the interests of the security of the state, or for the maintenance of the public peace, or to prevent hostilities between different population groups in the country.

Intimidation Act of 1982

The act is targeted at persons who intend to frighten, demoralise, or incite the public (or a particular section of the population) to do or abstain from doing any act. Any person who does any of these things and commits (or threatens to commit) an act of violence, is guilty of an offence and can on conviction be fined to an amount at the discretion of the court and/or to imprisonment for a period of up to 25 years. Persons who through their behaviour, speech or published writings seek to create fear in other people for their own safety, the safety of their property, or the security of their livelihood are guilty of an offence. Such persons can be fined up to R40 000 and/or imprisoned for up to 10 years.

Assisting and training terrorists

Criminal Law Second Amendment Act of 1992

The act prohibits any person from:

taking part in the control, administration or management of any organisation;



organising, training, equipping or arming the members or supporters of any organisation; or



undergoing training in any organisation,

if the members or supporters of that organisation are organised, trained or armed in order to usurp some or all of the functions of the South African Police Service (SAPS) or the South African National Defence Force (SANDF). A contravention of this provision can lead to a fine or to imprisonment for a period of up to 10 years.

This provision of the act is bolstered by a constitutional provision stating that the "defence force is the only lawful military force in the Republic", and that "other than the security services established in terms of the Constitution, armed organisations or services may be established only in terms of national legislation".61

A 1998 amendment to the Criminal Law Second Amendment Act prohibits a variety of acts connected with military, paramilitary or other similar operations.62 A contravention of this prohibition can lead to a fine as the court may deem fit to impose, or to imprisonment for a period of up to five years. It is prohibited for any person to:

train anyone, or undergo any training, to conduct any military or paramilitary operation;



train anyone, or undergo any training, to construct, manufacture or use any weapon, ammunition, or explosive for the purpose of: endangering life or causing serious damage to property, promoting any political objective, or for military or paramilitary purposes; or



employ two or more persons trained, or intended to be trained, with a weapon, ammunition or explosive with the purpose of: endangering life or causing serious damage to property, promoting any political objective, or for military or paramilitary purposes.

The act defines ‘political objective’ as the bringing about of any constitutional, political, social, economic or industrial change in the country. Moreover, it includes the inducement of any person, including the national, provincial or local sphere of government, to do or abstain from doing any act, or to support or to oppose any person or action. These provisions of the act do not apply to members of the SAPS, any municipal police service, or members of the SANDF who act in the course and within the scope of their duties.

Also excluded — in the case of any act relating to weapons or ammunition — are persons who are registered as security officers in terms of the Security Officers’ Act of 1987, as amended. This is provided that, in the case of an employer, the person acts in good faith in rendering a security service for the protection or safeguarding of persons or property. In the case of an employee, the person must act in the course and within the scope of his employment as such an officer, and with a view to protect and safeguard persons or property.

The Criminal Law Second Ammendment Act permits a director of public prosecutions to identify an offence in which murder, robbery with aggravating circumstances, violence or intimidation is involved as a ‘special offence’, irrespective of what the actual charge is. An accused who is in custody on a special offence may not be released on bail or on warning without the written authorisation of the director of public prosecutions for a period of 120 days, provided the state can commence with the presentation of its case within 60 days of the issue of the certificate declaring the crime in question a special offence.

A court that tries a special offence may sit on any day of the week to ensure that the trial is concluded as soon as possible. The charge sheet or indictment for a special offence must be accompanied by a summary of the substantial facts on which the prosecution relies. If the accused pleads not guilty, the accused must outline the basis of this defence and indicate the extent to which he disputes the facts in the summary. If the accused fails to do this, the court may, in respect of the accused person’s credibility or conduct, draw an unfavourable inference regarding such failure, if the court is of the opinion that such an inference is justified in the light of all the evidence that was adduced at the trial. The court must inform the accused that it may draw such an inference.

According to the act a warrant for the arrest and detention of a person may be issued if a magistrate has reason to believe, on information given under oath by a public prosecutor, that any person is withholding information relating to the possession of prohibited armaments and weaponry from a police officer. Once such a person is arrested, they must be detained in custody for interrogation until the magistrate orders their release when satisfied that the detainee has "satisfactorily replied to all questions at the interrogation or that no useful purpose will be served by his further detention".63 Any person arrested in terms of such a warrant must be brought before a magistrate within 48 hours of being arrested and, thereafter, not less than once every 10 days. The magistrate must, at every appearance, enquire whether the detainee has satisfactorily replied to all questions at his interrogation and whether it will serve any useful purpose to detain him further. A detainee may at any time make representation in writing to the magistrate relating to his detention or release. No person may be detained for more than 30 days. Except for the legal representative of the detainee, only officers in the service of the state acting in performance of their official duties may have access to the detainee, or be entitled to any official information relating to or obtained from the detainee.

Regulation of Foreign Military Assistance Act of 1998

The act regulates the rendering of foreign military assistance by South African persons — both natural and juristic — including citizens, permanent residents and foreign citizens from within the borders of South Africa. The act prohibits anyone from recruiting, using or training persons for, or financing or engaging in, mercenary activity. Mercenary activity is defined as direct participation as a combatant in armed conflict for private gain. It is also prohibited to render or offer any foreign military assistance to any state or organ of state, group of persons, or other entity unless authorisation has been granted by the National Conventional Arms Control Committee. Such an authorisation is unlikely to be granted if it would, inter alia, support or encourage terrorism in any manner.

Foreign military assistance is broadly defined and refers to military services or military-related services, or any attempt, encouragement, or solicitation to render such services in the form of:

Military assistance to a party to an armed conflict by means of: advice or training; personnel, financial, logistical, intelligence or operational support; personnel recruitment; medical or para-medical services; or procurement of equipment.



Security services for the protection of individuals involved in armed conflict or their property.



Any action aimed at overthrowing a government or undermining the constitutional order, sovereignty or territorial integrity of a state.



Any other action that has the result of furthering the military interests of a party to an armed conflict.

Excluded from the ambit of the act are humanitarian or civilian activities aimed at relieving the plight of civilians in an area of armed conflict.

Any person convicted of contravening the aforementioned provisions of the act is liable to a fine and/or to imprisonment (no maximum limit is set). Moreover, the court convicting any person of an offence under the act may declare any armament, weapon, vehicle, uniform, equipment or other property in respect of which the offence was committed or which was used to commit the offence, to be forfeited to the state.

Restricting protest and hatred

Regulation of Gatherings Act of 1993

In terms of the act, organisers of gatherings must give seven days notice to a ‘responsible officer’ appointed by the local authority in whose jurisdiction the gathering is to take place. If this is not reasonably possible, a shorter notice period can be given. The written notice must contain, among other things, the name and address of the convenor of the gathering, the place where the gathering is to take place, and its purpose. The ‘responsible officer’ may prohibit a proposed gathering if he has been given information under oath that such a gathering could result in serious disruptions of traffic, injury to participants or others, or extensive damage to property.

No participant or other person in a gathering or demonstration may by placard, speech or singing, incite hatred of other persons on account of differences in culture, race, sex, language or religion. No participant or other person may perform any act or utter any words calculated or likely to encourage violence against any person or group. The wearing of masks or disguises is prohibited, as is the donning of uniforms similar to those of the security forces.

According to the act, a ‘gathering’ refers to any assembly or procession of more than 15 persons on a public road or place at which: the principles, policy or actions of any government, political party or organisation are discussed, attacked or promoted; or gatherings held to form pressure groups, hand over petitions, or mobilise or demonstrate support for or opposition to the principles, policy or actions of any person or institution. A ‘demonstration’ is where fewer than 16 persons demonstrate for or against any person, cause or action.

The Regulations of Gathering Act repealed a number of provisions in the Internal Security Act of 1982 to do with gatherings. It is interesting to note that in terms of the repealed provisions of the Internal Security Act, gatherings were generally permitted, with the exception of those that were expressly prohibited. In terms of the Regulations of Gathering Act, the situation is reversed with generally all gatherings (of a defined nature) being prohibited unless expressly permitted.64

Riotous Assemblies Act of 1956

The act provides the president with the power to take special precautions to maintain public order or to protect life and property. By proclamation the president may prohibit the transport of explosives or limit the storage, removal or possession of such explosives.

The act also provides for the offence of incitement to public violence. A person is deemed to have committed the offence if "he has acted or conducted himself in such a manner, or has spoken or published such words, that it might reasonably be expected that the natural and probable consequences of his act, conduct, speech or publication would, under the circumstances, be the commission of public violence by members of the public generally or by persons in whose presence the conduct took place or to whom the speech or publication was addressed".

Films and Publications Act of 1996

The act criminalises the actions of any person who knowingly distributes a publication; broadcasts, exhibits in public or distributes a film; or presents an entertainment or play in public which, judged in context:

amounts to propaganda for war;



incites to imminent violence; or



advocates hatred that is based on race, ethnicity, gender or religion, and which constitutes incitement to cause harm.

Such actions can lead, upon conviction, to a fine and a period of imprisonment not exceeding five years. If aggravating factors are present, guilty persons can be sentenced to a fine and imprisonment.

The act defines publication broadly to include, for example, any newspaper, book, pamphlet, poster, photograph, computer software, or soundtrack.65

Prohibition of Disguises Act of 1969

The act states that it is an offence for any person to be found disguised in any manner in circumstances from which it may be reasonably inferred that they had the intention of committing or inciting, encouraging or aiding any other person to commit an offence. The onus is on the accused to show that they did not have the intention. In prosecuting the offence, the state does not have to prove that the circumstances in which the accused was found gave rise to an inference that that person had the intention of committing or inciting, encouraging or aiding any other person to commit any offence, according to the act. A penalty of a fine not exceeding R200 and/or imprisonment not exceeding six months may be imposed on conviction.

Collecting and protecting information

National Strategic Intelligence Act of 1994

The act provides for the establishment of the National Intelligence Co-ordinating Committee (NICOC). NICOC is responsible for the co-ordination of intelligence supplied by the intelligence divisions of the SANDF and the SAPS, the National Intelligence Agency (NIA), and the South African Secret Service.

According to the act, the NIA is responsible for gathering, evaluating and analysing domestic intelligence to identify any threat to the security of South Africa or its people, and to supply intelligence regarding such a threat to NICOC. It is also the NIA’s function to gather, analyse and interpret information regarding counter-intelligence and to supply intelligence relating to threats against the country and its inhabitants to the SAPS for the purposes of investigating any offence. In terms of the Intelligence Services Act, a judge, who is convinced that information which could have a bearing on the functions of the NIA can be obtained on certain premises, may issue the NIA with a direction authorising any of its members to enter and search such premises and to remove any material from them.66

Protection of Information Act of 1982

The act provides for the protection from disclosure of certain information. The act contains provisions relating to prohibited places and certain acts prejudicial to the security or interests of the country. Thus, any person who inspects, is in the neighbourhood of or enters any ‘prohibited place’ for any purpose prejudicial to the security or interests of South Africa, is guilty of an offence and liable on conviction to imprisonment for up to 20 years.

A prohibited place is any defence-related area belonging to, occupied or used by or on behalf of the government, including any military establishment, factory, ship, or aircraft. The president may also, by proclamation in the Government Gazette, declare any place a prohibited place provided the president is satisfied that information with respect to that place, or the loss or damage of the place, could be of use to a foreign state or a hostile organisation. A hostile organisation is any association of persons, movement or institution outside of South Africa, which the president by proclamation in the Government Gazette declares to be hostile. To do so the president must be satisfied that the association of persons, movement or institution incites, commands, aids, encourages or procures any person to commit an act of violence in South Africa for any purpose prejudicial to the security or interests of the country.

Any persons who, for the purpose of assisting anyone to gain admission to a prohibited place, or for any other purpose prejudicial to the country, unlawfully wear any military or police uniform, make a false statement, forge or tamper with any passport or other official document, falsely represent themselves as government employees, or unlawfully possess any official stamp or seal are guilty of an offence. A person convicted of such an offence is liable to a fine not exceeding R5 000 and/or to imprisonment for up to five years.

Anyone who knowingly harbours or conceals someone whom they have reason to believe is about to commit or has committed an offence under the act, or knowingly permits such a person to meet on any premises under their control is guilty of an offence. Moreover, it is an offence to wilfully omit or refuse to disclose to a member of the SAPS any information one can give in relation to a person one has harboured or concealed. The maximum penalty for conviction of either of these offences is a fine of R1 000 and/or imprisonment for 12 months.

Interception and Monitoring Prohibition Act of 1992

The act permits a judge to direct that postal articles, communications and conversations by, to or from a person or organisation be intercepted or monitored. A judge making such a directive must be convinced that a serious offence has been or will probably be committed, and that such an offence cannot be properly investigated in any other manner. The offence under investigation must have been committed over a lengthy period of time, on an organised or regular basis, or have harmed the country’s economy.

A judge may only direct the interception or monitoring of an article or communication for three months at a time. Any member of the SAPS executing a direction may enter into any premises to install a monitoring device, or to intercept a postal article or communication.

The Judicial Matters Amendment Act of 1998 amended the Interception and Monitoring Prohibition Act. The amendment grants the police the authority to intercept and monitor any communication, including electronic mail and fax communication.

A South African Law Commission discussion paper released in 1998 recommends that all telecommunication service providers be obliged by law to acquire, at their own expense, equipment permitting the monitoring and interception of communications on their systems. Moreover, the discussion paper suggests that no South African telecommunication service providers be permitted to provide facilities — from telephones and cell-phones, to the Internet — which are not capable of being monitored.67

Criminal Procedure Second Amendment Act of 1996

In terms of the amendment act, police officers and other authorised persons may use a trap, or engage in an undercover operation, to detect, investigate or uncover the commission of an offence, or to prevent the commission of an offence. Evidence obtained through an undercover operation or a trap is admissible provided that that conduct does not go beyond providing an opportunity to commit an offence. However, even under such circumstances the courts have the discretion of accepting the evidence. In considering whether to admit such evidence, the courts have to weigh up the public interest against the personal interest of the accused, having regard to, inter alia, the seriousness of the offence, the extent of the effect of the trap or undercover operation on the interests of the accused, and the nature and seriousness of any infringement of any fundamental constitutional right.

A police officer or other authorised person acting within the parameters of the act cannot be held criminally liable "in respect of any act which constitutes an offence and which relates to the trap or undercover operation if it was performed in good faith".

Enhanced investigative powers

National Prosecuting Authority Act of 1998

In terms of the act, the president may establish three investigating directorates in the office of the national director of public prosecutions. Investigating directorates are established to investigate and prosecute offences that are not dealt with by the directorate of special operations (‘the Scorpions’). Every investigating directorate consists of an investigating director assisted by one or more deputy directors of public prosecutions, prosecutors, civil servants seconded to the directorate, and any person whose services the directorate requires for a particular inquiry. This permits investigating directorates to be staffed with a multi-disciplinary team of people who can contribute their skills to fulfilling the mandate of the directorate.

Investigating directorates are provided with considerable powers for the fulfilment of their mandates. If an investigating director has reason to suspect that a specific offence has been or is being committed, or that an attempt is being made to commit an offence, an inquiry on the matter may be held. The inquiry may be extended to include any offence that might be connected with the subject of the inquiry.

An investigating director may summon any person who can furnish information on the subject of an inquiry, or who has any document or other object relating to that subject, to appear before him. The summoned person may be questioned under oath by an investigating director (or a person designated by the director), and any document or object may be examined or retained. The summoned person may not refuse to answer any question on the ground that the answer could expose him to a criminal charge.

On obtaining a warrant from a court, an investigating director, or his agents, may enter and search premises in which they suspect anything connected with an inquiry will be. An investigating director may examine any object found on the premises, and request the owner or person in charge of the premises to provide information regarding that object. It is a criminal offence for anyone to refuse to supply requested information, or to give false or misleading information. An investigating director may also seize anything on the premises that might have a bearing on the inquiry in question. Under certain circumstances, premises may also be entered and searched without a warrant.

In early 2001, an amendment to the National Prosecuting Authority Act of 1998 was promulgated, thereby formally establishing the Directorate of Special Operations (DSO) — nicknamed ‘the Scorpions’ — as an investigating directorate of the national prosecuting authority.68 A special investigator of the DSO has the same powers as a member of the SAPS and the powers bestowed upon a peace officer relating to the investigation of offences, the entry and search of premises, the seizure and disposal of articles, the execution of warrants, and the attendance of an accused person in court. The minister of justice and constitutional development may, in consultation with the minister for safety and security, bestow any power on special investigators that relates to the prevention, investigation or combating of any offence or other criminal or unlawful activity.69 A person may be appointed as a special investigator only after information with respect to that person has been gathered in a screening investigation of the National Intelligence Agency, and the national director of public prosecutions, after evaluating the gathered information, is satisfied that the screened person is not a security risk or might act in any way prejudicial to the objectives of the DSO.

Criminal Procedure Act of 1977

The act grants certain powers to police officials to enter premises in connection with matters pertaining to state security or any other offence. A magistrate may issue a warrant authorising a police official to enter and search any premises if it appears from information obtained under oath that there are reasonable grounds for believing that:

the internal security of the country or the maintenance of law and order is likely to be endangered in consequence of any meeting which is being held or is to be held, or



an offence has been, is being or is likely to be committed, or that preparations for the commission of any offence are likely to be made.

Police officials may also enter and search premises without a warrant if they have reasonable grounds to believe that a warrant will be issued to them if they applied for it, and that the delay in obtaining such a warrant would defeat the object of entering and searching premises.

South African Police Service Act of 1995

To restore public order or to ensure the safety of the public in a particular area, the national or provincial commissioner of the SAPS may in writing authorise that a particular area be cordoned off for up to 24 hours. In order to achieve the object specified in such a written authorisation any member of the police may, without warrant, search any person, premises or vehicle. Such a member may also seize any article which has been or might be used in the commission of an offence, or could afford evidence of the commission of an offence.70

Members of the police may dispense with obtaining authorisation from the national or provincial commissioner for the setting up of a roadblock in cases where a delay will defeat the object of the roadblock. In such instances roadblocks may be set up to establish whether a vehicle is carrying:

a person who has been involved in the commission of a serious offence;


a person who is a witness to the commission of a serious offence;


a person who is suspected of intending to commit a serious offence; or


an object which may afford evidence of, or is intended to be used in the commission of a serious offence.

Targeting the tools of terrorism

Armaments Development and Production Act of 1968

The act regulates the manufacture, possession and importation of armaments. The meaning of armaments is broadly defined to include "bombs, ammunition or weapons, or any substance, material, components... of whatever nature capable of being used in the development, manufacture or maintenance of armaments".71

In terms of the act, the minister of defence may, by notice in the Government Gazette, prescribe that no armaments of a specific class or kind be imported into the country or moved inside the country, and moreover, that no specified armaments be developed or manufactured in the country. Armaments may also be classified according to the manner in which, or material from which, they are developed or manufactured. Anyone found guilty of contravening such provisions is liable on conviction to a fine of R10 000 or up to 10 years imprisonment, or both the fine and imprisonment.

Explosives Act of 1956

The act regulates the manufacture, storage, transport, importation, exportation and the use of explosives. A 1997 amendment to the act holds that no person may manufacture, import, possess, sell, supply or export any plastic explosive that is not marked with a detection agent.72 A detection agent is a substance — as laid down by the United Nations Convention on the Marking of Plastic Explosives for the Purpose of Detection — which is mixed into an explosive to enhance its ability to be detected by vapour-detection means.

In terms of the act, ‘inspectors of explosives’ may at any time enter any explosive factory or storage facility for the purpose of inspecting it. Such inspectors may also remove samples of explosives, or ingredients of explosives, for the purposes of analysis and testing.

The act lays down minimum sentences for certain explosive-related offences. Any person who wilfully causes an explosion causing danger to life or property (but without killing anyone) is liable to imprisonment without the option of a fine for a period of between 3 and 15 years. Any person who threatens, or falsely alleges, that any other person intends to cause an explosion whereby life or property is, or may be, endangered, in order to intimidate any person, is liable on conviction to imprisonment for a period of between 3 and 15 years.

Dangerous Weapons Act of 1968

In terms of the act, a ‘dangerous weapon’ is any object, other than a firearm, which is likely to cause serious bodily injury if used to commit an assault. A person who is in possession of a dangerous weapon is guilty of an offence unless they can prove that they at no time had the intention of using the weapon or object for any unlawful purpose. The penalty for conviction of this offence is a fine or a period of imprisonment of up to two years.

The minister for safety and security may, by notice in the Government Gazette, prohibit any person from being in possession of a dangerous weapon. Such a prohibition may also be imposed in respect of a specified gathering or a specific type of gathering.73 Details of the circumstances under which such possession is prohibited, the time period for which the prohibition applies and the weapons covered by the prohibition must be specified in the notice. The act also provides for minimum sentences for violent offences involving dangerous weapons.

Firearms Control Act 74

According to the act, it is an offence to possess a firearm without a licence. Anyone convicted of possessing an unlicensed firearm can be fined or imprisoned for up to 15 years. The possession of ammunition by a person who does not hold a licence in respect of a firearm capable of discharging that ammunition carries with it a maximum penalty of 15 years’ imprisonment. Moreover, the possession of more than 200 cartridges for a legally owned firearm is also an offence with a maximum penalty of 10 years’ imprisonment. The possession of ‘prohibited firearms’ including fully automatic firearms, grenades, bombs and explosive devices is also a criminal offence. The penalty on conviction of possession of a prohibited firearm is a fine or a period of imprisonment of up to 25 years. Persons convicted of trading in any firearm or ammunition without a dealer’s licence can be sentenced to a period of imprisonment of up to 25 years. The same penalty applies for persons convicted of manufacturing any firearm or ammunition without the requisite licence. It is an offence to carry a firearm in a public place unless the firearm is carried, in the case of a handgun, in a holster, rucksack or similar holder, and is completely covered. Failure to carry the firearm in this way can lead to a fine or period of imprisonment of up to two years.

Any police official may search any premises, vehicle, vessel or aircraft and seize any firearm and ammunition that is reasonably suspected of being held in contravention of the act. Any police official may also, without a warrant, take the finger-prints, palm-prints, foot-prints and bodily samples of a person or a group of persons if there are reasonable grounds to suspect that the person(s) have committed an offence punishable with imprisonment for a period of five years or longer. The police official must also have reasonable grounds to believe that the prints or samples will be of value in an investigation by excluding possible perpetrators of the offence investigated.

The act empowers the minister for safety and security, by notice in the Government Gazette, to declare any premises or categories of premises to be firearm-free zones. This means that no person may (unless specifically exempted) carry or store any firearm or ammunition in a firearm-free zone. Anyone who unlawfully carries a firearm or ammunition in a firearm-free zone can, upon conviction, be sentenced to imprisonment for up to 10 years. The unlawful storing of a firearm or ammunition in such a zone can lead to a prison sentence of up to 25 years. Police officials may, without a warrant, search any building or premises in a firearm-free zone if they suspect, on reasonable grounds, that a firearm or ammunition may be present. Police officials may also search any person present in a firearm-free zone.

Non-Proliferation of Weapons of Mass Destruction Act of 1993

The act provides for control over weapons of ‘mass destruction’, that is, a weapon designed to kill, harm or infect people, animals or plants through the effect of a nuclear explosion, or the toxic properties of a chemical or biological warfare agent.75 The act, which is administered by the department of trade and industry, establishes a non-proliferation council which controls all imports, exports and transfers of dual-use technologies, dual-use materials and dual-use items that can be used in the production and operation of weapons of mass destruction. On the recommendation of the council, the minister of trade and industry may, whenever he deems it necessary in the public interest, declare goods which may contribute to the design, development, production, deployment, maintenance or use of weapons of mass destruction, to be ‘controlled goods’. A variety of limitations and restrictions may be placed on the use and procurement of controlled goods.

An inspector appointed by the council may at any reasonable time enter any premises where controlled goods are kept or are reasonably suspected of being kept. An inspector is given a variety of powers for the effective performance of duties. A failure to comply with an inspector’s lawful request is a criminal offence and can result on conviction to a fine or to imprisonment for up to 10 years. Anyone convicted of the offence of falsely representing that any goods or activities fall outside the purview of the act is liable to a fine or imprisonment for up to 15 years.

Nuclear Energy Act of 1999

The act empowers the minister of mineral and energy affairs to control the possession, acquisition, import or export of specified nuclear-related material and equipment. The minister may appoint inspectors who may, after obtaining the necessary warrant, enter any land, premises or place where any nuclear-related material is to be found, or on reasonable grounds is expected to be found. An inspector may also do this without a warrant to perform an inspection necessary for monitoring compliance with the terms of the minister’s authorisation for possessing nuclear-related material, or "any other relevant requirement imposed by the act" with regard to regulated material and activities. Anyone convicted of the offence of unlawfully being in possession of nuclear-related material is liable to a fine or to a period of imprisonment of up to 10 years.

Protecting specific places

National Key Points Act of 1980

The act empowers the minister of defence to declare a place or area as a national key point if it appears to the minister that such a place or area is so important that its loss, damage or disruption or immobilisation may prejudice the country, or whenever the minister considers it necessary or expedient for the safety of the country, or in the public interest. The owners of a national key point must, after consultation with the minister, take steps at their own expense to enhance the security of the key point to the satisfaction of the minister. The minister may make regulations to grant guards employed to protect national key points additional powers in respect of the searching of persons, the examination and seizure of articles and the arresting of persons. Anyone who furnishes information relating to the security measures at any national key point without being legally obliged or entitled to do so, is committing an offence and on conviction is liable to a fine of up to R10 000 and/or a sentence of up to three years of imprisonment.

Control of Access to Public Premises and Vehicles Act of 1985

According to the act, the owner of any public premises or public vehicle (that is, the head of the department of state, division or office that occupies or is in charge of the premises or vehicle) may take such steps as are considered necessary for the safeguarding of those premises or vehicle, as well as for the protection of the people therein. An owner of public premises or a vehicle may also direct that no person may enter those premises or vehicle unless such persons give their names, addresses and any other relevant information; produce satisfactory proof of identity; declare whether they have any dangerous object in their possession; and reveal the contents of any vehicle, bag or container in their possession. Anyone who enters public premises or a public vehicle without permission, provides false information, impersonates an authorised officer, or hinders an officer in his duties is guilty of an offence and liable on conviction to a fine of up to R2 000 and/or imprisonment for up to two years.

Moreover, a person may be searched by an authorised officer if such a person intends to enter premises or vehicles that have been specifically identified by the minister for safety and security by notice in the Government Gazette. Police officers and members of the South African National Defence Force acting in the performance of their duties are exempt from most provisions of the act.

Diplomatic Immunities and Privileges Act of 1989

The act gives effect to the provisions of the Vienna convention on diplomatic relations of 1961. The convention places a ‘special duty’ on the receiving state to take all appropriate steps to protect the premises of foreign missions against any intrusion or damage, and to prevent any disturbance of the peace of the mission. The receiving state is also obliged to take all appropriate steps to prevent any attack on the person, freedom or dignity of a member of the diplomatic staff of a foreign mission.

Specific offences

Civil Aviation Offences Act of 1972

The act grants certain powers to commanders of aircraft to ensure good order aboard aircraft and the safety of the aircraft and persons or property on board the aircraft. The act creates a number of offences relating to aircraft and airports. Anyone who:

on board an aircraft unlawfully seizes control of the aircraft by force, threat of force or intimidation, or assaults someone on the aircraft, thereby endangering the safety of the aircraft;



destroys or damages an aircraft which is likely to endanger its safety in flight;



places on an aircraft a device which is likely to destroy or damage the aircraft and is likely to endanger its safety in flight;



places at an airport a device which is calculated to endanger any person or any vehicle, aircraft, building or air navigation equipment;



wilfully pollutes any aviation fuel; or



performs any other act which may jeopardise the operation of an air carrier, the safety or good order of an airport,

is guilty of an offence and liable on conviction to a period of imprisonment of between 5 and 30 years. Anyone who communicates information that they know to be false and by doing so interferes with the operation of an air carrier or an airport, is guilty of an offence carrying a penalty of imprisonment for up to 15 years, without the option of a fine.

If the minister of transport is of the opinion that any action by any person or group of persons is of such a nature that the safety of anyone in an aircraft or airport, or of any aircraft or airport, is being seriously and immediately threatened, he may issue such orders as are necessary to counter such action. Any member of the SAPS, SANDF or anyone appointed by the minister is permitted to take such steps as he may deem necessary in the circumstances to ensure that the minister’s order is complied with.

Merchant Shipping Act of 1951

According to the act, no person may without a reasonable excuse do anything to obstruct or damage any equipment on a ship, or obstruct, impede or molest any of the crew in the navigation and management of the ship. Anyone convicted of contravening this provision can be fined or imprisoned for a period of up to one year. Moreover, it is illegal to go on board a ship without the permission of the ship’s owner or the person in charge of the ship. Similarly, to remain on board a ship in a South African port after being required to leave by the owner, captain of the ship or police officer is an offence. In convicting a person of contravening either of these two provisions, a court may impose a fine or a period of imprisonment of up to three months.

Criminal laws

For the purpose of predicting the efficacy of anti-terror legislation it is possible to distinguish between two types of terrorists.76 There are those who are loners who in an unpredictable moment of hate, jealousy, spite or madness go out and set off a bomb or shoot into a crowd. It is almost impossible for the state to prevent such actions through legislation. Such ‘terrorists’ are likely to be fairly inconspicuous individuals who do not otherwise engage in noticeable criminal behaviour. Even states with well-resourced anti-terrorist capabilities usually have no forewarning or foreknowledge of such a person.

Then there are terrorists who belong to some sort of gang, organisation or structure that seeks to make a political, religious or other point by engaging in terrorism. The potential terrorist attached to a cause or an organisation is easier to pinpoint. In many cases the state has a good idea of who, attached to what organisation, is likely to be engaged in future terrorist activities. While it might appear tempting to promulgate severe laws to remove such ‘suspects’ from society, this might prove to be unnecessary. There are a number of pieces of legislation on the statute books that permit the state to prosecute and convict such people even before they engage in any terrorist-type violent acts.77 The most important of these are discussed below.

Terrorist groups usually engage in a number of illegal activities. These activities include offences related to the preservation of the group and group power (murder, assault, kidnapping) and those related to the underground economic activities of the group to finance or support its activities (burglary, theft, robbery, drug trafficking, brothel keeping, and dealing in stolen or illegal items such as firearms and explosives). A closer look at the legislation (and common law) dealing with some of these crimes shows that the state is often provided with additional powers of investigation and legal presumptions that favour the prosecution service. Moreover, many of these crimes tend not to rely on the testimony of civilian witnesses (who are easily intimidated and even eliminated) for a successful prosecution. It is likely that the state could be more successful in obtaining convictions against suspected terrorists on these kinds of offences rather than the internal security type of legislation focusing specifically on criminal terrorist acts. While some of the legal assumptions are open to constitutional challenge, these types of crimes are often committed in a blatant manner.78

Legislation dealing with minimum sentences is analysed. Minimum-sentencing legislation is a potentially effective sanction against suspected terrorists who are convicted of non-terrorist type crimes covered by the legislation. Such convicted persons can be sentenced to lengthy periods of imprisonment for a wide range of crimes ranging from murder to the illegal possession of a pistol.

Prevention of Organised Crime Act of 1998

In the 1990s, a trend developed whereby terrorist groups increasingly sought a partnership with organised crime. Forming a ‘symbiotic relationship’, terrorist groups and organised crime syndicates co-operate to further their aims. Some terrorist groups also get directly involved in organised criminal activities to raise money for their activities. "Economic motives [for terrorists] have become as important as political and religious motives."79 The Prevention of Organised Crime Act, directed at organised crime syndicates and their foot soldiers — criminal gangs — is thus a potentially useful tool in the hands of the state to combat terrorism.

The act creates a number of offences relating to criminal gangs. It defines a criminal gang as any formal or informal ongoing organisation of three or more persons, "which has as one of its activities the commission of one or more criminal offences, which has an identifiable name or identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity". Criminal gang members or participants of such gangs are guilty of an offence if they, inter alia, wilfully aid any criminal activity committed for the benefit of, or in association with, a criminal gang. Moreover, any person who promotes, or contributes towards, a pattern of criminal gang activity, or incites, aids or encourages any person to commit or participate in a pattern of criminal gang activity, is guilty of an offence. Persons found guilty of such offences are liable to a fine and to imprisonment ranging from three to eight years.

Provided the state has an idea about which person attached to what organisation is likely to be engaged in acts of terrorism in the future, and the organisation fits the description of a ‘criminal gang’, a successful prosecution of such an individual should be possible. The provisions of the act relating to criminal gangs can be used to convict persons against whom there is insufficient evidence of direct terrorist activities, or those who have merely threatened but not yet committed a serious crime.80

To assist the courts in determining whether a particular person is a member of a criminal gang, the act says the courts may have regard to certain factors. These are that such a person:

admits to criminal gang membership;



is identified as a member of a criminal gang by a parent or guardian;



resides in or frequents a particular criminal gang’s area and adopts their style of dress, their use of hand signs, language or their tattoos, and associates with known members of a criminal gang;



has been arrested more than once in the company of identified members of a criminal gang for offences which are consistent with usual criminal gang activities; and



is identified as a member of a criminal gang by physical evidence such as photographs or other documentation.

Drugs and Drug Trafficking Act of 1992

The act provides for tough penalties for those convicted of dealing in drugs. For example, anyone convicted of unlawfully dealing in any dangerous dependence-producing substance is liable to a period of imprisonment of up to 25 years (or 10 years if it is simply a dependence-producing substance) and/or a fine as the court may decide to impose. Anyone convicted of unlawfully using or possessing any dangerous dependence-producing substance is liable to imprisonment for a period of up to 15 years (or five years if it is a dependence-producing substance) and/or a fine as the court may see fit to impose.

The owner, occupier or manager of any place of entertainment who has reason to suspect that anyone at the place of entertainment has drugs in their possession or deals in drugs, is obliged to report this suspicion to a police official. Failure to do so is an offence and can, upon conviction, lead to a sentence of imprisonment for a period of up to 15 years and/or a fine as the court may deem to impose.

In terms of the act, a police official may, if there are reasonable grounds to suspect that an offence has been committed under the act, enter or board and search any premises, vehicle, vessel or aircraft. Moreover, a police official may search any person if there are reasonable grounds to suspect them of having committed or being about to commit an offence under the act. Failure to co-operate with a police official in these instances is an offence and can lead upon conviction to a period of imprisonment of up to 12 months and/or a fine.

Whenever it appears to a magistrate, from information submitted by a director of public prosecutions, that there are reasonable grounds for believing that a person is withholding any information about a drug offence, the magistrate may issue a warrant for the arrest and detention of such a person. Persons arrested in this manner shall be detained until the magistrate orders their release when satisfied that the detainee has satisfactorily replied to all questions at the interrogation or that no useful purpose will be served by further detention. Any person arrested in terms of such a warrant must be brought before a magistrate within 48 hours of their arrest and, thereafter, not less than once every 10 days. Only officers in the service of the state, acting in performance of their official duties, and the legal representative of the detainee may have access to the detainee.

Criminal Law Amendment Act of 1997

The act provides for minimum sentences to be imposed on persons convicted of certain offences.81 Judicial officers may only impose sentences lower than the prescribed minima if they are "satisfied that substantial and compelling circumstances exist which justify the imposition of a lesser sentence".82

For example, the act mandates life imprisonment for persons convicted of a murder, where: 83

it was planned or premeditated;


the victim was a law enforcement officer, or a person likely to give material evidence in a criminal trial; or


it involved rape or robbery with aggravating circumstances.

The act mandates a prison sentence of 15 years for a first offender convicted of murder in circumstances other than those referred to above; robbery with aggravating circumstances (including vehicle hijacking); certain drug-related offences; the smuggling of firearms; the illegal possession of automatic or semi-automatic firearms; and commercial crimes where large amounts of money are involved.84 On a second conviction for one of these offences the act lays down a 20-year prison sentence, which increases to 25 years for a third conviction.

Even relatively minor offences such as theft and malicious damage to property carry a five year prison sentence (10 years on a third conviction) if at the time of the offence the accused had a firearm in his posession, with the intention of using it in the execution of the crime.

Common law crimes

Apart from the above-mentioned statutory provisions, South African common law can be used in the prosecution of persons who engage in terrorist activities.85 The unlawful and intentional killing of a person is a murder irrespective of whether it takes place in the context of a domestic dispute or a terrorist bombing. Common law offences that have been used to prosecute persons guilty of terrorist acts include treason, sedition, public violence, murder, kidnapping, arson, culpable homicide, assault and malicious injury to property. It is useful to describe the first three of these common law crimes in more detail as their application is potentially a broad one.

Treason

Treason is "any overt act unlawfully committed by a person owing allegiance to a state with intent to overthrow, impair, violate, threaten or endanger the existence, independence or security of the state or to overthrow or coerce the government of the state or change the constitutional structure of the state".86 Treason includes such actions as taking up arms to force the government to adopt a different policy, or to replace the structures of government.87 The courts have held that failure to report an act of treason being committed, or about to be committed, constitutes an act of treason.88 According to Burchell and Milton, although the constitutional court has declared the death penalty unconstitutional, it has expressly left open the question whether its decision also applies to the crime of treason.89

Sedition

Sedition consists of "unlawfully gathering together with a number of people, with the intention of impairing the authority of the state by defying or subverting the authority of its government, but without the intention of overthrowing or coercing the government".90 The courts have held that the purpose of the gathering must be to challenge, resist or defy the authority of the state such as convening peoples’ courts and assuming law-enforcement functions of the police.91 According to Burchell and Milton, there are three points of distinction between treason and sedition. First, for treason there must be hostile intent to overthrow or coerce the government; for sedition all that is required is intent to defy or subvert the authority of the executive. Second, for treason any overt act committed with hostile intent suffices; for sedition there must be a gathering of a number of people. Third, for treason the accused must owe allegiance to the state against which he acts; for sedition it would seem he need not.92

Public violence

Public violence is the unlawful and intentional commission, by a number of people acting in concert, of acts of sufficiently serious dimensions which are intended to forcibly disturb the public peace or security or to invade the rights of others. The crime of public violence involves the punishment of an individual for the unlawful conduct of a group of people. The crime does not require that the wrongdoer should have committed some act of violence. It is sufficient that the wrongdoer is associated with the group of people who collectively perpetrated acts of violence. The violence may be directed either at persons or at property, and the conduct need merely be intended to disturb the peace or invade the rights of others.93

Regional and international conventions 94

The combating of terrorism is approached differently by the various international fora in which South Africa is engaged. A number of international conventions seeking to combat forms of terrorism exist that do not define what terrorism is, as the international community is careful not to oppose the legitimate struggle for freedom and self-determination. There are consequently a number of conventions that condemn specific acts of terrorism only. Thus, the United Nations (UN) has adopted an approach of legislating for specific crimes that are normally associated with terrorism. The UN has adopted 11 treaties using this approach.

he Organisation for African Unity (OAU) and the Non Aligned Movement (NAM) have adopted a comprehensive approach to terrorism by adopting an overarching convention on terrorism. South Africa, as a member of both the OAU and the NAM, supports the latter approach and actively participated in the elaboration and adoption of the OAU convention on the prevention and combating of terrorism, which is a comprehensive regional convention on terrorism. South Africa also actively participates in the development of individual UN conventions that seek to combat terrorism. In essence, the purpose of most conventions is to ensure international co-operation in prosecuting or extraditing terrorist offenders, thereby ensuring that there is no safe-haven for terrorists.95

A country that signs a convention indicates that it agrees with the text of the convention; the convention is, however, not legally binding on the signing country. A convention becomes legally binding once a country becomes a party to the convention by either ratifying or acceding to the convention. For a country to become a party to a convention parliamentary authorisation is required, and that country’s domestic laws must be brought in line with the requirements of the convention (or protocol). South Africa has not ratified or acceded to a number of the UN conventions against terrorism listed below, as its domestic legislation is not in line with the requirements of these conventions.96

OAU convention

The Organisation of African Unity convention on the prevention and combating of terrorism, 1999

South Africa signed the convention in July 1999, but had not ratified it at the time of writing. The convention defines a terrorist act as any act which is in violation of the criminal laws of a state party (that is a member state of the OAU that has ratified or acceded to the convention) and that may endanger the life, physical integrity or freedom of — or cause serious injury or death to — any person(s), or causes damage to public or private property, natural resources, environmental or cultural heritage, and is intended to:

intimidate, put in fear, force, coerce or induce any government, institution, the general public or any segment thereof, to do or abstain from doing any act, or to adopt or abandon a particular standpoint;



disrupt any public service, the delivery of any essential service to the public or to create a public emergency; or



create general insurrection in a state.

The convention also defines as a terrorist act any promotion, contribution to, aid, encouragement, threat, organising or procurement of any person with the intent to commit any of the aforementioned acts.

State parties undertake to review their national laws and establish criminal offences for terrorist acts as defined in the convention. Such acts must be made punishable by appropriate penalties that take into account the "grave nature of such offences".

The convention excludes from its definition of terrorist acts "the struggle waged by people 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".97 However, "political, philosophical, ideological, racial, ethnic, religious or other motives shall not be a justifiable defence against a terrorist act".98

According to the convention, state parties are forbidden from any activities aimed at organising, supporting, financing, committing or inciting to commit terrorist acts, or providing havens for terrorists, including the provision of weapons and their stockpiling in their countries and the issuing of travel documents. In particular, state parties are obliged to:

prevent their territories from being used as a base for the planning, organisation or execution of terrorist acts;



develop and strengthen methods of monitoring and detecting plans or activities aimed at the illegal cross-border transportation of arms and other materials for committing terrorist acts;



strengthen the protection and security of persons and diplomatic missions, and premises of regional and international organisations, accredited to a state party, in accordance with the relevant conventions and rules of international law;



promote the exchange of information and expertise on terrorist acts;



take all necessary measures to prevent the establishment of terrorist support networks;



ascertain, when granting asylum, that the asylum seeker is not involved in any terrorist activity;



arrest the perpetrators of terrorist acts and try them in accordance with national legislation, or extradite them; and



establish effective co-operation between relevant domestic security officials and services and the citizens of the state parties in a bid to enhance public awareness of the scourge of terrorist acts and the need to combat such acts, by providing guarantees and incentives that will encourage the population to give information on terrorist acts that may help to arrest their perpetrators.

UN conventions

In December 1994, the United Nations General Assembly adopted a resolution which identified 11 international UN conventions or instruments on terrorism, a number of which South Africa still has to accede to, sign or ratify.99

Tokyo convention on offences and certain other acts committed on board aircraft, 1962

The convention applies to acts affecting in-flight safety. It authorises an aircraft’s commander to impose reasonable measures, including restraint, on any person interfering with, or threatening, the in-flight safety of an aircraft. South Africa acceded to the convention in May 1972.

Hague convention on the unlawful seizure of aircraft, 1970

The convention makes it an offence for any person on board an aircraft in flight "unlawfully, by force or threat thereof, or any other form of intimidation, to seize or exercise control of that aircraft" or to attempt to do so. Parties to the convention are required to make aircraft hijackings punishable by "severe penalties". South Africa ratified the convention in May 1972. The Civil Aviation Offences Act of 1972 gives effect to the Tokyo, Hague and Montreal conventions. The act criminalises, in general, the interference with aircraft in flight, or endangering flight crew, passengers, aircraft and aviation facilities.

Montreal convention for the suppression of unlawful acts against the safety of civil aviation, 1971

The convention makes it an offence for any person unlawfully and intentionally to perform an act of violence against a person on board an aircraft, if that act is likely to endanger the safety of the aircraft. It is also an offence to place an explosive device on an aircraft. The convention mandates "severe penalties" for persons guilty of the aforementioned acts. South Africa ratified the convention in May 1972.

Convention on the prevention and punishment of crimes against internationally protected persons, including diplomatic agents, 1973

The convention defines internationally protected persons as a head of state, a minister of foreign affairs, a representative or official of a state or of an international organisation who is entitled to special protection from attack under international law. The convention requires each party to criminalise and make punishable "by appropriate penalties which take into account their grave nature", the murder, kidnapping, or other attack upon the person or liberty of an internationally protected person; or, a violent attack upon the official premises, the private accommodations, or the means of transport of such a person. South Africa had not ratified the convention at the time of writing. In South Africa, internationally protected persons enjoy the same common law protections as any South African citizen. The Diplomatic Immunities and Privileges Act of 1989 affords certain privileges and protections to some classes of internationally protected persons (see above).100

Convention on the physical protection of nuclear materials, 1979

The convention criminalises the unlawful possession, use and transfer of nuclear material, the theft of nuclear material, and threats to use nuclear material to cause death or serious injury to any person, or substantial damage to property. The convention had been signed but not ratified by South Africa at the time of writing. Most provisions of the convention are contained in the Nuclear Energy Act of 1999 (see above).

International convention against the taking of hostages, 1979

The convention provides that "any person who seizes or detains and threatens to kill, to injure, or to continue to detain another person, or a group of persons, to do or abstain from doing any acts as an explicit or implicit condition for the release of the hostage commits the offence of taking of hostages within the meaning of this convention". South Africa had not ratified the convention at the time of writing. In terms of the South African common law, the crime of kidnapping is committed when a person is unlawfully and intentionally deprived of their freedom of movement. Hostage taking falls within the common law definition of kidnapping. Moreover, the definition of intimidation contained in the Intimidation Act of 1982 is broad enough to include hostage taking.101

Protocol for the suppression of unlawful acts of violence at airports serving international civil aviation, 1988

The protocol extends the provisions of the 1971 Montreal convention for the suppression of unlawful acts against the safety of civil aviation, to encompass terrorist acts at airports serving international aviation. The extended convention was ratified by South Africa in September 1998. The provisions of the protocol are partly addressed in the Civil Aviation Offences Act of 1972 (see above).

Convention for the suppression of unlawful acts against the safety of maritime navigation, 1988

The convention makes it an offence for a person to seize or exercise control over a ship by force, threat, or intimidation. It is illegal for a person to perform an act of violence against a person on board a ship if that act is likely to endanger the safe navigation of the ship. It is also an offence for a person to place a destructive device or substance aboard a ship. South Africa had not ratified the convention at the time of writing. Most of the provisions of the convention are contained in the Merchant Shipping Act of 1951 (see above).

Protocol for the suppression of unlawful acts against the safety of fixed platforms on the continental shelf, 1988

The protocol establishes a legal regime similar to the regimes established in respect of international aviation, applicable to acts against fixed platforms on the continental shelf. South Africa had not ratified the protocol at the time of writing.

Convention on the marking of plastic explosives for the purposes of detection, 1991

Plastic explosives, popular amongst international terrorists, are extremely pliable and can be formed into innocuous looking objects, making them difficult to detect. Plastic explosives can be marked by mixing them with highly vaporous chemical agents rendering the explosives detectable by detection devices at, for example, airports. The convention seeks to control and limit the use of unmarked and undetectable plastic explosives. Parties to the convention are obliged to ensure effective control over ‘unmarked’ plastic explosives in their respective territories. South Africa ratified the convention in December 1999. The convention was incorporated into South African law through the Explosives Amendment Act of 1997 (see ‘Explosives Act’ above).

International convention for the suppression of terrorist bombings, 1997

The purpose of the convention is to enhance international co-operation to eliminate the use of explosives or other lethal devices in acts of terror. Conduct that amounts to the unlawful and intentional delivery, placement, discharge or detonation of explosives or other lethal devices into or against public places, state facilities, infrastructure facilities or public transportation systems is prohibited. Such actions constitute an offence in terms of the convention where the intention is to cause death, serious bodily injury, or extensive destruction that results in actual or potential economic loss of such places or facilities. South Africa signed the convention in December 1999, but had not ratified it at the time of writing.

Omnibus anti-terrorism law

Support for tougher law

During 1998, some 667 attacks that police alleged were gang or terror related — including pipe bombings, petrol bombings and drive-by shootings — were perpetrated in the greater Cape Town area.102 While 168 arrests were made as a consequence of these attacks, none resulted in a successful prosecution. On the first day of 1999, a car bomb exploded outside the well-known shopping and tourist destination, the V&A Waterfront in Cape Town, injuring two people. A few weeks after the Waterfront blast another car bomb exploded just metres from the entrance to the Caledon Square police station in central Cape Town, injuring 11. In November 1999, a bomb placed inside a popular beachfront restaurant in the city injured 48. A few days before the end of that year — on Christmas Eve — a police vehicle was ambushed. The seven police officers in the vehicle, who were responding to a telephonic bomb threat, were injured as a bomb exploded outside of a restaurant they had driven to in order to investigate the threat.

As a result of these bomb blasts, and strong public pressure to act against the perpetrators of acts of terror, governmental policy makers announced their intention to promulgate tough anti-terrorism legislation for South Africa.103 The acting premier of the Western Cape, Peter Marais, called for constitutional amendments, in particular, to provisions that give terror suspects the right to remain silent and that require for them to be released within 48 hours or be charged. "The police could not be expected to build watertight cases against terrorists in such a short period", and "you can’t tell me that a terrorist who has killed 100 people with a bomb deserves the right to silence after being arrested," Marais said.104 The minister for safety and security, Steve Tshwete, also called on parliament to amend the constitution to extend the 48 hours rule, and to restrict suspected terrorists’ access to legal representation during this period.105 The minister of intelligence, Joe Nhlanhla, has argued for special legislative measures to combat terrorism. An African National Congress official, who supported Nhlanhla’s view felt that the "drafters of South Africa’s constitution made a mistake in insisting that suspects for all categories of crimes be charged within 48 hours. An amendment to deal with terror suspects will not be controversial. The fact is that the heart of intelligence work happens after the suspect is detained."106

In early 2001, the minister of justice and constitutional development, Penuell Maduna, and minister Tshwete argued that new legislation was necessary because the lack of specific anti-terrorism legislation made South Africa a "safe haven" for international terrorists and fugitives. Tshwete said that a draft anti-terrorism bill released by the South African Law Commission was to be passed into law during 2001.107

One versus many

Governments can respond to terrorist activities in one of two ways. First, acts of terror such as murder, kidnapping, arson or intimidation can be prosecuted in terms of existing criminal law. The person who bombs a restaurant and thereby kills someone is guilty of murder irrespective of the motive. Second, specific legislation can be created which seeks to broaden the jurisdiction of the courts to, for example, deal with forms of terrorism committed outside the country’s borders, and to prescribe to the courts especially severe sentences in respect of terrorist acts. With the release of a draft anti-terrorism bill in mid-2000, the South African Law Commission committed itself to the latter option of an omnibus act addressing the issue of terrorism on a broad basis.108 The commission’s omnibus draft bill is based on the research and a preliminary draft bill drawn up by the South African Police Service (SAPS).

The commission motivates its support for one comprehensive anti-terrorism statute on the practical ground that there is a worldwide trend to create specific anti-terrorism legislation based on international instruments relating to terrorism. If South Africa ratifies or accedes to the various international instruments relating to terrorism, it can follow one of two courses of action. First, the various government departments that are responsible for the implementation of the instruments can amend existing legislation on such issues as nuclear energy, civil aviation or internationally protected persons, to meet with the requirements of the conventions and treaties South Africa has ratified. Second, one comprehensive anti-terrorism statute can be promulgated to address the issue of terrorism on a broader basis, thereby complying with South Africa’s international obligations in one piece of legislation.109

Anti-terrorism bill

Terrorism

The draft anti-terrorism bill (hereinafter called ‘the bill’) proposes that anyone who commits a ‘terrorist act’ (including outside of South Africa) commits an offence and will be liable, upon conviction, to life imprisonment. The bill’s definition of terrorist act is broad and includes any act which does or may endanger the life, physical integrity or freedom of any person, or causes or may cause damage to property, and is calculated to:

intimidate, coerce or induce any government, persons or the general public;



disrupt any public service, the delivery of any essential service to the public or to create a public emergency; or



create unrest or general insurrection in any state.

The bill’s definition of a ‘terrorist act’ has been criticised for being too broad.110 The definition includes lawbreakers who would clearly not be terrorists in the normal meaning of the word. For example, the definition includes "any act which may cause damage to property and is intended to disrupt any public service". Minibus taxi owners who blockade a street used by municipal bus services, and where some parked vehicles are subsequently damaged, or a group of youths who destroy a Post Office letterbox would be guilty of committing a terrorist act as defined by the bill. In its submission on the bill, Amnesty International raises the concern that the broad definition could encompass legitimate activities, such as trade union strikes that result in damage to property or the disruption of the delivery of essential services.111 "If the definition remains vaguely or too widely worded, then the danger exists that the provision of the law will be open to abuse or used for repressive purposes," Amnesty International argues.112

The bill seeks to criminalise the actions of those who provide material support in respect of terrorist activities. For example, anyone who provides material, logistical or organisational support, knowing or intending that such support will be used in the commission of an offence in terms of the bill, is deemed to have committed a criminal offence. The same would apply to anyone who participates in the activities of a terrorist organisation. On conviction of such an offence, a penalty of up to 10 years imprisonment, without the option of a fine, is proposed. Moreover, anyone who conceals a person knowing that that person intends to commit or has committed an offence in terms of the bill, also commits an offence. The proposed penalty for concealing such a person is the penalty for the offence that the concealed person intended to commit or has committed. For example, if X conceals a person who intends to commit a terrorist act and X is aware of this intention, then X can, on conviction, be sentenced to life imprisonment.

The bill proposes that any person who is a member of a "terrorist organisation" commits an offence through such membership and would be liable, on conviction, to imprisonment for up to five years without the option of a fine. The bill defines a terrorist organisation broadly as "an organisation which has carried out, is carrying out or plans carrying out terrorist acts". Given the broad definition of what constitutes a terrorist act, such a provision could be used to criminalise the actions of a wide range of people. Using the aforementioned example, this could apply to all members of a taxi organisation that organise a street blockade, whether such members are actually involved in the blockade or not. Moreover, to secure a conviction under this provision the state would not have to prove that an accused person knew that he was a member of a terrorist organisation. The state would merely have to prove membership of a terrorist organisation.113 The concern has been raised that the creation of such a membership offence could result in the prosecution of a member of a particular organisation even though such a person is unaware that the organisation is regarded as a terrorist organisation.114

The Law Commission’s project committee on security legislation raises the question of whether it is necessary to make provision for the banning of organisations in order to assist the police and prosecution service in the performance of their tasks. The original drafters of the bill — the SAPS — argue against providing for a mechanism for proscribing or banning organisations. In 1996, the section of the Internal Security Act that provided for the banning of organisations was repealed. The thinking at the time was that it is more expedient to target criminal activities than to ban organisations. In the past, the banning of organisations led to a proliferation of new structures and a growing list of organisations that had to be identified and monitored by the security forces.115 It is also likely that legislation permitting the banning of organisations is at risk of being unconstitutional.

The bill provides for creating the specific offence of "terrorist bombings". That is, anyone who unlawfully and intentionally places or detonates an explosive or other lethal device in a place of public use or government facility, with the intent to cause death or serious bodily injury, or to cause extensive damage that is likely to result in major economic loss, commits an offence, and is liable upon conviction to life imprisonment.116 The Law Commission’s project committee questions the need for making a separate provision for terrorist bombings, as such actions are covered under the definition of terrorist acts. The SAPS, however, argues the intent required under the terrorist-bombing clause is different and easier to prove than the intent required for terrorist activity.117

Specific offences

The bill proposes that aircraft hijacking be regarded as a specific offence punishable, on conviction, by mandatory life imprisonment. The same penalty is also proposed for anyone convicted of taking someone hostage and threatening to kill, injure or continue to detain the hostage in order to compel a state, international governmental organisation or person to do or abstain from doing any act. The offence of endangering the safety of maritime navigation is also provided for in the bill, punishable by a fine or imprisonment of up to 20 years, or life imprisonment if somebody is killed as a result of the criminal conduct.

The bill provides for a number of offences in respect of internationally protected persons. That is, persons who enjoy immunities and privileges in terms of the Diplomatic Immunities and Privileges Act of 1989 (see above). The offences deal with attacks upon, and the murder and kidnapping of, internationally protected persons, and damaging or trespassing upon the property of internationally protected persons.

Specific offences in respect of nuclear terrorism are catered for in the bill. Anyone who unlawfully and intentionally possesses or uses radioactive material, or damages a nuclear facility with the intent to cause death or serious bodily injury or to cause substantial damage to property or the environment, commits an offence and is liable on conviction to life imprisonment. The same penalty is also proposed for accomplices to such offences.

Detention

The bill provides that a judge may issue a warrant of detention when, on the ground of information submitted under oath by a director of public prosecutions, "there is reason to believe that any person possesses or is withholding from a law enforcement officer any information regarding any offence" contained in the bill. The concern has been raised that the provision is so widely phrased that it could include journalists, lawyers or family members of terror suspects.118 It has also been argued that such a blanket approach relating to any offence contained in the bill can "turn detention without trial into a blunt instrument capable of being effectively deployed against political opponents — as was the case in the past".119 The bill proposes that a person be detained for interrogation until a judge orders his release, if satisfied that the detainee has satisfactorily replied to all questions under interrogation or that no lawful purpose is served by further detention. The detention period may, however, not be longer than 14 days. A person detained in this manner does not have the right to apply for bail.

This bill’s detention provision is an ominous reminder of the General Laws Amendment Act which the previous government passed in 1966, in response to guerrilla activities on the northern borders of the then South West Africa, to provide for up to 14 days’ detention of suspected ‘terrorists’ for interrogation purposes. The 14-day period was eventually increased to 90 days, then 180 days and finally to an indefinite period. According to the final report of the Truth and Reconciliation Commission there was a link between incidents of torture and detention without trial provisions.120 It is this that has prompted Amnesty International to warn that: "the depth and persistence of abuses in the past strongly suggest that the reintroduction of the power to detain without charge carries the grave risk of a repetition of the past pattern of human rights violations. The likelihood of repetition is increased by the reality that torture still occurs in South Africa, primarily in the context of criminal investigation."121 This is borne out by the Independent Complaints Directorate’s (ICD) annual report for 1999/2000. The ICD is a statutory body whose principal function is to investigate police misconduct and criminal offences allegedly committed by members of the police service. According to the report, the ICD received 4 380 complaints against the police between April 1999 and March 2000 (up from 2 874 in 1998/99 and 1999 in 1997/98). Of these, 209 complaints related to the death of crime suspects in police custody. According to the ICD, the causes of death in these cases were: natural causes (31 deaths), suicides (63), injuries in custody (20), injuries prior to custody (28), and possible police negligence (67). A further 764 complaints were in respect of "serious criminal offences" allegedly committed by members of the police, including 500 cases of serious assault or attempted murder and 143 cases of common assault.122

Professor Michael Cowling of the University of Natal argues that the enactment of detention without trial provisions could amount to a violation of South Africa’s obligation under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to which South Africa is a party. The convention obliges each state party to keep under systematic review interrogation rules, instructions, methods and practices, as well as arrangements for the custody and treatment of persons subject to any form of arrest or detention in order to prevent any cases of torture. "This means that the government is under a duty not only to actively prevent torture by punishing those who perform acts of torture but also to prevent it indirectly by eliminating conditions in which torture is likely to take place."123

Advocate George Bizos, a well-known jurist who represented numerous families of detainees who died in custody in the pre-1994 era, has spoken out strongly against the detention provision in the bill. Bizos argues that detention without trial, particularly for the purposes of interrogation, takes place on the premise that the suspect is guilty of a serious offence or has information that the suspect refuses to disclose about others whom the interrogator suspects of being guilty. In such a situation, the innocent or ignorant may be at greater risk than the offender and the co-conspirators because the former is unable to confess or furnish information to the satisfaction of the interrogator. Bizos further holds that detention without trial is invariably abused:

"Even where safeguards are provided, assurances that the power is needed for a limited period and that it will be used with circumspection are hardly ever honoured. We are given assurances, but history teaches us how often the temporary becomes permanent. The abrogation of one fundamental right always endangers the others. Chipping away at one pillar of democracy may imperil the whole edifice."124

In its discussion paper, the Law Commission’s project committee on security legislation concedes that the 14-day detention period is a ‘thumb-suck’. This is not surprising, as each terrorist investigation is likely to be different, and some detainees will need to be interrogated for longer periods than others before they reply "to all questions". The lack of a proper basis for coming up with a 14-day detention period could easily become the Achilles’ Heel of some of the important liberal principles on which the ‘new’ South Africa is based. Once policy makers and the courts accept the principle of detaining someone for 14 days as a legitimate investigative tool, they will be hard pressed to resist police requests for extensions of this period for the investigation of particularly serious cases. Which ANC politician would resist increasing the detention period — or even amending the constitution as safety and security minister Steve Tshwete has on more than one occasion threatened to do — should there be a resurgence of right-wing terror activities targeted at black people or ANC office bearers?

According to Paul Wilkinson, a British academic who has written on the problems liberal states face when dealing with terrorism, the primary objective of a counter-terrorist strategy must be the protection and maintenance of liberal democracy and the rule of law. "To believe that it is worth snuffing out individual rights and sacrificing liberal values for the sake of order is to fall into the error of the terrorists themselves, the folly of believing that the end justifies the means," Wilkinson argues.125

In its discussion document, the Law Commission’s project committee on security legislation emphasises that the detention proposal emanates from the police service (which suggested a 30-day detention period) and that the project committee was not told why such a drastic measure was required, and why conventional policing methods were inadequate to combat terrorism:

"Since countries such as the United States, Canada or Australia do not have such measures, conventional policing methods seem to be regarded as adequate in these countries, even in the USA which also faces serious terrorist incidents from time to time. Arguments are raised about a lack of resources in South Africa, but it is important to make it absolutely clear that nothing which the commission says should be conveying its acceptance as presently advised that there is evidence to justify these [detention] measures. Before these measures can be considered by the commission, and subsequently in all probability by parliament, compelling evidence of justification needs to be presented."126

Aware of the country’s history of abuse of detention laws, the drafters of the anti-terrorism bill included various safeguards for detained persons in the bill. Thus, detainees have the right to choose a legal representative who is entitled to be present during the interrogation process, and to be visited by their medical practitioners. Any detained person must be brought before a judge within 48 hours of being detained and again after a further five days. At every court appearance of the detainee, the judge must enquire as to the conditions of the detainee’s detention and welfare, whether the detainee has satisfactorily replied to all questions under interrogation or not, and whether further detention will serve any lawful purpose. In such inquiries, the onus is on the director of public prosecutions to provide reasons for the further incarceration of the detainee, failing which the judge must order the release of the detainee. The need for detention or continued detention must be motivated in relation to one or other of the following purposes:

to compare fingerprints, do forensic tests and verify answers provided by the detainee;



to explore new avenues of interrogation or to determine accomplices;



to correlate information provided by the person in custody with relevant information provided by other persons in custody;



to find and consult other witnesses identified through interrogation;



to hold an identification parade;



to communicate with other police services and agencies; or



for any other purpose relating to the investigation of the case approved by the judge.

While the bill contains a number of safeguards for detained persons, the project committee on security legislation concedes that the envisaged detention measures are "incredibly drastic" but argues that the number of terrorist incidents in South Africa "seem to justify the adoption of carefully drafted measures which limit but do not absolutely abrogate section 35 of the constitution [rights of detained persons] and which contain the necessary safeguards".127 The project committee might be overly optimistic in its appraisal of a possible constitutional challenge to the bill’s detention provisions. The constitution’s limitations clause can be used to justify a derogation of rights. However, the pronouncements of the various justices in the constitutional court case of De Lange v Smuts NO is that detention without trial provisions are very likely to be considered unconstitutional as the limitations clause cannot be used to justify violating the express and unequivocal constitutional right not to be detained without trial.128

It is also unlikely that the constitutional court would countenance safeguards for detained persons or conditions of detention that fall below those contained in the constitution’s state of emergency provisions.129 These provisions set minimum standards that apply to detained persons following the declaration of a state of emergency. A state of emergency can be declared only in extreme circumstances such as when the life of the nation is threatened by war or general insurrection. Even during a state of emergency, detainees have such rights as access to a legal representative and medical practitioner, a judicial review of their detention every 10 days, obtaining written reasons for their continued detention, and the right to appear in person before any court considering their detention.

Bail

It is further proposed that persons standing trial on any charge under the bill can be released on bail only if they, having been given a reasonable opportunity to do so, adduce evidence which satisfies the court that "exceptional circumstances exist which in the interests of justice permit their release".130 The onus on an accused, to satisfy a court that exceptional circumstances exist, seems harsh given the broad range of offences that the bill seeks to create. Thus, a person charged with trespassing on the property of a foreign diplomat (that is, an internationally protected person) could be in the same position as a person charged with terrorism when it comes to the issue of bail.

Professor Anthony Mathews in his book ‘Freedom, state security and the rule of law’, argues that the denial of bail to an accused in a terrorism trial with strong political overtones, could detrimentally affect the right to a fair trial of such an accused.

" ... in political trials, especially complex ones, the right to bail is directly related to the right to a fair hearing. Political trials, especially major ones, tend to be a contest for legitimacy and to involve the discrediting of opponents. As a result the prosecution, on behalf of the state (more realistically, the government of the day), tends to marshal all possible resources to establish the guilt of the accused. Frequently, political trials are factually and legally complex and involve multiple charges relating to long periods of complicated human political activity... Now it is clear that where the accused remain locked up from the time that charges are brought to the conclusion of the trial, the ability of the defence to marshal its own resources is gravely impaired. The accused will have a restricted ability to consult regularly with legal advisers on the highly complex indictment against them and to find witnesses and organise counter-evidence and, as a result, the contest between the state and the prosecuting authority and the individuals in the dock will be more unequal than ever."131

Provide information

The bill proposes to place a duty on anyone who knowingly possesses any information, which may be essential to investigate any terrorist act, to provide such information to a law enforcement officer or public prosecutor. Intentionally withholding such information constitutes an offence leading on conviction to imprisonment for up to five years without the option of a fine. According to Amnesty International, the implementation of this provision could result in abusive prosecutions, given the broad definition of what constitutes a terrorist act. Moreover, the provision may be in breach of the right not to incriminate oneself, which is enshrined in international standards and the South African constitution.132

Special powers

A police officer of at least the rank of director may authorise that special powers are given to all uniformed police officers within his or her area of authority, provided there are reasonable grounds to do so to prevent a terrorist act. Uniformed officers may then stop and search any vehicle or person for articles that could be used for the commission, preparation or instigation of any terrorist act. Moreover, a police officer may exercise such powers whether or not there are any grounds for suspecting the presence of such articles.

Courts’ jurisdiction

It is proposed that South African courts have wide jurisdiction in respect of offences created by the bill. For example, South African courts will have jurisdiction if:

the perpetrator of the criminal act is arrested in South Africa, in its territorial waters or on board a ship flying the flag of South Africa, or an aircraft registered in South Africa;



the criminal act has been committed in the territory of South Africa and the perpetrator of the criminal act is arrested in South Africa;



the criminal act is committed outside of South Africa but the act is punishable in terms of South Africa’s domestic law or South Africa’s obligation under international law;



the criminal act is committed against a South African government facility abroad;



the criminal act is committed by a stateless person or refugee who has habitual residence in South Africa; or



the criminal act is committed against the security of South Africa.

Operational environment

Numerous pieces of legislation designed to combat terrorism, uphold internal security, and strengthen the hands of the security forces against terror groups, are on the South African statute books. Many of the available laws are not being used fully by the security forces because of a variety of operational weaknesses in the criminal justice system and the state’s intelligence agencies. Policy makers should direct their efforts at these weaknesses, before advocating Draconian measures that seek to dilute some of the rights and civil liberties entrenched in the country’s constitution. Even the best legislation is ineffective if it is not properly implemented and used by the personnel (primarily the police and the prosecution service) of the criminal justice system. Terrorism can be effectively combated. What is needed is a well-run and adequately resourced criminal justice system staffed by trained and motivated personnel. Amending the constitution and restricting accused persons’ rights is not the answer. As the editorial of a national Sunday paper commented: "The constitution is in no need of repair. Our policing strategies are."133

A number of factors influence the state’s operational effectiveness in combating terrorism. Among these factors are intelligence capacity, detection and prosecution skills, resource constraints, public and international co-operation and the creation of unrealistic expectations. In so far as they exist, mention is made of initiatives that have been undertaken to address these operational weaknesses. Suggestions are also made on how some of these weaknesses could be addressed to enhance the state’s anti-terrorist operational capacity.

Intelligence capacity

The perpetrators of (especially urban) terrorism frequently belong to small close-knit cells whose members are sworn to secrecy. To uncover such a group and collect sufficient evidence on its activities, so as to launch a successful prosecution, the state’s security services must have the ability to collect accurate evidence and intelligence. Often this requires of the state to deploy undercover agents to infiltrate such groups. As Wilkinson points out:

"A crucial requirement for defeating any political terrorist campaign must be the development of high quality intelligence, for unless the security forces are fortunate enough to capture a terrorist red-handed at the scene of the crime, it is only by sifting through comprehensive and accurate intelligence data that the police have any hope of locating the terrorists. It is all very well engaging in fine rhetoric about maximising punishment and minimising rewards for terrorists. In order to make such a hard line effective the government and security chiefs need to know a great deal about the groups and individuals that are seeking rewards by terrorism, about their aims, political motivations and alignments, leadership, individual members, logistics and financial resources and organisational structures."134

It is questionable whether South Africa’s intelligence agencies have the resources and personnel necessary to successfully infiltrate suspected terrorist groups in the country.135 Moreover, it appears that there is considerable inter-agency rivalry and even mistrust between the various intelligence agencies dealing with internal security matters, thus further weakening the state’s intelligence capabilities vis-à-vis suspected terrorist groups.136

Detection and prosecution skills

The success of a prosecution is largely determined by the way a crime is investigated by the police. A poorly investigated case, where no statements are taken from corroborating witnesses, where incomplete or inaccurate statements are taken, or where evidence is obtained in an illegal manner, is likely to result in the acquittal of a guilty accused. Even a good prosecutor — let alone an inexperienced one — will find it difficult to salvage a case where crucial aspects of its investigation are flawed.

Since 1994, prosecutors have become increasingly reliant on properly investigated cases. The bill of rights guarantees every accused the right to a fair trial with the result that laws that used to place an onus on the accused to disprove certain allegations against them have largely been declared unconstitutional. The courts have also become more reluctant to accept evidence that is obtained under suspicious or unlawful circumstances. Moreover, it is especially in trials where the accused can afford good defence teams — such as cases involving organised crime or well-funded terrorist groups — that the legal defence focuses its efforts on technical flaws in the investigation. According to Bulelani Ngcuka, the national director of public prosecutions, such defence teams "focus on a technical flaw in the prosecution. You have to make sure the investigations are done in such a way as to avoid technical or jurisdictional challenges."137

The investigation of crimes by the SAPS is largely inadequate. The average workload of a detective is the investigation of 140 separate cases simultaneously, making any proper and thorough investigation impossible.138 On average, of every 10 crimes that are reported to the police, only two are investigated sufficiently for the prosecution to take on the case.139

Many prosecutors argue that the general quality of the police’s detective work declined in the post-1994 period.140 This was partly to be expected. Before 1994, the South African Police (SAP) used authoritarian policing methods and tough law enforcement strategies to combat crime. Frequently using a ‘confession driven’ approach to solving crime, many SAP detectives were more concerned about getting crime suspects convicted than about upholding the law and conducting investigations in a legally correct manner.141 Moreover, by the late 1980s and early 1990s, much of the operational focus of the SAP had shifted from combating crime to repressing political opponents of the government.

After 1994, the newly formed SAPS was burdened by coping with the amalgamation of the old SAP and a number of homeland police forces, and with having to adapt to a new constitutional order based on the rule of law. A liberal bill of rights granting constitutionally entrenched protection to those accused of having committed a crime requires that the police investigate all crimes in a procedurally and legally correct manner. Moreover, because of poor pay, transformational problems, a dangerous working environment, and tempting employment opportunities in the burgeoning private security industry, many experienced detectives left the SAPS.142 The departure of experienced personnel, and the consequent decline in the experience level of the average detective, has detrimentally affected the operational effectiveness of the courts and the prosecution service. As one senior official at the Johannesburg magistrates’ court comments:

"Inexperienced investigators don’t always know what they should investigate and they’re not getting the guidance that they should. That means court cases take longer and there are many postponements instead of one. And when it takes longer and longer to go to trial, witnesses disappear and the investigating officer sometimes changes."143

No reliable statistics are available on the proportion of urban terror incidents that have led to the successful prosecution of the perpetrators. From the available evidence, it would seem that the successful prosecution rate is low, with the vast majority of urban terrorists getting away with the crimes they commit.144 This is confirmed by more accurate prosecution data in respect of serious crimes generally.145

Since 1996, the Crime Information Analysis Centre (CIAC) of the SAPS has published detailed statistics covering the various stages through which a criminal case passes in its journey through the criminal justice system. The statistics provide a bird’s eye view of this process from the time a criminal case is recorded by the police, to when it is finalised with the conviction or acquittal of the person accused of committing the crime (Figure 9).

In 2000, some 2 575 617 crimes were recorded by the police.146 Of these, 609 928 were sent to court, where 271 057 cases were prosecuted resulting in 211 762 convictions.147 In other words, of all the crimes that were recorded by the police in 2000 only 11% resulted in a prosecution and 8% in the conviction of the perpetrators.148 While the number of cases resulting in a conviction as a proportion of the number of all recorded cases is low, it is even lower for certain crime types. In 2000, it was 4.7% for residential housebreaking, 2.8% for serious robbery and 2.3% for vehicle hijacking. On average, therefore, only one out of 21 recorded residential burglaries ended in the conviction of the perpetrators, in 2000. For vehicle hijacking the comparable ratio is one out of 44. These dismal statistics are likely to be worse for crimes related to urban terrorism where the perpetrators operate in small and difficult to uncover cells and where witnesses are fearful to come forward to testify.

Over the last few years a number of initiatives have been undertaken to improve the operational capacity of the detective and prosecution services to, inter alia, combat terrorism more effectively in South Africa.

Out of a total of some 20 000 detectives in the SAPS, only 13 000 (65%) had undergone specialist detective training by October 1997.149 A newly established detective academy presented its first course in October 1997. By mid-2000, the academy had trained a few thousand detectives, including specialist detectives engaged in investigating cases of organised crime, as well as forensic specialists who investigate terrorist crime scenes (such as bomb blasts and drive-by shootings).

In the past, newly graduated law students were appointed to the prosecution service and expected to prosecute without any practical training. As a result, most prosecutors learnt by trial and error and made many mistakes. To address the gaps that exist in the training of prosecutors, the court management unit of the national prosecuting authority, in conjunction with Justice College, has devised new training courses that emphasise the teaching of courtroom skills instead of theoretical legal principles. Justice College presents different courses to accommodate prosecutors with varying levels of skill and experience.150 These include specialist-training courses that are held irregularly for experienced specialist prosecutors. Such courses are generally conducted by senior staff from the specialist units and investigating directorates in the office of the national director of public prosecutions. Advanced prosecutor training courses are also offered for prosecutors with more than two years experience. These courses are an advanced version of the professional development-training course, and focus on specific aspects of the law and criminal procedure such as, for example, offences relating to terrorism and conducting a terrorism trial.

In late 1998, the Investigating Directorate for Organised Crime and Public Safety was established in terms of the National Prosecuting Authority Act. The unit’s head leads a multi-disciplinary team of senior state advocates, prosecutors, attorneys from the private sector, police investigators, chartered accountants, and members of the National Intelligence Agency (NIA) and the South African Revenue Service (SARS). According to the then minister of justice, Dullah Omar: "The directorate will bring together with one line of command, all the different agencies engaged in the fight against crime. This will go a long way towards ensuring maximum co-operation, and will eliminate competition and in-fighting [among law enforcement agencies]."151

The Directorate of Special Operations (DSO) — nicknamed ‘the Scorpions’ — was launched in September 1999. The DSO’s purpose is to combat organised crime, corruption within the criminal justice system, serious economic crimes, and crimes against the state such as terrorism.152 In October 2000, the National Assembly approved a bill to establish the DSO as an investigating directorate of the national prosecuting authority.153 Speaking at the national assembly vote on the bill, justice minister Maduna proclaimed: "The DSO needs to become the plague of organised criminals and terrorists, and inject its venom into the criminal law to paralyse organised crime and terrorism." The DSO will be "loved by the people, feared by the criminals, and respected by its peers," the minister said.154

The Directorate of Special Operations is an attempt to institutionalise a pro-active, multi-disciplinary approach to fighting crime.155 The rationale behind the DSO is the integration of three traditionally separate functions: intelligence, investigations and prosecutions, whereby special investigators, intelligence operatives and specialist prosecutors work together in project teams. Investigators work in a prosecution-driven and intelligence-led environment. Experienced prosecutors direct investigations to ensure that the DSO’s investigations are court directed. Prosecutors working for the DSO prepare and adduce evidence in the prosecution of offences and crimes that the DSO investigates. They advise and direct police investigators in their work so that sufficient evidence is collected for the prosecution service to convict those who commit acts of terror in South Africa.156

The head of the DSO is a deputy national director of public prosecutions, who exercises powers, duties and functions subject to the control and direction of the national director. The head of the DSO is assisted by investigating directors and deputy directors, as well as prosecutors, special investigators, persons in the service of any public or other body who are seconded to the DSO, and any other person whose services are obtained by the DSO.157 Investigating directors, and any prosecutors designated by a director, have the same extensive investigative powers as an investigating director of an investigating directorate, including the right to hold inquiries, question people under oath, and search and seizure rights.

Initial indications are that the DSO’s approach has been more successful than traditional policing and detective methods have been. In 2000, the directorate handled 979 new cases, of which 270 went to court leading to 190 convictions and only 10 acquittals. During the first two months of 2001, the DSO handled 97 cases, resulting in all 30 suspects being convicted.158

The DSO’s approach of combining intelligence, investigation and prosecution functions in one structure was partially adopted by Operation Good Hope, which was implemented in January 1999 to "prevent, combat and successfully investigate acts of terrorism and related crimes".159 Operation Good Hope’s personnel consist of members of the SAPS (namely, members of the public order units and the special task force, an investigation team, an intelligence team, a communications team, and visible uniformed police), and the SANDF (including uniformed soldiers, members of the special forces, and Military Intelligence).

The operation thus rested on three pillars: intelligence, investigations and operations.160 Emphasis was placed on collecting information that would assist the prosecution service to secure convictions against those involved in terrorist activities. By mid-1999, Operation Good Hope had stabilised the internal security situation in the Western Cape. The number of incidents of urban terror involving criminal gangs and Pagad (People Against Gangsterism and Drugs) had decreased from 296 for the period January to May 1998, to 94 for the corresponding period in 1999. Operation Good Hope was, however, less successful in prosecuting those suspected of committing acts of terrorism. Moreover, a number of high profile bombings in Cape Town at the end of 1999 revealed Operation Good Hope’s weakness: it was unable to identify and effectively destroy the groups or cells responsible for these acts of terror.

Resource constraints

State spending on the criminal justice system has increased in real terms over the last decade.161 Yet, a lack of resources has contributed to low performance levels of the criminal justice system. For example, partly for historical reasons, but also because of a lack of money for training purposes it was estimated that at the end of 1999, close to a quarter of SAPS members were ‘functionally illiterate’.162 At the beginning of 2000 almost 35 000 police officers had a standard eight qualification or lower.163 The low educational levels of many police officers make it difficult, and even impossible, for them to take down complaints, fill out dockets, give articulate testimony in court, or fulfil any but the most basic policing duties.

Salaries of prosecutors were described as a "national disgrace" by the 1997 interim Hoexter Commission report.164 In early-2001, a beginner prosecutor with a minimum qualification of a three-year legal degree or diploma, earned a gross salary of R58 849 per annum — excluding pension and medical aid benefits and an optional housing allowance. As a result, most law graduates with good grades do not even consider the prosecution service, while many of the better prosecutors resign as their skills are better rewarded in the private sector.165 Junior state advocates who prosecute serious crimes in the high court are employed at a starting salary of R96 046 a year and can hope to progress to an annual salary of R190 279. Upon promotion to the rank of senior state advocate, salary levels increase to between R201 933 and R229 545 a year, depending on seniority and experience. Senior state advocates prosecute the most serious and intricate crimes, including those relating to terrorism. By general public service standards, senior state advocates earn a good salary. However, compared to their private sector peers, their salaries are low. A good senior counsel defending a leader of a crime syndicate or well financed terrorist group can realistically expect to earn upwards of R10 000 a day.

Badly paid and under-resourced, many experienced prosecutors have left the prosecution service.166 Between January 1994 and December 1997, some 630 prosecutors resigned. Between them they had the equivalent of more than 2 000 years of work experience as prosecutors.167 While prosecutors who left the prosecution service were replaced, and the absolute number of prosecutors employed has consistently increased, the high personnel turnover has meant a decline in the experience level of the average prosecutor.

A rapid turnover of staff impairs the professional capacity of the prosecution service. Prosecuting is a practically orientated profession. It requires the ability to apply legal theory to the actual cases before court, to sum up the demeanour and expression of witnesses quickly and correctly, and to present various forms of evidence and witnesses to the court in such a manner as to build up a convincing and coherent case. Many of these skills cannot easily be taught and are acquired and perfected through practice and experience. A rapid staff turnover, therefore, undermines the professional capacity of the prosecution service. Moreover, many experienced prosecutors who leave the prosecution service, join the private sector to specialise in criminal law defending clients against their erstwhile colleagues, some of who remained behind because of their inability to obtain employment in the private sector.

The resource constraints of the criminal justice system were partially addressed in the 2001/02 budget, in terms of which, spending on the three core departments of the criminal justice system (safety and security, justice and correctional services) increased by 10.6% compared to the preceding budget year. With inflation at around 8%, this was an increase in real terms. Of the total budget allocation of R26.9 billion to the three criminal justice departments in the 2001/02 budget year, the greatest portion — R17.1 billion — was allocated to the department of safety and security. R6.2 billion went to correctional services and R3.7 billion to justice.

Compared to the preceding budget year, the greatest increase in expenditure (23%) went to the department of justice. The increase in expenditure on the department of justice was the greatest increase on that department since the 1997/98 budget year. Part of the growth in spending on the department of justice can be attributed to a significant increase in expenditure on the DSO, from R149 million in 2000/01 to R210 million in 2001/02, an increase of 41%. Expenditure on the National Prosecuting Authority (NPA) as a whole increased from R319 million in 2000/01 to R415 million in 2001/02, an increase of 30%. According to the department of finance’s medium-term expenditure estimate, expenditure on the NPA is to increase by 32% between 2001/02 and 2003/04.168

During the budget process, money above that projected in the previous budget may be allocated. In terms of the revised medium-term expenditure estimates, an additional R4.1 billion will be made available to the three criminal justice departments between 2001/02 and 2003/04. The bulk of this money will go to safety and security (R2.3 billion), followed by justice (R1.2 billion) and correctional services with R641 million.

The budget is the government’s primary policy tool. As such an additional expenditure of R4.1 billion over this three year period should, if wisely spent, substantially improve the effectiveness of the criminal justice system.

International co-operation

To effectively combat terrorism that has an international dimension, a high level of co-operation is required by the law enforcement agencies dealing with terrorism in their respective countries. After South Africa’s pre-1994 isolation, a number of initiatives have been undertaken by the South African government to forge closer ties between South African law enforcement agencies, those in the region and in other parts of the world.

The Southern African Regional Police Chiefs Co-operation Organisation (SARPCCO) was established in 1995 to enhance co-operation between the policing agencies of its 12 members, which includes South Africa.169 The objective of SARPCCO is to promote, strengthen and perpetuate co-operation, and to foster joint strategies for the management of all forms of cross-border and related crimes with regional implications.170

In 1996, South Africa and the United States signed an anti-crime agreement. Part of the agreement provides for the development by South Africa of a police-training programme to enhance the SAPS’s professional capabilities in fighting crime. This includes specialised courses offered by US law enforcement training programmes such as the International Criminal Investigative Training Assistance Program (ICITAP).171

At the 1997 African Regional Interpol Conference, a resolution was passed to establish an African organised crime database to which all African Interpol member states have access. (All SARPCCO member states are members of Interpol.) The SAPS was the first policing agency to utilise the database.172 Bilateral co-operation agreements also exist between the SAPS and the policing agencies of Argentina, Brazil, France, and the Russian Federation.

In September 2000, after a car bomb explosion in a well-known entertainment area in one of Cape Town’s suburbs, the minister for safety and security announced that European intelligence agencies as well as the Federal Bureau of Investigations (FBI) would join a contingent of SAPS detectives to help investigate and stop the wave of terrorist bombings that was plaguing the city at the time.173

Public co-operation

To ensure their long-term success, terrorists need the support of parts of the community in which they live. Terrorists — except the exceptional loner who works alone — are members of bigger groups and gangs that provide them with logistical support and finances to further their cause. Moreover, terrorists have families, friends, and lovers, and live in a bigger community in which they plan their deeds, build their bombs and talk about their ideas and actions. The fact that many of the urban terrorists in South Africa live and hide among people who do not co-operate with the security forces is one of the state’s biggest challenges.

Witnesses of, for example, terrorists assembling bombs or placing them in public places hesitate to come forward to report what they saw out of fear that their testimony could place them at risk of reprisals from the terrorists or their supporters.174 This is understandable given that the public generally questions the ability of the police to protect them from crime. For example, survey results released in 1996 show that of the people questioned throughout South Africa, only 34% "trust the police always or most times", while a minority of respondents (43%) thought that the "police are interested in what happens to you".175 A national survey conducted at the end of 1998 found that 67% of the respondents either had "some" or "not much" confidence in the SAPS. Only 33% had "a lot" of confidence in the police.176

The statutory protection of witnesses is a new concept in South Africa. It was introduced in 1991 through an amendment to the Criminal Procedure Act.177 The main shortcoming of the system has been the lack of a proper centralised structure to co-ordinate and lay down a uniform policy on witness protection. The Witness Protection Act of 1998 addressed this problem by establishing an office for witness protection headed by a national director.178 The kind of offences for which protection may be granted has been increased and includes treason, sedition, murder, public violence, kidnapping, any contravention of the Intimidation Act, any offence relating to the dealing in firearms and explosives, or the possession of an automatic firearm and explosives. The director also has the discretion to grant protection to a witness in respect of any offence if the director is of the opinion that the safety of the witness warrants it. The act also enlarges the scope of the witness protection programme beyond merely criminal trials, as has been the case so far. The act provides for the protection of witnesses of commissions of inquiry and inquest proceedings, proceedings before a special tribunal,179 as well as investigations of the Independent Complaints Directorate, which investigates cases of police misconduct and complaints levelled against the police.

Witnesses who have reason to believe their safety or the safety of any person close to them is, or may be, threatened by reason or their being a witness, may apply for themselves or for any person close to them to be placed under protection. Such an application may also be made on behalf of the witness by an interested person or the investigating officer of the case in which the witness testifies. A protection agreement between a witness and the office for witness protection can include an obligation on the witness to give the evidence as required in the proceedings to which the protection relates. In determining whether a person should be placed under witness protection, account must be taken of such factors as:

the nature and extent of the risk to the safety of the witness;



any danger that the interests of the community might be affected if the witness is not placed under protection;



the nature of the proceedings in which the witness has given evidence or may be required to give evidence; and



the importance, relevance and nature of the evidence given or to be given by the witness in the proceedings concerned.

It is an offence in terms of the act to wilfully or negligently allow any unauthorised person to gain access to any protected person, or to disclose the identity or whereabouts of any protected person. Upon conviction for such an offence a court may impose a fine or imprisonment for up to 30 years.

South Africa’s witness protection programme has not been without its problems. The 1998 Witness Protection Act was only implemented in March 2000 because of financial and staffing constraints. The 1991 act was repealed with the promulgation of the new act. At the beginning of 2001 some 730 people were under witness protection as a result of 360 criminal cases. The witnesses were protected by 70 police officers, who have been permanently assigned to the programme. The programme removes witnesses from their communities and settles them elsewhere. There are no bodyguards and no full-time protection. Witnesses often complain that they receive insufficient money from the programme to sustain the lifestyles they had before joining the programme. Because of an over-burdened criminal justice system, it is not unusual for persons to be on the witnesses protection programme for two to three years before the criminal trial in which they have to testify is finalised.180 The image of the witness protection programme was undermined when two witnesses to a foiled pipe bomb attack were murdered in their safe house at the end of 2000. Earlier in that year, two Western Cape officers of the programme were investigated for improper conduct following complaints of harassment from people on the programme. One witness protection officer resigned and the other was found guilty in an internal inquiry. In 1999, the then head of the Western Cape protection unit was charged with fraud involving almost R1 million. He was suspended with full pay and the trial was under way at the time of writing.181

Given that a prerequisite for the successful prosecution of terrorist and organised criminal groups depends on providing security for, and the co-operation of, witnesses it is crucial that the witness protection programme is enlarged and improved. A report on the witness protection programme by the Centre for the Study of Violence and Reconciliation, entitled ‘Testifying without fear’, emphasises that while there are priority areas of the programme that need attention, there are no ‘quick-fix’ remedies for improving the programme overall. According to the report, a key area for improvement is the recruitment and training of security and support staff on the witness protection programme. "Some 70 police members seconded from different provinces are responsible for providing security. Provincial commissioners, who may be reluctant to let their best members serve on the programme, ultimately decide the numbers and competence of programme staff in each province. As a result there are huge staffing discrepancies between the provinces. In the Northern Province staff numbers are more than adequate with one security officer to four witnesses, while in KwaZulu-Natal the programme is drastically understaffed with one officer to 26 witnesses."182

In early 2001, the witness protection programme was placed under the direct control of the national prosecuting authority. The national director of public prosecutions has welcomed this, as his staff — who will run the programme — will be the "most passionate about making sure that witnesses were available to give evidence for the state".183 The national prosecuting authority’s budget allocation for the witness protection programme is to increase from R25 million in 2001/02 to R27.6 million in 2003/04 — a modest increase in expenditure of 10% over three years.184 Time will tell whether the under-staffed prosecution service is able to manage the witness protection programme in a better way and, crucially, whether the service will improve public perceptions about the programme.

Encouragingly, the national prosecuting authority is taking steps to improve the witness protection programme. They are:185

reviewing all the criminal cases with witnesses in the programme to determine which witnesses need to be in the programme and the status of the cases they are involved in;



fast-tracking all the cases involving witnesses that are in the programme;



conducting a risk assessment for all witnesses in the programme;



meeting with other agencies such as the NIA, SAPS and the department of welfare to explore ways of improving the services the programme provides to witnesses;



investigating better ways of rehabilitating witnesses so that they are able to continue with their lives after the threat to them and their families is gone; and



reviewing the Witness Protection Act and the structure of the programme.

Another problem faced by state witnesses in past terrorism trials was intimidation in the courtroom where the trial in which they had to testify was taking place. It can be an intimidating experience for witnesses to come face-to-face with the perpetrators of the brutal crimes they witnessed. This can be exacerbated by the often rigorous and intimidating cross-examination that state witnesses face at the hands of experienced and senior defence counsel. Timid state witnesses can easily break down under rigorous cross-examination or cease to give evidence altogether if, in addition to such a seemingly hostile environment, they are intimidated by members of the public sitting in the court’s gallery. A number of counter-measures could be undertaken to combat such forms of intimidation. First, the police should have the right to record the identity of everyone who attends a terrorism-related trial. Second, closed-circuit television cameras facing the public gallery in courtrooms where terrorism trials take place should be installed to record any acts of intimidation by members of the public. Third, judges should not hesitate to interrupt and stop the cross-examination by defence counsel that seeks to identify state witnesses if it cannot be shown that the questioning is on the merits of the case.186

Another factor which impedes good co-operation between the public and the security forces has been the state’s inability to prevent certain elements (albeit a small minority) within the police service and defence force from breaking the law in their overzealous attempts at apprehending suspects and searching their homes. This is especially counter-productive where suspected terrorists are also members of an ethnic, religious or some other minority group, and the perception is fostered that the security forces, and by implication the government, are victimising all members of the minority group to get at the terrorists. Allegations by the Muslim (and largely Coloured) community in the Western Cape, that they are the victims of heavy-handed security force actions, need to be taken seriously. The government’s outspoken belief that the Muslim dominated organisation Pagad and the Muslim militant fundamentalist group Qibla are behind the urban terrorism is easily interpreted by many Muslims as a veiled attack on their faith and community — especially where members of the security forces misuse their power and harass and intimidate members of that community. The result is a community that increasingly sees the state and its security organs as the enemy. Such a community not only stops co-operating with the police but also could begin to sympathise with any terrorists amongst them who can exploit the community’s indignation at the security forces to their own advantage.

Especially in a multi-cultural society such as in South Africa, it is crucial that the government and its security forces at all times act within the law. "The terrorists can make enormous propaganda capital out of violations of the law by members of the security forces and use these as additional justifications for their own campaigns. Thus they conveniently divert the public’s gaze away from the violations of the law and outrages stemming from their own petty tyranny, and attempt to portray the incumbent authorities as monstrous blood-soaked oppressors."187

Creating unrealistic expectations

Unrealistic and unfulfilled promises by high ranking police officers and politicians — including the minister for safety and security — regarding the police’s ability to track down and arrest terrorism suspects have dealt the security forces some detrimental psychological blows. For example, at the beginning of December 1999, three days after a bomb blast in a Camps Bay pizza restaurant, the minister of justice and constitutional development, Penuell Maduna, promised that "the year will not come to an end before we have found [the Camps Bay bombers] and put them in jail".188 Safety and security minister, Steve Tshwete, was even bolder and assured the public that the terrorists would be behind bars by Christmas.189 This did not happen, and on Christmas Eve a further bomb injured seven police officers. The statements had the effect of lowering public morale and enhancing the status of the terrorists who could rightly claim that the state’s senior representatives were powerless in their efforts to arrest the bombers.

Politicians and governmental spokespersons should guard against making promises that are not likely to be achieved. This does not mean that the government should concede defeat to the terrorists and thereby lower the morale of the security forces and the public at large. It does, however, mean that official government statements should not promise the impossible. In a state with a constitutionally entrenched bill of rights based on the rule of law, it is a costly and time consuming process for the criminal justice system to identify, infiltrate, prosecute and convict terrorist groups and their members. This must be admitted not as a defeat but as a virtue and a price worth paying for a free society — especially as authoritarian regimes are not necessarily more successful at combating terrorism.

Conclusion

South Africa’s anti-terrorism policy — unlike the populist pronouncements of some of its policy makers — has taken the approach that terrorism should be combated without sacrificing citizens’ civil liberties and the rule of law. The value of this approach — and the dangers of ignoring it in favour of a Draconian one — is spelt out by Paul Wilkinson:190

"The primary objective of a counter-terrorist strategy must be the protection and maintenance of liberal democracy and the rule of law... To believe that it is worth snuffing out all individual rights and sacrificing liberal values for the sake of ‘order’ is to fall into the error of the terrorists themselves, the folly of believing that the end justifies the means.

It must be a cardinal value of liberal democracies in dealing with problems of civil violence and terrorism, however serious these may be, never to be tempted into using the methods of tyrants and totalitarians... It is a dangerous illusion to believe one can ‘protect’ liberal democracy by suspending liberal rights and forms of government. Contemporary history abounds in examples of ‘emergency’ or ‘military’ rule carrying countries from democracy to dictatorship with irrevocable ease."

Numerous pieces of legislation designed to combat terrorism, uphold internal security, and strengthen the hands of the security forces against terror groups, are on the South African statute books. Many of the laws are not being used fully by the security forces because of operational weaknesses in the criminal justice system and the state’s intelligence agencies. Policy makers need to direct their efforts at these weaknesses, before advocating Draconian measures — as contained in some of the clauses of the draft anti-terrorism bill — which could have the effect of curtailing the rights and liberties entrenched in the country’s constitution.

Tough and sweeping legislation is likely to fail in its aims if it is not properly implemented and used by the personnel of the criminal justice system. Terrorism can be effectively combated. What is needed is a well-run and adequately resourced criminal justice system staffed by trained and motivated personnel.

Recent developments promise to improve the state’s ability to apprehend and convict those guilty of urban terrorism. At the beginning of 2001, legislation was promulgated which formally established the Directorate of Special Operations (DSO). Comprised of multi-disciplinary teams of investigators, prosecutors and intelligence operatives, the DSO’s structure, and prosecution-driven and intelligence-led approach, places the organisation in a strong position to effectively combat those guilty of acts of urban terror. An increase in budgeted expenditure of 41% between 2001/02 and 2002/03 to over R200 million per year should provide the DSO with the necessary resources to fulfil its mandate.

There is a need to streamline the many disparate pieces of legislation designed to combat terrorism and to bring them in line with South Africa’s international obligations. It would, however, be a mistake to introduce legislation that seeks to combat terrorism by diluting the rights of all South Africans. The country’s history is full of examples of tough temporary legislative measures becoming permanent fixtures on the statute books.

Notes