Protection of Constitutional Democracy Against Terrorist and Related Acitivities Act

Link to law: http://www.gov.za/documents/protection-constitutional-democracy-against-terrorist-and-related-acitivities-act
Published: 2005-02-11

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Protection of Constitutional Democracy Against Terrorist and Related Activities Act [No. 33 of 2004]


Government Gazette
REPUBLIC OF SOUTH AFRICA

Vol. 476 Cape Town 11 February 2005 No. 27266
THE PRESIDENCY No. 128 11 February 2005
It is hereby notified that the President has assented to the following Act, which is hereby published for general information:–
No. 33 of 2004: Protection of Constitutional Democracy Against Terrorist and Related Activities Act, 2004.


ACT To provide for measures to prevent and combat terrorist and related activities; to provide for an offence of terrorism and other offences associated or connected with terrorist activities; to provide for Convention offences; to give effect to interna- tional instruments dealing with terrorist and related activities; to provide for a mechanism to comply with United Nations Security Council Resolutions, which are binding on member States, in respect of terrorist and related activities; to provide for measures to prevent and combat the financing of terrorist and related activities; to provide for investigative measures in respect of terrorist and related activities; and to provide for matters connected therewith.
PREAMBLE
WHEREAS the Republic of South Africa is a constitutional democracy where fundamental human rights, such as the right to life and free political activity, are constitutionally enshrined;
AND WHEREAS terrorist and related activities, in whichever form, are intended to achieve political and other aims in a violent or otherwise unconstitutional manner, and thereby undermine democratic rights and values and the Constitution;
AND WHEREAS terrorist and related activities are an international problem, which can only be effectively addressed by means of international co-operation;
AND WHEREAS the Government of the Republic of South Africa has committed itself in international fora such as the United Nations, the African Union and the Non-Aligned Movement, to the prevention and combating of terrorist and related activities;
AND WHEREAS the United Nations Security Council Resolution 1373/2001, which is binding on all Member States of the United Nations, as well as the Colzventiotzfor the Prevenrion clad Cornbating of Terrorism, adopted by the Organisation of African Unity, requires Member States to become Party to instruments, dealing with terrorist and related activities, as soon as possible;
AND WHEREAS the Republic of South Africa has already become Party to the following instruments of the United Nations: ( a ) The Converztion o~z Offences urd Cerrain 0therAct.r Committed on BoardAircraft,
signed at Tokyo on 14 September 1963. The Republic became a Party thereto, by accession on 26 May 1972;
(b) the Corzvention for the Scppression of Unlawfid Seizure ofAircmjt, signed at The Hague on 16 December 1970. The Republic became a Party thereto by ratification on 30 May 1972;
( e ) the Convention for the Sc~ppression of Unluwf{l Acts crgair7.rr the Safety of Civil Aviation, concluded at Montreal on 23 September 197 1 . The Republic became a Party thereto by ratification on 30 May 1972;
4 No. 27260 GOVERNMENT GAZETTE. 1 I FEBRUARY 2005
Act No. 33.2004 PROTECTION OF CONSTITUTIONAL DEMOCRACY AGAINST TERRORIST AND RELATED ACTIVITIES ACT. 200-1
the Con1~~rior7 O I I tl7c P m m r i o n orld P / /n i .~ / /n~mt of Crimes ngoiusr Interrmtiotr- ull?, PI-orrcted Per-sons including Diplo~ncrtic Agenfs. adopted by the General Assembly of the United Nations on 14 December 1973. The Republic became n Party thereto by accession on 13 September 2001; the h/rernntiorml Corn~e17rio1r Agoinst the Totting of Hostoges. adopted by the General Assembly of the United Nations on 17 December 1979. The Republic became a Party thereto by accession on 23 September 2003: the PI-otocol fo/- the Suppression sf Unla~;firl Acts sf Violence at Ailports S e n 7 i q Ir?ter-rzational Cilil A\,icrtiolI. adopted at Montreal on 24 February 1988. The Republic became a Party thereto by accession on 21 September 1998; the Corwenrio~ on rhe Marking qfP/ast ic E.xplosiI>es,for the Purpose of Detection, signed at Montreal on 1 March 1991. The Republic became a Party thereto by accession on 1 December 1999; the Intemational Convention for t17e Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on 15 December 1997. The Republic became a Party thereto by ratification on 1 May 2003; and the Inter-national Convention O I I the Suppression of the Firlancing of Terrorism, adopted by the United Nations General Assembly on 9 December 1999. The Republic became a Party thereto by ratification on 1 May 2003;
AND WHEREAS the Republic of South Africa desires to become a Party to the following remaining instruments of the United Nations, not yet ratified or acceded to by the Republic: (a) The Convention fo. the Suppression of Unlawfzd Acts against the Safety of
Maritime Navigation, adopted at Rome on 10 March 1988; (0) the Protocol f o r the Suppression qf Unlawfid Acts against the Safety of Fixed
Platforms on tlze Continental Shelf, adopted at Rome on 10 March 1988; and ( c ) the Convention on the Physical Protection ofNiuclear Material, adopted at Vienna
on 26 October 1979, and signed on behalf of the Republic on 18 May 1981;
AND WHEREAS the Republic of South Africa has become a Party by ratification, on 7 November 2002, to the Convention on the Preventiorl and CoMzbating of Termrisnz, adopted by the Organisation of African Unity at Algiers on 14 July 1999;
AND WHEREAS the United Nations Security Council from time to time passes resolutions under Chapter VI1 of the United Nations Charter, requiring Member States to combat terrorist and related activities, including taking effective measures to prevent and combat the financing of terrorist and related activities, and the freezing of funds, assets or economic resources of persons who commit terrorist and related activities;
AND WHEREAS our national laws do not meet all the international requirements relating to the prevention and combating of terrorist and related activities;
AND WHEREAS international law, and in particular international humanitarian law, including the purposes and principles of the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the said Charter recognizes acts committed in accordance with such international law during a struggle waged by peoples, including any action during an armed struggle, in the exercise or furtherance of their legitimate right to national liberation, self-determination and independence against colonialism, or occupation or aggression or domination by alien or foreign forces, as being excluded from terrorist activities;
AND REALISING the importance to enact appropriate domestic legislation necessary to implement the provisions of relevant international instruments dealing with terrorist
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Art No. 33.2004 PROTECTION OF CONSTITUTIONAL DEMOCRACY AGAINST TERRORIST AND RELATED ACTIVITIES ACT. 2004
and related activities. to ensure that the jurisdiction of the courts of the Republic of South Africa enables them to bring to trial the perpetrators of terrorist and related activities; and to co-operate with and provide support and assistance to other States and relevant international and regional organisations to that end;
AND MINDFUL that the Republic, has since 1994, become a legitimate member of the community of nations and is committed to bringing to justice persons who commit such terrorist and related activities; and to carrying out its obligations in terms of the international instruments dealing with terrorist and related activities,
B E IT THEREFORE ENACTED by the Parliament of the Republic of South Africa. as follows:- INDEX
CHAPTER 1
DEFINITIONS AND INTERPRETATION
I . Definitions
CHAPTER 2
OFFENCES AND PENALTIES
PART 1
Offence of terrorism and offences associated or connected with terrorist activities
2. 3.
4. 5 . 6.
7 . 8. 9. 10.
11.
12.
13. 14.
5
10
Offence of terrorism Offences associated or connected with terrorist activities
PART 2
Convention offences
Offences associated or connected with financing of specified offences 15 Offences relating to explosive or other lethal devices Offences relating to hijacking, destroying or endangering safety of a fixed platform Offences relating to taking a hostage Offences relating to causing harm to internationally protected persons 20 Offences relating to hijacking an aircraft Offences relating to hijacking a ship or endangering safety of maritime navigation
PART 3
Other offences 25
Offences relating to harbouring or concealment of persons committing specified offences Duty to report presence of person suspected of intending to commit or having committed an offence and failure to so report Offences relating to hoaxes 30 Threat, attempt, conspiracy and inducing another person to commit offence
S No. 27206 GOVERNMENT GAZETTF.. 1 1 FEBRUARY 2005
Act NO. 33.2004 PROTECTlON OF CONSTITUTIONAL DEMOCRACY AGAINST
15. 16. 17.
18. 19. 20. 21.
22. 23. 24.
25.
26.
27. 28.
TERRORIST AND RELAlED ACTIVITIES ACT. 200.4
CHAPTER 3
PROVISIONS RELATING TO OFFENCES AND PENALTIES
PART I
Provisions relating to offences
Jurisdiction in respect of offences 5 Consent of National Director to institute proceedings and reporting obligations Evidential matters and exclusions
PART 2
Penalties and tnatters relating to penalties
Penalties Declarations of forfeiture on conviction Interests of third parties Evidence in respect of declarations of forfeiture and certain interests
CHAPTER 4
INVESTIGATING POWERS AND FREEZING ORDERS
Investigating powers Freezing order Cordoning off, stop and search of vehicle and person
CHAPTER 5
RESOLUTIONS OF UNITED NATIONS SECURITY COUNCIL 20
Notification by President in respect of entities identified by United Nations Security Council Parliamentary supervision
CHAPTER 6
GENERAL PROVISIONS 25
Amendment and repeal of laws, and transitional provisions Short title and commencement
SCHEDULE
CHAPTER 1
DEFINITIONS AND INTERPRETATION 30
10
15
Definitions
1. (1) In this Act, unless the context indicates otherwise - (i) “appropriate government body”, with reference to section 15, means an
appropriate government body as defined in section 1 of the International Co-operation in Criminal Matters Act, 1996 (Act No. 75 of 1996); 35
(a) an offence, created in fulfilment of the Republic’s international obliga- tions in terms of instruments dealing with terrorist and related activities, referred to in Part 2 of Chapter 2;
( [ I ) an oRence referred to in section 56( l ) (h) of the Nuclear Energy Act, 1999 40 (Act No. 46 of 1999); or
(ii) “Convention offence” means-
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Art NO. 33.2004 PROTECTION OF CONSTITUTIONAL DEMOCRACY AGAINST TERRORIST AND RELATED ACTIVITIES ACT. 2004
(c) an offence referred to in section 2( 1) or (2) of the Civil Aviation Offences
“Director of Public Prosecutions” means a Director of Public Prosecutions appointed under section 13(1) of the National Prosecutin$ Authority Act. 1998 (Act No. 32 of 1998): 5 “engages in a terrorist activity”. with reference to sections 2 and 3, includes- ( a ) the commission. performance or carrying out of (0) the facilitation of. participation or assistance in. or contribution to the
( c ) the performance of an act in preparation for or planning of; or (d) instructing, directly or indirectly, the-
(i) commission, performance, carrying out of; (ii) facilitation of, participation or assistance in, or contribution to
(iii) performance of an act in preparation for or planning of,
Act. 1972 (Act No.10 of 1972):
commission, performance or carrying out of; 10
the commission, performance or carrying out of; or 15
a terrorist activity, and the expressions “to engage in a terrorist activity”, “engaging in a terrorist activity’’ and “engagement in a terrorist activity” shall be construed accordingly; “entity”, with reference to sections 3, 4, and 14 (in so far as it relates to the 20 aforementioned sections), 22,23 and 25, means a natural person, or a group of two or more natural persons (whether acting in the furtherance of a common purpose or conspiracy or not), or a syndicate, gang, agency, trust, partnership, fund or other unincorporated association or organisation, or any incorporated association or organisation or other legal person, and includes, where 25 appropriate, a cell, unit, section, sub-group or branch thereof or any combination thereof; “explosive”, with reference to the definition of “explosive or other lethal device” in this section, and sections 5 and 13, means an explosive referred to in section 1 of the Explosives Act, 2003 (Act No. 15 of 2003); 30 “explosive or other lethal device’?, with reference to sections 5 and 13, means-
an explosive or incendiary weapon or device which is designed or manufactured, or has the capability, to cause death, serious bodily injury or material damage; 35 a weapon or device which is designed or manufactured, or has the capability, to cause death, serious bodily injury or material damage through the release, dissemination or impact of toxic chemicals, biological agents or toxins or similar substances or radiation or radioactive material; or 40 any weapon of mass destruction, as defined in section 1 of the Non-Proliferation of Weapons of Mass Destruction Act, 1993 (Act No. 87 of 1993);
“fixed platform”, with reference to sections 6 and 15, means an artificial island, installation, or structure permanently attached to the sea-bed for the 45 purpose of exploration or exploitation of resources or for economic purposes, but does not include a ship; “infrastructure facility”, with reference to the definition of “terrorist activity” in this section and section 5 , means any publicly or privately owned facility providing or distributing services for the benefit of the public, such as 50 water, sewage, energy, fuel or communications; “instruments dealing with terrorist and related activities”, means any of the following instruments: (a ) The Convention on Offences und Certain Other Acts Committed on
(b) the Convention for the Suppression of Unlawful Seizure of Aircraft, Board Aircraft, signed at Tokyo on 14 September 1963; 55
signed at The Hague on 16 December 1970;
I ? No. 27266 GOVERNMENT GAZETTE. I I FEBRUARY 1005
.Art No. 33. 2004
(xi)
(xii)
(xiii)
(xiv) W )
(xvi)
(xvii)
PROTECTION OF CONSTITUTIONAL DEMOCRACY AGAINST TERRORIST AND RELATED AC IlVITIES ACT. 2004
the C o ~ r ~ ~ e ~ ~ t i ~ ~ r f o ~ ~ t l r e Srcppwssiorr of Un1o11:firlActs against the Sa,fit\.qf Civil A~Ytrrion. concluded at Montreal on 23 September 1971 : the Corrventio~~ 011 rhr Prevention and Prcnishrnent of Crimes rrgrrirrst Inte~nrrtionnlly Plntecred Persons inclrtcling Diplomatic Agents. adopted by the General Assembly of the United Nations on 14 December 1973: 5 the Internntiorrul Convention Against the Taking of Hostages, adopted by the General Assembly of the United Nations on 17 December 1979; the Co~zverrtion on the Physical Protection of Nuclear Material. adopted at Vienna on 26 October 1979: the Protocol for the Suppression of UnlawfLd Acts of Violence or Airports I O Serving Internntional Civil Aviation, adopted at Montreal on 24 February 1988; the Converztioll,for the Slcppression of Unlawfid Acts against the Safety of Maritinze Navigation, 1988. adopted at Rome on 10 March 1988; the Protocol for the SLtppl-essioII of Unlawfkl Acts against the Sqfety of 15 ,fi.xed Plarfornzs on the Continental Shev, 1988, adopted at Rome on 10 March 1988; the Converztion on the Marking of Plastic Explosives for the Pul-pose of Detection, signed at Montreal on 1 March 1991 ; the International Convention for the Suppression of Terrorist Bolnbings, 20 adopted by the General Assembly of the United Nations on 15 December 1997; the Convention on the Prevention and Combating of Terrorism, adopted by the Organisation of African Unity at Algiers on 14 July 1999; or the International Convention 017 the Suppression of the Financing of 25 Terrorism, adopted by the General Assembly of the United Nations on 9 December 1999;
“international organisation”, with reference to the definitions of “inter- governmental organisation”, “internationally protected person” and “terrorist activity” in this section, means an international organisation of 30 states, and includes an intergovernmental organisation; “intergovernmental organisation”, with reference to the definitions of “international organisation”, “internationally protected person”, “State or government facility” and “terrorist activity” in this section, and section 7, means an international organisation established by the governments of 35 states; “internationally protected person”, with reference to section 8, means- (a) a Head of State, including any member of a collegial body performing
the functions of a Head of State under the constitution of the State concerned, a Head of Government or a Minister for Foreign Affairs, 40 whenever any such person is in the Republic, as we11 as members of his or her family accompanying him or her; or
(b) any representative or official of a State or any official or other agent of an international organisation or intergovernmental organisation or of an intergovernmental character who, at the time when and in the place 45 where a crime against him or her or his or her official premises, his or her private accommodation or his or her means of transport is committed, i s entitled, pursuant to international law to special protection from any attack on his or her person, freedom or dignity, as well as members of his or her family forming part of his or her household; 50
“judge” means a Judge of the High Court; “Minister” means the Minister for Safety and Security; “National Commissioner” means the National Commissioner of the South African Police Service appointed in terms of section 207(1) of the Constitution; 55 “National Director” means the National Director of Public Prosecutions appointed in terms of section 179( 1) of the Constitution;
13 No.
Act No. 33.
(xviiij
(xix)
(xx)
(xxi)
(xxii)
(xxiii)
(xxiv)
27266 GOVERNMENT GAZETTE. 1 I FEBRUARY 2005
,2004 PROTECTION OF CONSTITUTIONAL DEMOCRACY AGAINST TERRORIST AND RELATED ACTIVITIES ACT. 2004
“place of public use”, with reference to section 5. includes those parts of any building, land, street, waterway or other location that are at any time accessible or open to members of the public. whether continuously, periodically or occasionally; “police official” means a “member” as defined in section 1 of the South African Police Service Act, 1995 (Act No. 68 of 1995), and with reference to section 24, includes a member of the South African National Defence Force employed in co-operation with the South African Police Service in terms of section 201 (2)(a) of the Constitution in the prevention and combating of crime and maintenance and preservation of law and order within the Republic, as contemplated in section 19(1) of the Defence Act, 2002 (Act No. 42 of 2002); “property” means money or any other movable, immovable, corporeal or incorporeal thing, and includes any rights, privileges, claims and securities and any interest therein and all proceeds thereof; “public transportation system”, with reference to section 5, means all facilities, conveyances and instrumentalities, whether publicly or privately owned, that are used in or for publicly available services for the transportation of persons or cargo; “ship”, with reference to the definition of “fixed platform” in this section and section 10, means a vessel of any type whatsoever not permanently attached to the sea-bed, including dynamically supported craft, submersibles or other floating craft, but does not include- ( a ) a warship; (6) a ship owned or operated by a State; or (c ) a ship which has been withdrawn from navigation or laid up; “specified offence”, with reference to section 4, 14 (in so far as it relates to section 4), and 23, means- (a) the offence of terrorism referred to in section 2, an offence associated or
connected with terrorist activities referred to in section 3, a Convention offence, or an offence referred to in section 13 or 14 (in so far as it relates to the aforementioned sections); or
(b) any activity outside the Republic which constitutes an offence under the law of another state and which would have constituted an offence referred to in paragraph (a) , had that activity taken place in the Republic;
“State or government facility”, with reference to section 5, includes any permanent or temporary facility or conveyance that is used or occupied by representatives of a State, members of Government, the legislature or the judiciary or by officials or employees of a State or any other public authority or entity of the Republic or by employees or officials of an intergovernmental organisation in connection with their official duties; “terrorist activity”, with reference to this section and sections 2, 3 and 17(2), means- (a) any act committed in or outside the Republic, which-
(i) involves the systematic, repeated or arbitrary use of violence by any means or method;
(ii) involves the systematic, repeated or arbitrary release into the environment or any part of it or distributing or exposing the public or any part of it t o -
(aa) any dangerous, hazardous, radioactive or harmful sub-
(bb) any toxic chemical; or (cc) any microbial or other biological agent or toxin;
(iii) endangers the life, or violates the physical integrity or physical freedom of, or causes serious bodily injury to or the death of, any person, or any number of persons;
(iv) causes serious risk to the health or safety of the public or any segment of the public;
stance or organism;
5
10
15
20
25
30
35
40
45
50
55
I6 No. 27266 GOVERNMENT GAZETTE. I 1 FEBRUARY 2005
Act No. 33,2004 PROTECTION OF CONSTITUTIONAL DEMOCRACY AGAINST TERRORIST AND RELATED ACTIVlTIES ACT. 2003
(v) causes the destruction of or substantial darnage to any property. natural resource. or the environmental 01- cultural heritase. whether public or private;
(vi) is designed or calculated to cause serious interference with or serious disruption of an essential service. facility or system, or the delivery of any such service. facility 01- system, whether public or private, including. but not limited t o -
(an) a system used for, or by, an electronic system. including
(Db) a telecommunication service or system; (cc) a banking or financial service or financial system; (dd) a system used for the delivery of essential government
(ee) a system used for, or by, an essential public utility or
(8) an essential infrastructure facility; or (gg) any essential emergency services, such as police, medical
(vii) causes any major economic loss or extensive destabilisation of an economic system or substantial devastation of the national economy of a country; or
(viii) creates a serious public emergency situation or a general insurrection in the Republic,
whether the harm contemplated in paragraphs (a)(i) to (vii) is or may be suffered in or outside the Republic, and whether the activity referred to in subparagraphs (ii) to (viii) was committed by way of any means or method; and
(b) which is intended, or by its nature and context, can reasonably be regarded as being intended, in whole or in part, directly or indirectly, to-
an information system;
services;
transport provider;
or civil defence services;
(i) threaten the unity and territorial integrity of the Republic; (ii) intimidate, or to induce or cause feelings of insecurity within, the
public, or a segment of the public, with regard to its security, including its economic security, or to induce, cause or spread feelings of terror, fear or panic in a civilian population; or
(iii) unduly compel, intimidate, force, coerce, induce or cause a person, a government, the general public or a segment of the public, or a domestic or an international organisation or body or intergovernmental organisation or body, to do or to abstain or refrain from doing any act, or to adopt or abandon a particular standpoint, or to act in accordance with certain principles,
whether the public or the person, government, body, or organisation or institution referred to in subparagraphs (ii) or (iii), as the case may be, is inside or outside the Republic; and
(c) which is committed, directly or indirectly, in whole or in part, for the purpose of the advancement of an individual or collective political, religious, ideological or philosophical motive, objective, cause or undertaking;
(xxvi) “terrorist and related activities” means any act or activity related to or associated or connected with the commission of the offence of terrorism, or an offence associated or connected with a terrorist activity, or a Convention offence, or an offence referred to in sections 11 to 14.
(2) For purposes of this Act, “act” includes “omission”.
S
10
1s
20
25
30
35
40
45
50
18 No. 27266 GOVERNMENT GAZETTE. I I FEBRUARY 2005
Act No. 33,2004 PROTECTION OF CONSTITUTIONAL DEMOCRACY AGAINST TERRORIST AND REL’4TED ACTIVITIES ACT. 2004
(3) For the purposes of paragraph (o)(vi) and (vii) of the definition of “terrorist activity”. any act which is committed in pursuance of any advocacy, protest. dissent or industrial action and which does not intend the harm contemplated in paragraph (o)(i) to (v) of that definition, shall not be regarded as a terrorist activity within the meaning of that definition.
(4) Notwithstanding any provision of this Act or any other law, any act committed during a struggle waged by peoples, including any action during an armed struggle. in the exercise or furtherance of their legitimate right to national liberation, self- determination and independence against colonialism, or occupation or aggression or domination by alien or foreign forces. in accordance with the principles of international law, especially international humanitarian law, including the purposes and principles of the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the said Charter, shall not, for any reason, including for purposes of prosecution or extradition, be considered as a terrorist activity, as defined in subsection (1).
( 5 ) Notwithstanding any provision in any other law, and subject to subsection (4), a political, philosophical, ideological, racial, ethnic, religious or any similar motive, shall not be considered for any reason, including for purposes of prosecution or extradition, to be a justifiable defense in respect of an offence of which the definition of terrorist activity forms an integral part.
(6) For the purposes of this Act a person has knowledge of a fact if- ( a ) the person has actual knowledge of that fact; or (b) the court is satisfied that-
(i) the person believes that there is a reasonable possibility of the existence
(ii) he or she fails to obtain information to confirm the existence of that fact. (7) For the purposes of this Act a person ought reasonably to have known or suspected
a fact if the conclusions that he or she ought to have reached, are those which would have been reached by a reasonably diligent and vigilant person having both-
( a ) the general knowledge, skill, training and experience that may reasonably be
(b) the general knowledge, skill, training and experience that he or she in fact has.
of that fact; and
expected of a person in his or her position; and
CHAPTER 2
OFFENCES AND PENALTIES
PART I
Offence of terrorism and offences associated or connected with terrorist activities
Offence of terrorism
2. Any person who engages in a terrorist activity is guilty of the offence of terrorism.
Offences associated or connected with terrorist activities
3. (1) Any person who- (a) does anything which will, or is likely to, enhance the ability of any entity to
engage in a terrorist activity, including to provide or offering to provide a skill or an expertise;
(b) enters or remains in any country; or (c) makes himself or herself available,
for the benefit of, at the direction of, or in association with any entity engaging in a terrorist activity, and who knows or ought reasonably to have known or suspected, that such act was done for the purpose of enhancing the ability of such entity to engage in a terrorist activity, is guilty of the offence associated with a terrorist activity.
(2) Any person w h o- ( a ) provides or offers to provide any weapon to any other person for use by or for
(b) solicits support for or gives support to an entity; (c) provides, receives or participates in training or instruction, or recruits an entity
the benefit of an entity;
to receive training or instruction;
5
10
15
20
25
30
35
40
45
50
55
20 No. 27266 GOVERNMENT GATETTE. 1 1 FEBRUARY 2005
Act No. 33.2004 PROTECTION OF CONSTITUTIONAL DEMOCRACY AGAINST TERRORIST AND RELATED ACTIVITIES ACT. 2004
( d l recluits any entity: ( e ) collects or makes a document: or (f) possesses a thing.
connected with the engagement in a terrorist activity. and who knows or ought reasonably to have known or suspected that such weapons, soliciting, training, 5 recruitment, document or thing is so connected. is guilty of an offence connected with terrorist activities.
PART 2
Convention Offences
Offences associated or connected with financing of specified offences 10
4. (1) Any person who, directly or indirectly, in whole or in part, and by any means or -
15
acquires property; collects property; uses property; possesses property; owns property; provides or makes available, or invites a person to provide or make available property; provides or makes available, or invites a person to provide or make available 20 any financial or other service; provides or makes available, or invites a person to provide or make available economic support; or facilitates the acquisition, collection, use or provision of property, or the provision of any financial or other service, or the provision of economic 25 support,
intending that the property, financial or other service or economic support, as the case may be, be used, or while such person knows or ought reasonably to have known or suspected that the property, service or support concerned will be used, directly or indirectly, in whole or in part- 30
(i) to commit or facilitate the commission of a specified offence; (ii) for the benefit of, or on behalf of, or at the direction of, or under the
control of an entity which commits or attempts to commit or facilitates the commission of a specified offence; or
(iii) for the benefit of a specific entity identified in a notice issued by the 35 President under section 25,
is guilty of an offence.
method- (2) Any person who, directly or indirectly, in whole or in part, and by any means or
( a ) deals with, enters into or facilitates any transaction or performs any other act 40 in connection with property which such person knows or ought reasonably to have known or suspected to have been acquired, collected, used, possessed, owned or provided- (i) to commit or facilitate the commission of a specified offence;
(ii) for the benefit of, or on behalf of, or at the direction of, or under the 45 control of an entity which commits or attempts to commit or facilitates the commission of a specified offence; or
(iii) for the benefit of a specific entity identified in a notice issued by the President under section 25; or
(b) provides financial or other services in respect of property referred to in 50 paragraph fa),
is guilty of an offence. (3) Any person who knows or ought reasonably to have known or suspected that
property is property referred to in subsection ( 2 ) (a ) and enters into, or becomes concerned in, an arrangement which in any way has or is likely to have the effect of- 55
( a ) facilitating the retention or control of such property by or on behalf of- (i) an entity which commits or attempts to commit or facilitates the
commission of a specified offence; or
22 KO. 21266 GOVERNMENT GAZETTE. I 1 FEBRUARY 3005
Act NO. 33.2004 PROTECTION OF CONSTiTUTiONAL DEMOCRACY AG41NS7 TERRORIST AND RELATED ACTIVITJES ACT. 2004
( i i ) a specific entity identified i n a notice issued by the President under section 3 :
(17) converting such property; (c ) concealing or disguising the nature, source, location, disposition or movement
of such property, the ownership thereof or any interest anyone may have S therein;
( d ) removing such property from a jurisdiction; or ( e ) transfen-ing such property to a nominee.
is guilty of an offence.
Offences relating to explosive or other lethal devices 10
5. Any person who intentionally delivers, places, discharges or detonates an explosive or other lethal device in, into or against a place of public use, a state or government facility, a public transport facility, a public transportation system, or an infrastructure facility. with the purpose, amongst others, of causing-
(0 ) death or serious bodily injury; or 1s (0 ) extensive damage to, or destruction of such a place, facility or system, where
such destruction results in or is likely to result in major economic loss, is guilty of an offence relating to explosive or other lethal devices.
Offences relating to hijacking, destroying or endangering safety of a fixed platform
6. Any person who intentionally- ' 20 ( a ) seizes or exercises control over a fixed platform by force or any other form of
intimidation; (h ) performs an act of violence against a person on board a fixed platform, which
act is likely to endanger the safety of that fixed platform; ( c ) (i) destroys such a fixed platform; or 25
(ii) causes damage to it, which damage is likely to endanger the safety of that
(d) places or causes to be placed on a fixed platform, by any means whatsoever, a device or substance, which is likely to destroy that fixed platform or likely to endanger its safety; or 30
( e ) injures or kills any person in connection with the commission of any of the acts referred to in paragraphs ( a ) to (dl ,
is guilty of an offence relating to the hijacking, destroying or endangering of a fixed platform.
fixed platform;
Offences relating to taking a hostage 35
7. Any person who intentionally- ( a ) seizes or detains; and ( b ) threatens to kill, to injure or to continue to detain,
any other person (hereinafter referred to as a hostage), in order to compel a third party, namely a State, an intergovernmental organisation, a natural or juridical person, or a 40 group of persons to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage, is guilty of an offence of taking a hostage.
Offences relating to causing harm to internationally protected persons
8. Any person who, knowing that a person is an internationally protected person, intentionally- 45
( a ) murders or kidnaps or otherwise violently attacks the person or liberty of that person; or
(bi executes a violent attack upon the official premises, the private accommoda- tion or the means of transport of that person, which attack is likely to endanger his or her person or liberty, 50
is guilty of an offence relating to causing harm to an internationally protected person.
Act NO. 33,2004 PROTECTION OF CONSTITUTIONAL DLMOCRACY AGAlNSl TERRORIST AND REL‘4TED ACTIVITIES ACT. 2004
Oftences relating to hijacking an aircraft
9. Any person who intentionally, by force or threat thereof. or by any other form of
(a ) causing any person on board the aircraft to be detained against his or her will: ( h ) causing any person on board the aircraft to be transported againsr his or her 5
will to any place other than the next scheduled place of landing of the aircraft; (c) holding any person on board the aircraft for ransom or to service against his or
her will: or ( d ) causing that aircraft to deviate from its flight plan.
intimidation. seizes or exercises control of an aircraft and with the purpose of-
is guilty of an offence of hijacking an aircraft. 10
Offences relating to hijacking a ship or endangering safety of maritime navigation
10. Any person who intentionally- seizes or exercises control over a ship by force or threat thereof or any other form of intimidation; performs any act of violence against a person on board a ship if that act is 15 likely to endanger the safe navigation of that ship; destroys a ship or causes damage to a ship or to its cargo which is likely to endanger the safe navigation of that ship; places or causes to be placed on a ship, by any means whatsoever, a device or substance which is likely to destroy that ship, or causes damage to that ship or 20 its cargo which endangers or is likely to endanger the safe navigation of that ship; destroys or seriously damages maritime navigational facilities or seriously interferes with their operation, if such acts are likely to endanger the safe navigation of a ship; 25 communicates information, knowing the information to be false and under circumstances in which such information may reasonably be believed, thereby endangering the safe navigation of a ship; or injures or kills a person, in connection with the commission of any of the acts set forth in paragraphs (a) to (fl, 30
is guilty of an offence relating to hijacking a ship or endangering the safety of maritime navigation.
PART 3
Other ogences
Offences relating to harbouring or concealment of persons committing specified 35 offences
11. Any person who harbours or conceals any person, whom he or she knows, or ought reasonably to have known or suspected, to be a person who has committed a specified offence, as referred to in paragraph (a ) of the definition of “specified offence”, or who is likely to commit such an offence, is guilty of an offence. 40
Duty to report presence of person suspected of intending to commit or having committed an offence and failure to so report
12. (1) Any person w h o- (a) has reason to suspect that any other person intends to commit or has
(b) is aware of the presence at any place of any other person who is so suspected
must report as soon as reasonably possible such suspicion or presence, as the case may be, or cause such suspicion or presence to be reported to any police official.
committed an offence referred to in this Chapter; or 45
of intending to commit or having committed such an offence,
26 No. 27266 GOVERNMENT GAZETTE. 1 1 FEBRUARY ZUOS
Act No. 33.2004 PROTECTION OF CONSTII‘UTIONAI. DEMOCRACY AGAINST TERRORIST AND RELATED ACTIVITIES ACT. 2003
(2) Any person who fails to comply with the provisions of subsection ( l ) ( o j or (b) , is y i l t y of an offence.
(3) Upon receipt of a report referred to i n subsection (1). the police official involved. must take down the report in the manner directed by the National Commissioner. and forthwith provide the person who made the report with an acknowledgement of receipt of such report.
(4) (0) The National Commissioner must, at the commencement of this Act, publish the direction contemplated in subsection (3) in the Grrzertr.
( b ) Any direction issued under subsection (3) must be tabled in Parliament. (5) A person required to make a report in telms of subsection (1) concerning a
suspicion that any other person intends to commit 01- has committed an offence referred to in section 4, may continue with and carry out any transaction to which such a suspicion relates, unless directed in terms of subsection (6) not to proceed with such a transaction.
(6) If a police official authorised thereto by the National Commissioner, after consulting with a person required to make a report contemplated in subsection ( 5 ) , has reasonable grounds to suspect that a transaction referred to in that subsection may constitute an offence contemplated in section 4, that police official may direct that person, in writing, not to proceed with the carrying out of that transaction or any other transaction in respect of the property affected by that transaction for a period as may be determined by that police official, which may not be more than five days.
(7) For the purposes of calculating the period of five days in subsection (6 ) , Saturdays, Sundays and proclaimed public holidays must not be taken into account.
(8) Subsection (6 ) does not apply to the carrying out of a transaction to which the rules of an exchange licensed in terms of the Stock Exchanges Control Act, 1985 (Act No. 1 of 1985), or the Financial Markets Control Act, 1989 (Act No. 55 of 1989), apply.
Offences relating to hoaxes
13. (1) (a ) Any person who, with the intention of inducing in a person anywhere in the world a false belief that a substance, thing or device is, or contains, or is likely to be, or contains a noxious substance or thing or an explosive or other lethal device-
(i) places that substance, thing or device in any place; or (ii) sends that substance, thing or device from one place to another, by post, rail or
any other means whatsoever, is guilty of an offence.
(b ) Any person who, directly or indirectly, communicates any information, which he or she knows, or ought reasonably to have known or suspected, or believes to be false, with the intention of inducing in a person anywhere in the world a belief that a noxious substance or thing or an explosive or other lethal device is likely to be present (whether at the time the information is communicated or later) i n or at any place, is guilty of an offence.
(2) For the purposes of this section “substance” includes any biological agent and any other natural or artificial substance (whatever its form, origin or method of production).
Threat, attempt, conspiracy and inducing another person to commit offence
14. Any person who- ( a ) threatens; (bj attempts; (c) conspires with any other person; or (d) aids, abets, induces, incites, instigates, instructs or commands, counsels or
procures another person, to commit an offence in terms of this Chapter, is guilty of an offence.
5
10
1.5
20
25
30
35
40
45
75 No. 27266 GOVERNMENT GAZETTE. I I FEBRUARY 2005
Act NO. 33.2004 PROTECTION OF CONSTITUTION.4L DEMOCRACY AGAINST TERRORIST AND RELATED ,ACTIVITIES ACT. 2004
CHAPTER 3
PROVISIONS RELATING TO OFFENCES AND PENALTIES
PART I
Provisions relating to offences
Jurisdiction in respect of offences 5
15. (1) A court of the Republic has jurisdiction i n respect of any specified offence as
( a ) the accused was arrested in the territory of the Republic, or in its territorial waters or on board a ship or aircraft registered or required to be registered in the Republic; or 10
defined in paragraph (a ) of the definition of “specified offence”, if-
( b ) the offence was committed- in the territory of the Republic; on board a vessel, a ship, an off-shore installation, or a fixed platform, or an aircraft registered or required to be registered in the Republic at the time the offence was committed; 15 by a citizen of the Republic or a person ordinarily resident in the Republic; against the Republic, a citizen of the Republic or a person ordinarily resident in the Republic; on board an aircraft in respect of which the operator is licensed in terms 20 of the Air Services Licensing Act, 1990 (Act No. 115 of 1990), or the International Air Services Act, 1993 (Act No. 60 of 1993); against a government facility of the Republic abroad, including an embassy or other diplomatic or consular premises, or any other property of the Republic; 25 when during its commission, a national of the Republic is seized, threatened, injured or killed; in an attempt to compel the Republic to do or to abstain or to refrain from doing any act; or
(c) the evidence reveals any other basis recognised by law. 30 (2) Any act alleged to constitute an offence under this Act and which is committed
outside the Republic by a person other than a person contemplated in subsection (l), shall, regardless of whether or not the act constitutes an offence or not at the place of its commission, be deemed to have been committed also in the Republic if that-
( a ) act affects or is intended to affect a public body, any person or business in the 35
(b) person is found to be in the Republic; and (c) person is for one or other reason not extradited by the Republic or if there is
no application to extradite that person.
Republic;
(3) Any offence committed in a country outside the Republic as contemplated in 40 subsection (1) or (2), is, for the purpose of determining the jurisdiction of a court to try the offence, deemed to have been committed-
(a) at the place where the accused is ordinarily resident; or (b) at the accused person’s principal place of business.
(4) Where a person is charged with conspiracy or incitement to commit an offence or 45 as an accessory after that offence, the offence is deemed to have been committed not only at the place where the act was committed, but also at every place where the conspirator, inciter or accessory acted or, in case of an omission, should have acted.
( 5 ) Whenever the National Commissioner receives information from an appropriate government body of a foreign State that a person who is alleged to have committed or 50 is convicted of or is sentenced in respect of any Convention offence in respect of which-
( a ) a court in the Republic has jurisdiction as referred to in subsection (1); or
30 No. 27266 GOVERNMENT GAZETTE. I 1 FEBRL’ARY 2005
Act No. 33.2004 PROTECTION OF CONSTITUTIONAL DEMOCRACY AGAINST TERRORIST AND RELATED ACTIVITIES ACT. 2004
(b) any court i n a foreign State may have jurisdiction, may be present i n the Republic, the National Commissioner must cause such measures to be taken as he or she may deem necessary to investigate the matter.
(6) Where i t appears on reasonable grounds from the investigation referred to in subsection ( 5 ) that extradition or criminal proceedings may be instituted against such 5 person, that person may be arrested as contemplated in section 40(1) of the Criminal Procedure Act. 1977 (Act No. 5 1 of 1977), in order to ensure his or her presence at such proceedings.
(7) The National Director must, upon an arrest contemplated in subsection (6), promptly be notified thereof by the police official effecting such arrest. 10
(8) Upon being notified in terms of subsection (7), the National Director must promptly notify any foreign State that might have jurisdiction over the offence in question, either directly or through the Secretary General of the United Nations-
( a ) of the fact that the person is in custody; (b) of the circumstances that justify the person’s detention; and 15 (c ) whether he or she intends to prosecute the person,
with a view to the surrender of such person to a foreign State for prosecution by that State, should the National Director decline to prosecute.
(9) The provisions of this section must be exercised subject to the provisions of the Extradition Act, 1962 (Act No. 67 of 1962). 20
Consent of National Director to institute proceedings and reporting obligations
16. (1) No prosecution under Chapter 2 may be instituted without the written
(2) The National Director must communicate the final outcome of the proceedings authority of the National Director.
promptly t u - 25 the Secretary General of the United Nations, so that he or she may transmit the information to other members of the United Nations, if a person is prosecuted for an offence referred to in section 4, 5 , 7 or 8; the Council of the International Civil Aviation Organization, if a person is prosecuted for an offence referred to in section 9; or 30 the Secretary General of the International Maritime Organization, if a person is prosecuted for an offence referred to in section 6 or 10.
Evidential matters and exclusions
17. (1) If in any proceedings in a court of law any question arises as to whether or not any person is an internationally protected person, or is pursuant to international law 35 entitled to special protection from any attack on his or her person, freedom or dignity, a certificate under the hand or issued under the authority of the Director General of the Department of Foreign Affairs, stating any fact relating to that question, is prima facie evidence of that fact.
relates to the aforementioned sections), notwithstanding whether the terrorist activity occurs or not.
(3) A person commits an offence under section 3, 4, 11 or 14 (in so far as it relates to the aforementioned sections), whether or not-
(2) A person commits an offence under section 2, 3, 4, 11, 12(2) or 14 (in so far as it 40
(a) the actions of the accused actually enhance the ability of any person to commit 45
(b) the accused knows or ought reasonably to have known or suspected the
(4) Nothing in section 4 makes it an offence to provide or collect funds intending that they be used, or knowing or while a person ought reasonably to have known or 50 suspected that they are to be used, for the purpose of advocating democratic government or the protection of human rights.
( 5 ) If a person reports the presence of a person referred to in section 11, as soon as possible in accordance with section 12, he or she shall not be liable for prosecution, under section 11. 55
a specified offence; or
specific offence that may be committed.
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Act No. 33.2004 PROTECTION OF CONSTITUTIONAL DEMOCRACY ,4GAINS7 TERRORlST AND REL.4TED ACTIVITIES ACT. 2004
(6) A person charged with committing an offence under section 4 may raise as a
((7) the fact that he or she had performed any act in connection with the property in question, or allowed or facilitated the performance of any act in connection with that property. solely for the purpose of preserving the value of that S property; or
(0) that he or she acted i n good faith and reported his or her suspicion in accordance with section 12 of this Act, or section 29 of the Financial Intelligence Centre Act, 2001 (Act No. 38 of 2001), as the case may be.
(7) No action, whether criminal or civil, lies against a person complying in good faith 10 with section 12(1).
(8) A person who has made, initiated or contributed to a report in terms of section 12( 1) concerning a suspicion that any other person intends to commit or has committed an offence referred to in section 4 is competent, but not compellable, to give evidence in criminal proceedings arising from the report. 15
(9) No evidence concerning the identity of a person who has made, initiated or contributed to a report in terms of section 12( 1) concerning a suspicion that any other person intends to commit or has committed an offence referred to in section 4, is admissible as evidence in criminal proceedings unless that person testifies at those proceedings. 20
(10) A person who acts reasonably in taking or omitting to take measures to comply with section 4(2) shall not be liable in any civil action arising from having taken or omitted to have taken those measures, if the person proves that he or she took all reasonable steps to satisfy himself or herself that the relevant property was not owned, controlled or possessed by, or on behalf of or for the benefit of or at the direction of, an 25 entity referred to in the said section 4(2).
(1 1) A person is guilty of an offence under section 13(l)(a) or (b), whether or not he or she has any particular person in mind as the person in whom he or she intends to induce the belief in question.
defence-
PART 2 30
Penalties and matters relating to penalties
Penalties
18. (1) Any person who is convicted of an offence referred to in- ( a ) section 2, 5 , 6 , 7 , 8, 9 or 10 is liable-
(i) in the case of a sentence to be imposed by a High Court, to a fine or to 35
(ii) in the case of a sentence to be imposed by a regional court, to a fine or to
(iii) in the case of a sentence to be imposed by any magistrate’s court, to a fine
imprisonment for a period up to imprisonment for life;
imprisonment for a period not exceeding 18 years;
or to imprisonment for a period not exceeding five years; 40 16) section 3 or 11 is liable-
(i) in the case of a sentence to be imposed by a High Court or a regional court,
(ii) in the case of a sentence to be imposed by any magistrate’s court, to any to a fine or to imprisonment for a period not exceeding 15 years;
penalty which may lawfully be imposed by that court; 45 (c) section 4, is liable-
(i) in the case of a sentence to be imposed by a High Court or a regional court, to a fine not exceeding RIOO million or to imprisonment for a period not exceeding 15 years;
(ii) in the case of a sentence to be imposed by any magistrate’s court, to a fine SO not exceeding R250 OOO,OO, or to imprisonment for a period not exceeding five years;
(d) section 13(l)(a) or (b), is liable- (i) in the case of a sentence to be imposed by a High Court or a regional court,
to a fine or to imprisonment for a period not exceeding 10 years; 55
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hct NO. 33,2004 PROTECTlON OF CONSTlTUTlONAL DEMOCRACY ACi41NST TERRORIST AND RELATED ACTIVITlES ACT. 2004
( i i ) i n the case of a sentence to be imposed by any magistrate's court, to any penalty which may lawfully be imposed by that court:
( P ) section 12(2). is liable- (i) in the case of a sentence to be imposed by a High Court 01- a regional court.
(ii) i n the case of a sentence to be imposed by any magistrate's court. to any
( f ) section 14. is liable to the punishment laid down in paragraph (a), (b) , (c) (rf) or ( P ) for the offence which that person threatened, attempted or conspired to commit or aided. abetted, induced, instigated, instructed. commanded. 10 counseled or procured another person to commit.
to a fine or to imprisonment for a period not exceeding five years: 5
penalty which may lawfully be imposed by that court;
(2) (a ) The court, in imposing a sentence on a person who has been convicted of an offence under section 13(l)(a) or (b), may order that person to reimburse any party incurring expenses incidental to any emergency or investigative response to that conduct, for those expenses. 15 (0) A person ordered to make reimbursement under paragraph (a) , shall be jointly and
severally liable for such expenses with each other person, if any, who is ordered to make reimbursement under that paragraph for the same expenses.
(c) An order of reimbursement under paragraph (a), shall, for the purposes of enforcement, be treated as a civil judgment. 20
Declarations of forfeiture on conviction
19. (1) Whenever any person is convicted of an offence under this Act, the court in passing sentence must, in addition to any punishment which that court may impose in respect of the offence, declare any property which is reasonably believed to have been used- 25
(a) in the commission of the offence; or (b) for the purpose of or in connection with the commission of the offence,
and which was seized under any power exercised under section 22, or is in the possession or custody or under the control of the convicted person, to be forfeited to the State. 30
(2) The court which makes a declaration of forfeiture of property referred to in subsection ( l ) , must order the registrar of the High Court concerned or clerk of the Magistrate's Court for the district concerned to forthwith publish such declaration calling upon interested parties through the media and by notice in the Gazette.
exercised under section 22, be kept or, if it is in the possession or custody or under the control of the convicted person, be seized and kept-
(a ) for a period of 45 days after the date of the notice published in the Gazette; or (6) if any person referred to in section 20( 1) has, within the period contemplated
in paragraph (a), made an application to the court concerned regarding his or 40 her interest in such thing, until a final decision has been rendered in respect of any such application.
(3) Anything forfeited under subsection (1) must, if it was seized under any power 35
Interests of third parties
20. ( I ) A declaration of forfeiture in terms of section 19( 1) does not affect any interest, which any person other than the convicted person may have in the property in question, 45 if the former person proves-
(a) that he or she acquired the interest in that property in good faith and for
(b) that- consideration, whether in cash or otherwise; and
(i) the circumstances under which he or she acquired the interest in that 50 property were not of such a nature that he or she knew or ought reasonably to have known or suspected that it was property used as contemplated in section 19( 1 ) ; or
(ii) he or she could not prevent the use of that property as contemplated in that section. 55
(2) (a) Subject to the provisions of subsection (l), the court concerned or, if the judge or judicial officer concerned is not available, any judge or judicial officer of that court, may at any time within a period of three years from the date of the declaration of forfeiture, on the application of any person, other than the Convicted person, who claims
.Act No. 33,2004 PROTECTION OF CONSTITUTIONAL DEMOCRACY AGAINST TERRORIST AND I6 of 1999).". ~ ~~
44 Nv. 77266 GOVERNMENT GAZETTE. I I FEBRUARY 2005
.$ct No. 33.2004 PROTECTION OF CONSTITUTIONAL DEMOCRACY AGAINST TERRORIST AND REL.4TED .ACTIVITIES ACT. 2004
Weapons of Mass Destruction Act
i
997 himinal Law {mendment Act
EXTENT OF AMENDMENT OR REPEAL
1. The repeal of the whole Act. 1 .The amendment of section 26(1) of the Act by- (a) the substitution for paragraph (h) of the following paragraph:
"(h) refuses or fails to comply to the best of his *r ability with any lawful requirement, request or order of an officer or employee of the Department, an inspector or a person autho- rized by the Council: lorl".".
'a) endangered the life or caused serious bodily injury to or the death of, any person, or any number or group of persons;
b) caused serious risk to the health or safety of the public or any segment of the public; or
C) created a serious public emergency situation or a general insurrection"
I. BY the addition to Part II of Schedule 2, of the following item: Any offence referred to in section-
~~~ .
those referred to in P G F G F
46 N o . 2710h GOVERNMENT G.4ZFTTE. I 1 FEBRUARY 2005
Act No. 33.2004 PROTECTION OF CONSTITUTIONAL DEMOCRACY AGAINST TERRORIST AND RELATED ACTIVITIES ACT. 2004
ACT NO. 121
Y'EAF
998
TITLE
'revention of Irganised Crime Act
EXTENT OF AMENDMENT OR REPEAL
1. The substitutlon for the long title of the following long title: "Tc introduce measures to combat organised crime, money launder. ing and criminal gang activities; to prohibit certain activities re- lating to racketeering actlvities; to provide for the prohibition of money laundering and for an obligation to report certain infor- mation; to criminalise certam activities associated wlth gangs; tc provide for the recovery of the proceeds of unlawful activity; for the civil forfeiture of crlminal [assets] property that [have] has been used to commit an offence, [or assets] property that [are]
the proceeds of unlawful activity or property that is owned or controlled by, or on behalf of, an entitiy involved in terrorist and related activities; to provide for the establishment of a Criminal Assets Recovery Account; to amend the Drugs and Drug Traf- ficking Act, 1992; to amend the International Co-operation in Criminal Matters Act, 1996; to repeal the Proceeds of Crime Act 1996; to incorporate the provisions contained in the Proceeds oi Crime Act, 1996; and to provide for matters connected there- with.". 2. The amendment of the preamble by- (a) the insertion after the tenth paragraph of the following para- graph: "AND WHEREAS effective legislative measures are necessary to prevent and combat the financing of terrorist and related ac- tivities and to effect the preservation, seizure and forfeiture of property owned or controlled by, or on behalf of, an entity in- volved in terrorist and related activities;"; and (b) the substitution for the eleventh paragraph of the following paragraph: "AND WHEREAS there is a need to devote such forfeited as- sets and proceeds to the combating of organised crime, [and] money laundering and the financing of terrorist and related ac-
3. The insertion in section 1- (a) after the definition of "enterprise" of the following definition: " 'entity' has a corresponding meaning with the expression in section 1 of the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004;"; (b) after the definition of "property" of the following definition:
W;".
" 'property associated with terrorist and related activities' means nrnnntiv which- _r -.., (a) was acquired, collected, used, possessed, owned or pro-
vided for the benefit of, or on behalf of, or at the direction of, or under the control of an entity which commits or attempts to commit or facilitates the commission of a specified of- fence as defined in the Protection of Constitutional Democ- racy against Terrorist and Related Activities Act, 2004; or
-1s No. 27260 GOVERNMENT GAZETTE. 1 I FEBRLlhRY 2005
Act No. 33.2004 PROTECTION OF CONSTITUTIONAL DEMOCRACY AGAINST TERRORIST AND RELATED ACTIVITIES ACT. 2004
YEAR TITLE EXTENT OF AMENDMENT OR REPEAL
(b) has provided financial or economic support to an entity in the commission or facilitatlon of an offence referred to in paragraph (a);’.
4. The substitution in section 38 for subsection (2) of the follow- ing subsection: “(2) The High Court shall make an order referred to In subsec- tion (1) if there are reasonable grounds to believe that the prop- erty concerned- (a) is an instrumentality of an offence referred to in Schedule
(b) is the proceeds of unlawful activities? (c) is property associated with terrorist and related activities.”. 5. The substitution in section 50 for subsection (1) of the follow- ing subsection: “(1) The High Court shall, subject to section 52, make an order applied for under section 48(1) if the Court finds on a balance 01 probabilities that the property concerned- (a) is an instrumentality of an offence referred to in Schedule 1;
(b) is the proceeds of unlawful activities; or
1 ; [or]
[or1
(c) is property associated with terrorist and related activities.”. 6. The substitution for section 51 of the followina section: “Notice of reasonable grounds that propertyis concerned in commission of offence or associated with terrorist and related activities 51. (1) The National Director may apply to a judge in chambers or a magistrate for an order notifying a person having an inter- est in or control over property that there are reasonable ground: to believe that such property is an instrumentality of an offence referred to in Schedule 1 or is property associated with terrorist and related activities. (2) The judge or magistrate shall make an order referred to in subsection (1) if the judge or magistrate is satisfied that there are reasonable grounds to believe that the property concerned is an instrumentality of an offence referred to in Schedule 1” property associated with terrorist and related activities. (3) When a judge or magistrate makes an order under subsec- tion ( I ) , the registrar of the High Court concerned or clerk of the Magistrate’s Court for the district concerned shall issue a notice in the prescribed form to the person referred to in the order, in- forming him or her that there are reasonable grounds to believe that property in which he or she has an interest or over which he or she has control, is an instrumentality of an offence re- ferred to in Schedule 1 or property associated with terrorist and related activities. (4) A notice issued under subsection (3) shall be served on the Derson concerned in the manner in which a summons whereby 5vil proceedings in the High Court are commenced is served.”.
50 N o . 71166 GOVERNMENT GAZFFTE. 1 1 FEBRUARY 2005
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VEAR TITLE EXTENT OF AMENDMENT OR REPEAL
7. The substltutlon In sectlon 52- [a) for subsection (2A) of the following subsection:
“(2A) The High Court may make an order under subsection ( l ) , In relation to the forfeiture of an instrumentality of an offence referred to in Schedule I or property associated with terrorist and related activities, if it finds on a balance of probabilities that the applicant for the order had acquired the interest concerned legally, and- (a) neither knew nor had reasonable grounds to suspect
that the property in which the interest is held is an instru- mentality of an offence referred to in Schedule 1 E property associated with terrorist and related activities; or
(b) where the offence concerned had occurred before the commencement of this Act, the applicant has since the commencement of this Act taken all reasonable steps to prevent the use of the property concerned as an instru- mentality of an offence referred to in Schedule 1 0’ property associated with terrorist and related activities.”.
(b) for subsection (3) of the following subsection: “(3) (a) If an applicant for an order under subsection (1) adduces evidence to show that he or she did not know or did not have reasonable grounds to suspect that the prop- erty in which the interest is held, is an instrumentality of an offence referred to in Schedule 1 or property associated with terrorist and related activities, the State may submit a return of the service on the applicant of a notice issued un- der section 51 (3) in rebuttal of that evidence in respect of the period since the date of such service.
(b) If the State submits a return of the service on the ap- plicant of a notice issued under section 51 (3) as contem- plated in paragraph (a), the applicant for an order under subsection (1) must, in addition to the facts referred to in subsection (2) (a) and (2) (b) (i), also prove on a balance of probabilities that, since such service, he or she has taken all reasonable steps to prevent the further use of the prop- erty concerned as an instrumentality of an offence referred to in Schedule 1 or property associated with terrorist and related activities.”.
(c) for subsection (4) of the followinq subsection: “(4) A High Court making an order for the exclusion of an interest in property under subsection (1) may, in the interest of the administration of justice or in the public interest, make that order upon the conditions that the Court deems appro- priate including a condition requiring the person who applied for the exclusion to take all reasonable steps, within a pe- riod that the Court may determine, to prevent the future use of the property as an instrumentality of an offence referred to in Schedule 1 or property associated with terrorist and related activities.”
8. The substitution in section 54 for subsection (8A) of the fol- lowing subsection: “(8A) The High Court may make an order under subsection ( l ) , in relation to the forfeiture of an instru- mentality of an offence referred to in Schedule 1 ~ or property associated with terrorist and related activities, if it finds on a balance of probabilities that the applicant for the order had acquired the interest concerned legally, and- (a) neither knew nor had reasonable grounds to suspect that
the property in which the interest is held is an instrumental- ity of an offence referred to in Schedule I or property associ- ated with terrorist and related activities; or
(b) where the offence concerned had occurred before the com- mencement of this Act, the applicant has since the com- mencement of this Act taken all reasonable steps to prevent the use of the property concerned as an instrumentality of an offence referred to in Schedule 1 ~ or property associated with terrorist and related activities.”.
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.Act No. 33. 2004 PROTECTION OF CONSTITUTIONAL DEMOCRACY AGAINST TERRORIST AND RELATED ACTIVITIES ACT. 2004
YEAR
__ 999
TITLE
quclear Energy Act
EXTENT OF AMENDMENT OR REPEAL
9. The substitution in section 68 for paragraph (b) of the follow- ing paragraph: "(b) to advise Cabinet in connection with the rendering of finan-
cial assistance to law enforcement agencies in order to combat organised crime, money laundering, criminal gang activities, the financing of terrorist and related activities and crime in general; and".
IO. The insertion in Schedule 1 after item 32 of the following item: "32A Any speclfied offence as defined in the Protection of Con- stitutional Democracy against Terrorist and Related Activities Act. 2004:" 1. The insertion of the following new section 34A.: Prohibitions relating to nuclear material "34A. (1) For purposes of this section, "international organisa tion", has the meaning ascribed to it in section 1 of the Protec- tion of Constitutional Democracy against Terrorist and Related Activities Act, 2004. (2) No person may- (a) intentionally and without lawful authority, receive, possess,
use, transfer, alter, dlspose of or disperse, nuclear material which causes or is likely to cause death or serious bodily injury to any person or substantial damage to property;
(bj intentionally obtain nuclear material by means of theft or robbery;
(c) intentionally obtain nuclear material by means of em- bezzlement or fraud;
(d) intentionally demand nuclear material by threat or use of force, or by any other form of intimidation;
(e) intentionally threaten t o - (i) use nuclear material to cause death or serious injury
to any person or substantial damage to property; (ii) commit an act described in paragraph (b) in order to
compel a natural or legal person, international organisation or State to do or to refrain from doing an\/ art. -. .
(f) use any nuclear material or device or use or damage a I --.I
nuclear installation or nuclear plant in a manner which re- lease or risk the release of radio-active material, with the intent to-
(i) cause death or serious bodily injury; (ii) cause substantial damage to property or the envlron-
(iii) to compel a natural or juristic person, an international
~~
ment; or
organisation or a State to do, to abstain or refrain from doing an act; or
(g) attempt, conspire with any other person, or aid, abet, in- duce, incite, instigate, instruct or command, counsel or pro- cure another person, to commit an offence referred to in paragraphs (a) to (f)."
5.1 No. 77166 GOVERNMENT GAZETTE. 1 1 FEBRUARY 2005
Act No. 33.2004 PROTECTION OF CONSTITUTIONAI. DEMOCRACY AGAINST TERRORIST AND RELATED ACTlVlTIES ACT. 100-1
ACT NO
38
Y EAF
2001
TITLE
'inancial Intelligence :entre Act
EXTENT OF AMENDMENT OR REPEAL
2. The insertion in section 56(1) of the following new paragraph: "(h) performing any act prohibited under section 34A.". 3. The insertion of the followina new DaraaraDh in section 56f2k "(d) subsection (l)(h), to a fineor to imprisonment for a period up to imprisonment for life".". 4. The insertion of the following new section 56A:
. - , I ,
"Consent of National Director to institute proceedings and reDortina obliaations 56A. (l)-No Gosecution under section 56(l)(h) may be insti tuted without the written authority of the National Director of Public Prosecutions
(2) The National Director must communicate the final out- come of the proceedings promptly to the Director General of the International Atomic Energy Agency if a person is prosecuted for an offence referred to in subsection ( l ) , except where- (a) the offence was committed in the Republic; (b) the offence involved nuclear material used for peaceful
purposes in domestic use, storage or transport; and (c) both the alleged offender and the nuclear material
remained in the territory of the Republic.". 1. The substitution for the long title of the following long title: "To establish a Financial Intelligence Centre and a Money Laun dering Advisory Council in order to combat money laundering activities and the financing of terrorist and related activities; to impose certain duties on institutions and other persons who might be used for money laundering purposes and the financing of terrorist and related activities; to amend the Prevention of Organised Crime Act, 1998, and the Promotion of Access to Information Act, 2000; and to provide for matters connected therewith.". 2. The insertion in section 1= (a) after the definition of "Director" of the followina definition: . . .,
"'entity' has a corresponding meaning with the definition in section 1 of the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004; and
(b) after the definition of "supervisory body" of the following definition: '' 'offence relating to the financing of terrorist and related activities' means an offence under section 4 of the Protec- tion of Constitutional Democracy against Terrorist and Re- lated Activities Act, 2004;"
3. The substitution in section 3 for subsection (1) of the follow- ing subsection: "(1) The principal objective of the Centre is to assist in the iden- tification of the proceeds of unlawful activities and the combat-
. .
ing of money laundering activities and the financing of terrorist and related activities.". 4. The substitution for the heading to Chapter 3 of the following headina: TON~ROL MEASURES FOR MONEY LAUNDERING [CON- TROL MEASURES] AND FINANCING OF TERRORIST AND RELATED ACTIVITIES".
56 No. 11266 GOVERNMENT GAZETTE. I 1 FEBRUARY 2003
.Act No. 33.200-1 PROTECTION OF CONSTITUTIONAL DEMOCRACY AGAINST TERRORIST AND RELATED ACTIVITIES ACT. 2004
4CT NO ~
YEAR TITLE EXTENT OF AMENDMENT OR REPEAL
5. The insertion after section 28 of the following section: "Property associated with terrorist and related activities 28A. (1) An accountable institution whlch has in its possession or under its control property owned or controlled by or on behalf of, or at the direction of - (a) any entity which has committed, or attempted to commit, or
facilitated the commission of a specified offence as defined in the Protection of Constitutional Democracy against Ter- rorist and Related Activities Act, 2004; or
(b) a specific entity identified in a notice issued by the Presi- dent, under section 25 of the Protection of Constitutional Democracy against Terrorist and Related Actlvities Act, 70174 ~
must within the prescribed period report that fact and the pre- scribed particulars to the Centre.
(2) The Director may direct an accountable institution which has made a report under subsection (1) to report- /a ) at such intervals as mav be determined in the direction that
--- .,
, , it is still in possession or control of the property in respect of which the report under subsection ( I ) had been made; and
(b} any change in the circumstances concerning the account- able institution's possession or control of that property.".
6. The substitution in section 29 for subsection (1) of the follow- ing subsection: "(1) A person who carries on a business or is in charge of or manages a business or who is employed by a business and who knows or ought reasonably to have known or suspected that- (a} the business has received or is about to receive the pro-
, ~ ~~ ~ ~~ ~ . . ...., -
ceeds of unlawful activities or property which is connected to an offence relating to the financing of terrorist and related activities;
(b) a transaction or series of transactions to which the business is a party-
(i) facilitated or is likely to facilitate the transfer of the pro- ceeds of unlawful activities or property which is con- nected to an offence relating to the financing of terror- ist and related activities;
(ii) has no apparent business or lawful purpose; (iii) is conducted for the purpose of avoiding giving rise to a
(iv) may be relevant to the investigation of an evasion or reporting duty under this Act; [or]
attempted evasion of a duty to pay any tax, duty or levy imposed by legislation administered by the Com- missioner for the South African Revenue Service; 0'
(v) relates to an offence relatlng to the financing of terror- ist and related activities; or
(c) the business has been used or is about to be used in any way for money laundering purposes or to facilitate the com- mission of an offence relating to the financing of terrorist and related activities,
must, within the prescribed period after the knowledge was ac- quired or the suspicion arose, report to the Centre the grounds for the knowledge or suspicion and the prescribed particulars concerning the transaction or series of transactions.".
5 s No. 17166 GOVERNMENT GA7.ETTE. I I FEBRUARY 7005
Act No. 33.2004 PROTECTION OF CONSTITUTIONAL DEMOCRACY AGAINST TERRORIST AND RELATED ACTIVITIES ACT. 2004
X T VO. __
70
-
TITLE
Regulation of Inter. ception of Commu- nications and Pro- vision of Communication- related Information Act
T EXTENT OF AMENDMENT OR REPEAL
'. The substitution in sectlon 34 for subsection (1) of the follow- 1g subsection: (1) If the Centre, after consulting an accountable institution, a sportlng Institution or a person required to make a report in ?rms of section 2 8 s or 29, has reasonable grounds to sus- lect that a transaction or a proposed transaction may involve l e proceeds of unlawful activlties or property which is con-
elated activities or may constitute money laundermg or [may :onstitUte] a transachon contemplated in section 29(l)(b) it nay direct the accountable institution, reporting institutlon or terson in writing not to proceed with the carrying out of that ransaction or proposed transaction or any other transaction in espect of the funds affected by that transaction or proposed ransaction for a period as may be determined by the Centre, vhich may not be more than five days, in order to allow the >entre- a) to make the necessary inquiries concerning the transaction;
and b) if the Centre deems it appropriate, to inform and advise an
investigating authority or the Natlonal Director of Public Prosecutions.".
1. The substitution in section 35(1) for paragraphs (a) and (b) of he following paragraphs, respectively: '(a) that person has transferred or may transfer the proceeds
of unlawful activities or property which is connected to an offence relating to the financing of terrorist and related ac- tivities to the accountable institution or is using or may use the accountable institution for money laundering purposes or for the financing of terrorist acts or for the purpose of any transaction contemplated in section 29(l)(b); or
'b) that account or other facility has received or may receive
k
-
the proceeds of unlawful activitres or property which is con- nected to an offence relating to the financing of terrorist and related activities or is being or may be used for money laun- dering purposes or for the financing of terrorist or related activities or for the purpose of any transaction contemplated in section 29(l)(b).".
3. The substitution in section 40(1) for paragraph (b) of the fol- owing paragraph:
"(b) an entity outside the Republic performing similar func- tions to those of the Centre, or an investigating authority out- side the Republic which may, at the initiative of the Centre or on written request, obtain information which the Centre rea- sonably believes is relevant to the identification of the pro- ceeds of unlawful activities or the combating of money laun- dering or fmancing of terrorist and related activities or similar offences in the countrv in which that entitv is established:". 1. In the Schedule to- (a) substitute for item 2, the following item: "2. any offence [relating to terrorism] referred to in para- araoh /a) of the definition of "soecified offence" of the Protec- tion of Constitutional Democracy against Terrorist and Re- lated Activities Act, 2004."; and lb) delete item 3.
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