National Conventional Arms Control Act

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Published: 2003-02-20

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National Conventional Arms Control Act [No. 41 of 2002]


Government Gazette
REPUBLIC OF SOUTH AFRICA

Vol. 452 Cape Town 20 February 2003 No. 24575
THE PRESIDENCY No. 257 20 February 2003 It is hereby notified that the President has
assented to the following Act, which is hereby published for general information:–
No. 41 of 2002: National Conventional Arms Control Act, 2002.

2 No. 2451.5 GOVERNMENT GAZETIE, 20 FEBRUARY 2003
Act KO. 41.2002 NATIONAL CONVENTIONAL ARMS CONTROL ACT. 2002
(English text signed by the President.) (Assented to 12 February 2003.)
ACT To establish the National Conventional Arms Control Committee; to ensure compliance with the policy of the Government in respect of arms control; to ensure the implementation of a legitimate, effective and transparent control process; to foster national and international confidence in the control procedures; to provide for an Inspectorate to ensure compliance with the provisions of this Act; to provide for guidelines and criteria to be used when assessing applications for permits made in terms of this Act; to ensure adherence to international treaties and agreements; to ensure proper accountability in the trade in conventional arms; to provide for matters connected with the work and conduct of the Committee and its secretariat; and to provide for matters connected therewith.
PREAMBLE
SINCE the adequate protection of rights to life and security of the person against repression and acts of aggression is fundamental to the well-being and to the social and economic development of every country;
AND SINCE i t is the duty of every government to protect and safeguard the rights of its people:
AND SINCE every responsible country has the right to acquire arms to equip itself against acts of aggression:
AND SINCE the Republic is a responsible member of the international community and will not trade in conventional arms with states engaged in repression, aggression or terrorism:
AND SINCE the Republic is engaged in the manufacturing and export of conventional arms;
AND SINCE it is vitally important to ensure accountability in all matters concerning conventional arms.
B E IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as follows:- Definitions
1. In this Act. unless the context indicates otherwise- (i) “brokering services” means- 5
(a) acting as an agent in negotiating or arranging a contract, purchase, sale or transfer of conventional arms for a commission, advantage or cause, whether financially or otherwise;
(b) acting as an agent in negotiating or arranging a contract for the provision of services for a ccmmission, advantage or cause, whether financially or 10 otherwise;
4 No. 24575 GOVERNMENT GAZETTE, 20 FEBRUARY 2003
Act No. 41,2002 NATIONAL CONVENTIONAL ARMS CONTROL ACT. 2002
(ii)
(iii)
(iv)
(VI
(vi)
(vii)
(viii) (ix)
( X ) (xi)
(xii)
(xiii) (xiv)
(xv)
(xvi) (xvii)
(xviii)
(c) facilitating the transfer of documentatidn, payment, transportation or freight forwarding, or any combination of the aforementioned, in respect of any transaction relating to buying, selling or transfer of conventional arms; and
f d l acting as intermediary between any manufacturer or supplier of 5 conventional arms, or provider of services, and any buyer or recipient thereof;
“Committee” means the National Conventional Arms Control Committee established by section 3; “competent authority” means the Minister, the Chairperson of the Committee 10 or the Committee. or any subcommittee to which, or any member of the Committee, a subcommittee or the secretariat, or any inspector of the Inspectorate. to whom, a power has been delegated or a duty has been assigned in terms of section 11; “Constitution” means the Constitution of the Republic of South Africa, 1996 15 (Act No. 108 of 1996); “contracting” means the entering into a commitment by a person to engage in trade in conventional arms, whether it is done in exchange for currency or any other commodity or to advance a cause; . “conventional arms” includes- 20 fa) weapons, munitions, explosives, bombs, armaments, vessels, vehicles
and aircraft designed or manufactured for use in war, and any other articles of war:
( h ) any component, equipment, system, processes and technology of whatever nature capable of being used in the design, development, 25 manufacture, upgrading, refurbishment or maintenance of anything contemplated in paragraph (a); and
i c ) dual-use goods, but does not include a weapon of mass destruction as defined in the Non-Proliferation of Weapons of Mass Destruction Act, 1993 (Act No. 87 of 30 1993); ”convey”, in relation to conventional arms, means to transport conventional arms through or over the temtory of the Republic, its temtorial waters or its airspace to any other place or destination outside the Republic, whether or not such conventional arms are off-loaded, and “conveyance” must be interpreted 35 accordingly; “Department” means the Department of Defence; ”dual-use goods” means products, technologies, services or other goods which, besides their normal use and application for civilian purposes, can also be used for the furtherance of general military capability, and which are 40 contained in a list published by the Minister by notice in the Gazette; “end-user certificate” means a certificate contemplated in section 17; “export”, in relation to conventional arms, means the transfer of conventional arms from the Republic to any place outside the Republic, and “exportation” must be interpreted accordingly; 45 “import”, in relation to conventional arms, means to bring conventional arms into any part of the Republic, irrespective of whether it is done in exchange for currency or any other commodity, and “importation” must be interpreted accordingly; “Inspectorate” means the Inspectorate established by section 9( 1); 50 “manufacture”, in relation to conventional arms, includes the design, development, production and assembly thereof, and “manufacturing” must be interpreted accordingly; “marketing”, in relation to conventional arms, includes the promotion of conventional arms, and any negotiations, offer, tender advertising, shows, 55 exhibitions or giving of information relating to conventional arms, and “market” when used as a verb must be interpreted accordingly; “Minister” means the Minister of Defence; “national security” has the meaning ascribed to it in section 198 of the Constitution; 60 “permit” means an armaments development and manufacturing permit, a marketing permit, a contracting permit, an export permit, an import permit or a conveyance permit authorised in terms of section 14(2);
- .-
6 No. 24575 GOVERNMENT GAZETTE, 20 FEBRUARY 2003
Act No. 41,2002 NATIONAL CONVENTIONAL A R M S CONTROL ~~ _ _ _ ~ _ _ _ _ ~
(xix)
(XX> (xxi)
(xxii)
(xxiii) (xxiv)
(xxv)
(xxvi) (xxvii)
(xxviii) (xxix)
ACT, 2002
“person” has the meaning assigned to it in thb Interpretation Act, 1957 (Act No. 33 of 1957), and includes an organ of state as defined in the Constitution; “prescribe” means prescribe by regulation made under section 27; “record” includes any book, document, account, deed, plan, instrument, trade list, stock list, affidavit, certificate, photograph, map, drawing, computer 5 print-out as defined in section 1 of the Computer Evidence Act, 1983 (Act No. 57 of 1983), microfilm, computer program, computer data and other data; “re-export”, in relation to conventional arms, means to export imported conventional arms, or to cause imported conventional arms to be exported to any place other than that from which they were originally imported, whether 10 or not it is done in exchange for currency or any other commodity, and “re-exportation’’ must be interpreted accordingly; “secretariat” means the secretariat contemplated in section 8; “Secretary” means the Secretary for Defence appointed in terms of section 7B of the Def nce Act, 1957 (Act No. 44 of 1957); 15 “services” means any services relating to conventional arms of whatever nature or form to any institution of a foreign country, and includes- (a) aid; (b) advice; (c) assistance; (d) training; and ( e ) product support, but excludes contractual after-sales and warranty services performed by virtue of a permit; “subcommittee” means any subcommittee established in terms of section 7; 25 “technology” includes any technique, expertise or know-how that can be utilised in the design, development, manufacture, upgrading, refurbishment or maintenance of conventional arms; “th~s Act” includes any regulation made in terms of section 27; “trade in conventional arms” includes- 30 (a) any activity relating to the manufacturing, marketing, contracting,
exportation, re-exportation, importation or conveyance of conventional arms;
(b) the rendering of brokering services; and (c) the rendering of services. 35
CHAPTER I
COMMITTEE, SECRETARIAT AND INSPECTORATE
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40
Establishment of National Conventional Arms Control Committee
2. A committee to be known as the National Conventional A r m s Control Committee is hereby established.
Objects of Committee
3. The objects of the Committee are to- (a) implement Government policy regarding trade in conventional arms in order
to establish, apply and ensure a legitimate, effective and transparent control process in and for the Republic, which- 45 (i) conforms to international law and the guiding principles and criteria
(ii) is applicable to the control and regulation of trade in conventional arms; (b) protect the economic and national security interests of the Republic by
ensuring adequate control of trade in conventional arms in accordance with 50 the policy referred to in paragraph (a); and
control over trade in conventional arms.
contained in section 15; and
(c) foster national and international confidence in the Committee’s procedures for
8 No. 24575 GOVERNMENT GAZETIE, 20 FEBRUARY 2003
Act No. 41, 2002 NATIONAL CONVENTIONAL ARMS CONTROL ACT, 2002
Functions of Committee t 4. ( 1 ) The Committee must-
(a) establish processes and structures necessary for effective control of trade in
(6) establish guidelines, structures and processes necessary for the scrutiny and
(c) where necessary, liaise with relevant Government agencies regarding the
(d) authorise or refuse the issue of any permit contemplated in section 14; ( e ) ensure that the conditions under which a permit is issued are complied with; cf) keep a register in the prescribed form of persons involved in trade in
(g) keep a register of every permit issued; and (h ) issue reports as specified in section 23.
(a) inside or outside the Republic, conduct any investigation into, inspection of
(b) consult with the Minister with regard to any aspect that falls within the powers
(c) evaluate and comment on trade in conventional arms; (d) make recommendations to the Cabinet concerning the control of trade in
conventional arms; and ( e ) direct any subcommittee to make information which it has in its possession
available to the Committee, the Cabinet, Parliament or any committee of Parliament.
(3) The National Commissioner of the South African Police Service must submit for approval to the Committee any application in terms of the Firearms Control Act, 2000 (Act No. 60 of 2000), for the export of firearms and ammunition of such type and exceeding such quantity as may be prescribed.
conventional arms;
assessment of an application for the issue of a permit;
enforcement of this Act;
conventional arms;
(2) The Committee may-
and research in connection with any trade in conventional arms;
of the Minister in terms of this Act;
Composition of Committee
5. (1) (a) The Committee consists of such Ministers and Deputy Ministers as the President may appoint.
(6) The President may appoint such other persons to the Committee as the President deems necessary.
(2j (a) The President must make the appointment of the members contemplated in subsection (1) known by notice in the Gazette and must specify the period for which each member is appointed.
jb) The President may renew the appointment of a member of the Committee when the period for which the member was appointed expires.
(3) The President must designate one member of the Committee as the chairperson and another as the deputy chairperson, such members being Ministers who do not have a line-function interest in trade in conventional arms.
(4) A member must vacate office if that member- (a) resigns by written notice addressed to the President; (b) is removed from office by the President; or (c) was appointed in terms of subsection (l)(a), and ceases to be a Minister or
(5) The resignation of a member of the Committee in terms of subsection (4)(a) only comes into effect after acceptance by the President.
(6) If a member of the Committee vacates office before the expiry of his or her period of office, the President may appoint a new member for the unexpired portion of that period.
Meetings of Committee
Deputy Minister.
6. (1) The chairperson of the Committee must determine the scheduled time and place of Committee meetings and make this known to the other members of the Committee.
( 2 ) (a) The Committee may determine its own procedure for meetings.
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20
25
30
35
40
45
50
55
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10 No. 24575 GOVERNMENT GAZETTE. 20 FEBRUARY 2003
Act No. 41,2002 NATIONAL CONVENTIONAL ARMS CONTROL ACT, 2002
(b) Four of the members, who must include the chaihrson or deputy chairperson of
(3) The Committee must cause minutes to be kept of its proceedings. (4) The Committee may refer any matter to be considered by it to the Cabinet for a
resolution, which resolution binds the Committee. (5) A decision of the Committee or an act performed in terms of a decision of the
Committee is not invalid merely by reason of a vacancy in the Committee, or by reason of the presence of any person not entitled to sit as a member, at the time when the decision was taken.
the Committee, constitute a quorum.
5
Subcommittees 10
7. (1) The Committee may establish one or more subcommittees, which must perform such functions as the Committee may direct.
(2) A subcommittee must consist of one or more members of the Committee designated by the Committee and, if it is deemed necessary, one or more other persons appointed in terms of subsection (3) for such period as may be determined by the 15 Committee.
(3) The Minister may, with the concurrence of the Committee, appoint persons who are not in the full-time employment of the State to a subcommittee and may grant those persons such allowances and remuneration as the Minister, with the concurrence of the Minister of Finance, may determine in general or in a specific case. 20
(4) The Committee must designate a chairperson for every subcommittee and, if necessary, a deputy chairperson.
( 5 ) When a subcommittee has performed its functions contemplated in subsection (I), it must submit a written report with recommendations to the Committee for consideration. 25
r
(6) The Committee may at any time dissolve a subcommittee. (7) A subcommittee may determine its own procedure for meetings. (8) The Committee is not absolved from responsibility for the performance of any
(9) A decision of a subcommittee or an act performed in terms of a decision of a 30 function assigned to any subcommittee in terms of subsection (1).
subcommittee is not invalid merely by reason of a vacancy in the subcommittee, or by reason of the presence of any person not entitled to sit as a member, at he time when the decision was taken.
Secretariat
8. (1) (a) The work incidental to the performance of the functions of the Committee 35 or a subcommittee must be performed by a secretariat consisting of administrative personnel. (6) The members of the secretariat must be designated by the Minister, after
consultation with the Secretary, from among the employees of the public service. ( 2 ) The Minister may, with the concurrence of the Committee, appoint a person who 40
is not in the full-time employment of the State to the secretariat on such conditions of service and at such remuneration and service benefits as the Minister may determine, with the concurrence of the Minister of Finance.
Inspectorate
9. (1) (a) The Minister must establish an inspectorate that is separate from the 45
(b) The Inspectorate is accountable only to the Committee. ( 2 ) The object of the Inspectorate is to ensure-
secretariat.
(a) that trade in conventional arms is conducted in compliance with this Act; and (b) that the internal regulatory processes of the Committee are complied with. 50
(3) (a) The Inspectorate consists of the persons appointed as inspectors by the
(b) An inspector must possess the necessary expertise to enable him or her to perform
(4) (a) Every inspector must be issued with a document, signed by the Minister, 55
Minister, in consultation with the Committee.
the functions of an inspector efficiently.
confirming that person’s appointment as an inspector.
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Act No. 41,2002 NATIONAL CONVENTIONAL ARMS CONTROL ACT, 2002
(b) When performing functions as an inspector, the inhector must show the document mentioned in paragraph (a) to any person who requests it.
(5) An inspector must be paid such remuneration and allowances as the Minister may determine, after consultation with the Committee and with the approval of the Minister of Finance. 5
Secondment
10. The Minister may, with the concurrence of the Committee and after consultation with the Department of Public Service and Administration, have members of the public service seconded to the secretariat, any subcommittee or any other structure that may be created under this Act, in terms of any law regulating such secondment. 10
Delegation and assignment
11. (1) (a) The Minister may, with the concurrence of the Committee and subject to such conditions as he or she may impose, delegate any power or assign any duty conferred or imposed upon the Minister by or under this Act to any member of the Committee, a subcommittee or the secretariat or to an inspector of the Inspectorate, 15 ' except the power- r
(i) to appoint members to a subcommittee and to grant them allowances and remuneration as contemplated in section 7(3); and
(ii) to make regulations as contemplated in section 27. (b) The Committee may, subject to such conditions as it may determine, delegate or 20
assign to any subcommittee, member of the secretariat or inspector of the Inspectorate any power or duty conferred or imposed upon the Committee by or under this Act.
(c ) A subcommittee may, subject to such conditions as it may determine, delegate or assign to any member of the secretariat or inspector of the Inspectorate any power or duty conferred or imposed upon that subcommittee by or under this Act.
(2) The Minister, Committee and subcommittee are not divested of any power or exempted from any duty delegated or assigned by any of them, and may amend or set aside any decision taken by any person in the exercise of a power or performance of a duty so delegated or assigned.
25
Costs and expenses of Committee, and audit 30
12. (1) The costs and expenses connected with the application of this Act must be defrayed from money appropriated by Parliament to the Department for that purpose.
(2) In addition to the audit of the financial statements of the Department in terms of the Public Finance Management Act, 1999 (Act No. 1 of 1999), the Auditor-General must audit the registers and processes contemplated in section 4. 35
CHAPTER I1
CONTROL AND INSPECTION
Control over conventional arms and provision of service
13. No person may trade in conventional arms unless that person is registered with the secretariat and in possession of a permit authorised by the Committee and issued by the 40 secretariat.
Permits
14. (1) Any person who wishes to obtain a permit contemplated in section 13 must
(2) The Committee may authorise the issue of a permit subject to such conditions as 45 apply to the Committee in the prescribed manner.
it may decide upon, or refuse to authorise the issue of a permit.
14 No. 24575 GOVERNMENT GAZETTE, 20 FEBRUARY 2003
Act No. 41, 2002 NATIONAL CONVENTIONAL ARMS CONTROL ACT, 2002
(3) The Committee must, by notice in writing to the \, .person who has been issued a
(a) cancel or suspend the permit if any condition of the permit has not been or is
(b) cancel the permit if the person who has been issued the permit is convicted of 5
(c) cancel, amend or suspend the permit if it is in the interest of the protection of
(d) cancel, amend or suspend the permit if it is in the interest of maintaining and
permit in terms of subsection (2)-
not being complied with;
an offence in terms of this Act;
the security of the Republic; or
promoting international peace or avoiding repression and terrorism. 10 (4) A permit issued under subsection (2)-
(a) must prescribe the quantity, type and value of the conventional arms which may be exported, re-exported, marketed, imported, conveyed, manufactured, traded or brokered thereunder;
(b) may prescribe the period within which, the harbour, port or airport through or 15 from which, the person, country or territory from or to which, the route along which and the manner in which the conventional arms in question must be exported, re-exported, marketed, imported, conveyed, manufactured or , traded; and
(c) may prescribe such other conditions as the Committee determines. 20 (5) An application for a permit for the re-exportation of conventional arms must be
accompanied by a notification issued by the government of the country from which such conventional arms were originally imported, indicating that government’s consent that such conventional arms may be so re-exported.
(6) A permit issued under subsection ( 2 ) expires- 25 (a) when the particulars of the holder no longer correspond with that person’s
(b) upon the take-over, deregistration, insolvency or liquidation of the business
(c ) upon the death of the person to whom the permit was issued. 30
particulars as entered in a register contemplated in section 4( l)(g);
concern in respect of which the permit was issued; or
(7) A permit issued under this section may not be transferred. (8) The Committee must refuse to authorise a permit if the applicant, or if the
applicant is a company, any executive officer of the company or any member of its board of directors, has after the Constitution took effect been convicted of an offence and sentenced to more than 12 months imprisonment without the option of a fine, either in 35 the Republic, or outside the Republic if the conduct constituting the offence would have been an offence in the Republic.
Guiding principles and criteria
15. When considering applications contemplated in section 14 the Committee must- assess each application on case-by-case basis; 40 safeguard the national security interests of the Republic and those of its allies; avoid contributing to internal repression, including the systematic violation or suppression of human rights and fundamental freedoms; avoid transfers of conventional arms to governments that systematically violate or suppress human rights and fundamental freedoms; 45 avoid transfers of conventional arms that are likely to contribute to the escalation of regional military conflicts, endanger peace by introducing destabilising military capabilities into a region or otherwise contribute to regional instability; adhere to international law, norms and practices and the international 50 obligations and commitments of the Republic, including United Nations Security Council arms embargoes; take account of calls for reduced military expenditure in the interests of development and human security; avoid contributing to terrorism and crime; 55
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Act No. 41,2002 NATIONAL. CONVENTIONAL ARMS CONTROL ACT, 2002
(i) consider the conventional arms control systeri? \ of the recipient country and its record of compliance with end-user certificate undertakings, and avoid the export of conventional arms to a government that has violated an end-user certificate undertaking;
( j) take into account the inherent right of individual and collective self-defence of 5 all sovereign countries in terms of the United Nations Charter; and
( k ) avoid the export of conventional arms that may be used for purposes other than the legitimate defence and security needs of the government of the country of import.
10 Accountability where conventional arms are exported
16. Where conventional arms are exported, and- (a) ownership thereof is transferred, the Committee must satisfy itself that the
government of the country of import has given an undertalung, reflected in an end-user certificate, that the conventional arms in question will not be transferred. re-sold or re-exported to any other country without the prior 15 approval of the Committee, acting on behalf of the Government of South I Africa; I
(i) obtain a letter from the government of the country of import stating that (b) transfer of ownership does not take place, the Committee must-
the arms in question are intended for demonstration or evaluation 20 purposes and whether they will be returned; or
(ii) obtain a letter from the applicant stating that the arms in question are being exported for repair or integration only and will be returned;
( c ) where there is an undertaking that the arms in question are to be returned, the Committee must satisfy itself that the conventional arms have been returned to 25 the Republic in accordance with the undertaking;
(d) the arms in question have been expended during demonstration, the Committee must obtain a certificate from the government of the country of import verifying that fact.
End-user certificate 30
17. Subject to section 16, whenever conventional arms are exported, a person authorised by the government of the country to which the arms are exported must issue a certificate-
(a) setting out the name and address of the declared end-user; (b) giving a description of the conventional arms and quantities involved; 35 i c ) undertaking that the conventional arms will not be transferred or re-exported
to any other party or country without the authorisation of the South African Government;
(d) undertalung that proof of importation will be supplied, by way of a Delivery Verification Certificate; 40
( e ) containing the authorisation to issue the certificate in question; and (f) containing such other matters as may be prescribed.
Routine inspections
18. An inspector of the Inspectorate may during normal office hours enter any premises other than a private dwelling occupied or used by a person in possession of a 45 permit, in order to determine whether the specifications and conditions of the permit are being complied with.
Entry and search of premises with warrant
19. (1) An inspector of the Inspectorate may, on the authority of a warrant issued in terms of subsection (3), enter any premises specified in the warrant, including a private 50 dwelling, and-
(a) inspect, photograph, copy, test and examine any document, record, object or material which he or she suspects might contribute to the investigation
18 No. 24575 GOVERNMENT GAZETIT, 20 FEBRUARY 2003
Act No. 41, 2002 NATIONAL CONVENTIONAL A R M S CONTROL ~~
ACT, 2002
authorised by the warrant, or cause it to be inspected, t photographed, copied, tested and examined;
(b) seize any such document, record, object or material if he or she has reason to suspect that it might be useful as evidence in a criminal trial; and
(c) examine any activity, operation or process carried out on the premises. 5 (2) Upon the request of an inspector acting in terms of a warrant issued in terms of
(a) make available or accessible or deliver to the inspector any document, record, object or material which pertains to the investigation and which is in the possession or under the control of the occupant or other person;
(b) furnish such information as he or she has with regard to the matter under investigation; and
(c) render such reasonable assistance as the inspector may require to perform his or her functions in terms of this Act efficiently.
subsection (3), the occupant and any other person present on the premises must-
10
(3) A warrant contemplated in subsection (1) may be issued by a judge or a 15 magistrate-
(a) in relation to premises on or from which there is reason to believe that trade in conventional arms is being conducted in contravention of this Act; and
(b) if it appears from information on oath or solemn declaration that there are , reasonable grounds to believe that there is evidence available in or upon that 20 premises of a contravention of this Act.
(4) The warrant may impose such restrictions on the powers of the inspector as the judge or magistrate may deem appropriate in the circumstances.
(5 ) The inspector executing a warrant in terms of this section must immediately before commencing the inspection, identify himself or herself to the person in control of 25 the premises. if such person is present, and hand to such a person a copy of the warrant or, if such person is not present, affix such copy to a prominent place on the premises.
Entry and search of premises without warrant
20. An inspector of the Inspectorate may without a warrant exercise any power referred to in section 19(1) if- 30
(a) the person who is competent to do so consents; or (b) there are reasonable grounds to believe that a warrant would be issued in terms
of section 19(3) and that the delay in obtaining the warrant would defeat the object of the warrant.
Disposal of items eized by inspector 35
21. (1) The inspector of the Inspectorate must deliver anythlng seized in terms of section 19 or 20 without delay to a police official contemplated in section 30 of the Criminal Procedure Act, 1977 (Act No. 5 1 of 1977), who must deal with and dispose of the seized item as provided for in Chapter 2 of that Act.
Procedure Act. 1977 (Act No. 51 of 1977), in respect of an item contemplated in subsection ( l ) , he or she must do so after consultation with the inspector of the Inspectorate.
(2) When a police official acts in terms of section 30(a) or (b) of the Criminal 40
Furnishing of information
22. (1) Upon the written request of any competent authority, any person who trades in 45 conventional arms in the course of his or her business must furnish the competent authority, within a specified period or at specified intervals, with such information at his or her disposal as may be specified in the request.
(2 ) The information referred to in subsection (1) must be accompanied by such data and documents as may be indicat d in the request. 50
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Act No. 41,2002 NATIONAL CONVENTIONAL ARMS CONTROL ACT, 2002
Disclosure and non-disclosure of information k 23. (1) The Committee must-
(a) ensure compliance with the annual reporting requirements of the United Nations Register of Conventional Arms and simultaneously present to Parliament a copy of South Africa’s annual report to the United Nations;
(b) make quarterly reports to the Cabinet and a committee of Parliament determined by Parliament on all conventional arms exports concluded during the preceding quarter; and
(c) at the end of the first quarter of each year, present to Parliament and release to the public an annual report on all conventional arms exports concluded uring the preceding calender year,
(2) (a) Subject to paragraph (c), the reports referred to in subsection (l)(b) must contain such information as may be prescribed and must set out the names of the importing states and the type, quantity and value of all the conventional arms in question.
(b) Subject to paragraph (c), the report referred to in section (l)(c) may- (i) only reflect the country and type of conventional arms involved and total
value per type exported to the country for the year; and
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r (ii) reflect the quantity of conventional arms involved, except if disclosure is
(c) Information concerning the technical specifications of conventional arms may be omitted from a report in order to protect military and commercial secrets.
(3) No person may disclose any classified document or the content thereof concerning the business of the Committee except with the permission of a competent authority or as required in terms of the Promotion of Access to Information Act, 2000 (Act No. 2 of 25 2000).
prohibited in terms of a confidentiality clause in the contract of sale. 20
CHAPTER 111
GENERAL
Offences and penalties
24. (1) A person is guilty of an offence if he or she- 30 (a) trades in conventional arms in contravention of section 13; (b) fails to comply with or contravenes any specification or condition stated in a
permit issued to that person or fails to comply with any condition of an end-user certificate;
(c) furnishes any false information in complying with a request in terms of 35 section 22 or refuses to submit any information required in terms of that section;
(d) contravenes section 23(3); (e) hinders or obstructs any inspector of the Inspectorate in the performance of
cf) knowingly makes any false statement regarding a matter regulated in terms of
(8) pretends to be an official of a competent authority or a person authorised by
(h) refuses or fails to comply with any lawful request or order of a competent 45
(i) purports to transfer a permit; or (j) fails to disclose an interest as required by section 25.
(a) in the case of an offence referred to in subsection (l)(a) and (b), to a fine, or 50 to imprisonment for a period not exceeding 25 years, or to both such fine and imprisonment;
any function in terms of this Act; 40
this Act to any competent authority;
such competent authority;
authority in terms of this Act;
(2) Any person convicted of an offence contemplated in subsection (1) is liable-
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Act No. 41,2002 NATIONAL CONVENTIONAL ARMS CONTROL ACT, 2002
(b) in the case of an offence referred to in subsedgon (l)(c) and (d), to a fine, or to imprisonment for a period not exceeding 20 years, or to both such fine and imprisonment;
(c) in the case of an offence referred to in subsection (l)(e) to (j), to a fine, or to imprisonment for a period not exceeding 10 years, or to both such fine and imprisonment.
(3) A court convicting any person of an offence referred to in subsection (l)(a), (b) or IC) may, in addition to any other penalty which it may impose, order seizure of any goods, or any other article, or any material or substance in respect of which the offence was committed, and the goods, article, material or substance so seized, must be disposed of as the Secretary either generally or in any particular case may order.
Disclosure of interest
25. (1) If any member of the Committee, a subcommittee or the secretariat, or any inspector of the Inspectorate, has a direct or indirect pecuniary or other interest in any matter which could conflict with the proper performance of his or her duties in terms of this Act, he or she must disclose that interest as soon as practicable after the relevant facts came to his or her knowledge.
(2) (a) If a member of the Committee or a subcommittee contemplated in subsection (1)-
(i) is present at a meeting of the Committee or the subcommittee at which a matter contemplated in that subsection is to be considered, the member must disclose the nature of his or her interest to the meeting before the matter is considered; or
(ii) fails to make a disclosure as required by this subsection and is present at a meeting of the Committee or subcommittee, as the case may be, or in any other manner participates in the proceedings, such proceedings in relation to the relevant matter must, as soon as the non-disclosure is discovered, be reviewed and be varied or set aside by the Committee or the subcommittee, as the case may be, without the participation of the member concerned.
(b ) A member of the Committee or a subcommittee who is obliged to make a disclosure in terms of this subsection may not be present during any deliberation, or take part in any decision, in relation to the matter in question.
( c ) Any disclosure made in terms of this subsection must be noted in the minutes of the relevant meeting of the Committee or subcommittee.
(3) A member of the Committee, a subcommittee or the secretariat, or an inspector of the Inspectorate, who has disclosed a conflict of interest in terms of subsection (1) must be relieved of all duties relating to the matter in question and such duties must be performed by another member of the Committee, subcommittee or secretariat or by another inspector of the Inspectorate, as the case may be, who has no such conflict of interest.
Extraterritorial application of Act
26. (1) Any court of law in the Republic may try any citizen or permanent resident of the Republic or any juristic person incorporated or registered in the Republic for an offence contemplated in section 24, despite the fact that the act or omission to which the charge relates was committed outside the Republic.
(2) Any court of law in the Republic may try a foreign citizen for an offence contemplated in section 24 which is committed within the Republic.
Regulations
27. (1) The Minister may make regulations, with the concurrence of the Committee,
(a) the procedure to be followed when applying for any permit in terms of this Acl
(b) the conditions under which a permit may be issued and the disclosure of
regarding-
and the disclosure of information relating thereto;
information relating thereto;
5
10
15
I
20
25
30
35
40
45
50
24 No. 24575 GOVERNMENT GAZETTE, 20 FEBRUARY 2003
Act No. 41,2002 NATIONAL CONVENTIONAL ARMS CONTROL ACT, 2002
(c) matters which must be contained in an end-ubr certificate; (d) the keeping of records, minutes, registers and financial statements by any
person who is the holder of a permit in terms of this Act; (e) the format of reports to be furnished to the Minister, the Committee, the
Cabinet or Parliament in terms of this Act; 5 cf) the procedure to be followed in connection with requests for reasons for
decisions by a competent authority; and (g) any other matter which it may be necessary or expedient to prescribe in order
to achieve the objects of this Act or which may or must be prescribed in terms of this Act. 10
(3) A regulation may prescribe a penalty of a fine or of imprisonment for a period not exceeding five years, or both a fine and such imprisonment, for any contravention thereof or any failure to comply therewith.
(4) Any regulation which is likely to result in State expenditure must be made with the concurrence of the Minister of Finance. 15
Repeal and savings
28. (1) Sections 3(2)(IA), 4C, 4D and 4E of the Armaments Development and
( 2 ) Any permit issued in terms of a law repealed by subsection (1 )- Production Act, 1968 (Act No. 57 of 1968), are hereby repealed.
(a) must be regarded as having been issued in terms of section 14 of this Act; and 20 (b) remains valid until the expiry of that permit or until it is dealt with in terms of
(3) Any application for a permit, which had been submitted before the date of commencement of this Act in terms of a law repealed by subsection (l), must be finalised in terms of that law. 25
(4) Any notice issued by the Minister in terms of any law repealed by subsection (I) , remains in force until repealed or replaced in terms of this Act.
this Act.
Short title and commencement
29. This Act is called the National Conventional A r m s Control Act, 2002, and takes effect on a date determined by the President by proclamation in the Gazette. 30