Explosives Amendment Act [No. 83 of 1997
REPUBLIC OF SOUTH AFRICA/
GOVERNMENT GAZETTE
STAATSKOERANT
VAN DIE REPUBLIEK VAN SUID-AFRIIiA
Registered at the Post Ojice as a Newspaper As ‘n Nuusblad by die Poskantoor Geregistreer
CAPE TOWN, 10 DECEMBER 1997 VOL 390 No. 18499
KAAPSTAD. 10 DESEMBER 1997
OFFICE OF THE PRESIDENT KANTOOR VAN DIE PRESIDENT
I No. 1639. 10 December 1997 No. 1639. 10 Desember 1997
It is hereb} notified that the President has assented Hierby word bekend .gemaak dat die President s) to the following Act which is hereby published for general goedkeuring geheg het aan die onderstaande Wet wat hierby information:— ter algemene inligting gepubliseer word:-
No. 83 of 1997: Explosives Amendment Act, 1997. No. 83 van 1997: Wysigingswet OP Ontplofbare Stowwe. 1997.
2 No. 18499 GOVERNMENT GAZEIT’E. 10 DECEMBER 1997
Act No. 83.1997 EXPLOSNES AMENDMENT ACT, 1997
GENERAL EXPLANATORY NOTE:
[ ] Words in bold type in square brackets indicate omissions from existing enactments.
Words underlined with a solid line indicate insertions in existing enactments.
ACT To amend the Explosives Act, 1956, so as to give effect to the Convention on the Marking of Plastic Explosives for the Purpose of Detection, signed at Montreal on 1 March 1991, and for that purpose to impose a prohibition on certain acts relating to plastic explosives which are not marked with detection agents and to require certain persons to furnish the chief inspector of explosives with information in regard to plastic explosives; and to provide for incidental matters.
(English text signed by the President. ) (Assented to 26 November 1997.)
B E IT ENACTED by the Parliament of the Republic of South Africa, asfollows:— Amendment of section 1 of Act 26 of 1956, as amended by section 1 of Act 35 of 1975. section 1 of Act 5 of 1981 and section 1 of Act 178 of 1993
1. Section 1 of the Explosives Act, 1956 (hereinafter referred to as the principal Act), is hereby amended—
(a) by the insertion after the definition of “blasting material” of the following definition:
“ ‘Convention’ means the Convention on the Marking of Plastic Explosives for the Purpose of Detection, which is set out in Schedule IJ”;
(b) by the insertion after the definition of “danger buiIding” of the following definition:
“ ‘detection agent’ means any dete~tion agent included in the Technical Annex to the Convention;”;
(c) by the insertion after the definition of “manufacture” of the following definition:
“ ‘marked’, in relation to a plastic explosive, means the introduction of a detection agent into the plastic explosive in accordance with the Technical Annex to the Convention;”; and
(d) bv the insertion after the definition of “Minister” of the following definition:
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10
15
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. ‘< ‘Jlastic explosive’ means any explosive in flexible or elasti~ sheet form which— (a) is formulated with one or more high explosives which in their pure
form have a vapour pressure of less than 10-4 Pa ~t a temperature of 25 25° c;
4 ~0. 18499 GOVERNMENT GAZEITE. 10 DECEMBER 1997
Act No. 83, 1997 EXPLOSIVES AMENDMENT ACT. 1997
(b) is formulated with arty binder material; and I (C) is. as a mixture. malleable or flexible at normal room temperature;”.
Insertion of sections 8A and 8B in Act 26 of 1956
2. The following sections are hereby inserted after section 8 of the principal Act:
“Prohibited acts relating to plastic explosives which are not marked 5 with detection agents
8A. (1) AS from the date of’ commencement of the Explosives Amendment Act. 1997, no person shall manufacture, transship. import. keep. store. possess. transfer, sell, supply, transmit or export any plastic explosive which is not marked with a detection agent.
(2) Subject to the other provisions of this Act. the provisions of subsection ( 1) shall not apply in respect of— (a) the keeping, stomge, possession, transfer. selling or supply of any
plastic explosive which is not marked with a detection agent and which was manufactured in, or imported into, the Republic immedi- ately prior to the date of commencement of the Explosives .Amend- ment Act, 1997, by any person for a period not exceeding three years as from the said date;
(b) the transshipment, importation, keeping, storage or possession of any plastic explosive which is not marked with a detection agent. or the keeping, storage, possession. transmission or exportation of any plastic explosive which is not marked with a detection agent and which was manufactured in. or imported into, the Republic immedi- ately prior to the said date, by or on behaIf of an organ of State performing military or police functions for a period not exceeding 15 years as from the said date;
(c) the manufacturing, keeping, storage, possession. transfer. selling or supply of any plastic explosive which is not marked with a detection ~gen[— (i) solely for use in—
(m) the research. development or testing of new or modified explosives:
(bb) the training in the detection of explosives; or (cc) the development or testing of equipment for the detection
of explosives; or (ii) solely for forensic science purposes. and in such quantities and under such conditions as may be prescribed in writing by the chief inspector of explosives appointed under section 2(1); or
(J) the manufacturing, keeping, storage, possession, transfer, selling or supply of any plastic explosive which is not marked with a detection agent and which is intended to be incorporated, and is incorporated, as an integral part of any military device within the Republic for a period not exceeding three years as from the said date.
(3) Any person who contravenes a provision of this section shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding two years, and the plastic explosive in respect of which the contravention has taken place shall be forfeited to the State.
Furnishing chief inspector of explosives with information in regard to
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10
35
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plastic explosives 50
8B. (l) Anyp erson, except the State or any organ of State, who or which has in his, her or its possession or custody or under his, her or its control any 1 plastic explosive on the date of commencement of the Explosive\ Amendment Act. 1997, shall furnish the chief inspector of explosives appointed under section 2(1) in writing within 120 days as from the said 55
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Act No. 83.1997 EXPLOSIVES AMENDMENT ACT. 1997
date with information regarding the quantity of plastic explosive in his. her or its possession or custody or under his, her or its control on the said date, the manufacturer or importer thereof. any marks of identification thereon and whether it is marked with a detection agent or not.
(~) AnY person who fails to comply with a provision of subsection (1) 5 shall be guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding two years. ‘“.
Amendment of section 31 of Act 26 of 1956, as amended by section 1 of Act 79 of 1962, section 12 of Act 46 of 1964 and section 11 of Act 5 of 1981
3. Section31 of the principal Act is hereby amended by the substitution for the words 10 preceding paragraph (a) of the following words:
“[Nothing] Save as is otherwise provided in section 8A, nothing in this Act contained shall apply—”.
Amendment of section 32 of Act 26 of 1956
4. Section 32 of the principal Act is hereby amended by the substitution for subsection 15 (1) of the following subsection:
“(1 ) Subject to the [provision] provisions of subsection (2). the laws mentioned in [the] Schedule ~ are hereby repealed to the extent set out in the third column [of the Schedule] thereof.”.
Insertion of Schedtde 1 to Act in Act 26 of 1956
5. Schedule 1 to this Act is hereby inserted after section 33 of the principal Act. the existing Schedule becoming Schedule 2.
Short title and commencement
6. This Act shall be called the Explosives Amendment Act, 1997. and shall come into operation on a date fixed by the President by proclamation in the Ga:ette. 25
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SCHEDULE 1 (To be inserted as Schedule 1 to Act 26 of 1956)
CONVENTION
on
the Marking of Plastic Explosives for the Purpose of Detection
THE STATES PARTIES TO THIS CONVENTION,
CONSCIOUS of the implications of acts of terrorism for international security;
EXPRESSING deep concern regarding terrorist acts aimed at destruction of aircraft. other means of transportation and other targets:
CONCERNED that plastic explosives have been used for such terrorist acts;
CONSIDERING that the marking of such explosives for the purpose of detection would contribute significantly to the prevention of such unlawful acts;
RECOGNIZING that, for the purpose of deterring such unlawful acts. there is an urgent need for an international instrument obliging States to adopt appropriate measures to ensure that plastic explosives at-e duly marked:
CONSIDERING United Nations Security Council Resolution 635 of 14 June 1989 and United Nations General Assembly Resolution 44/29 of 4 December 1989 urging the International Civil Aviation Organization to intensify its work on devising an international regime for the marking of plastic or sheet explosives for the purpose of detection:
BEARING LN MIND Resolution A27-8 adopted unanimously by the 27th Session of the Assembly of the International Civil Aviation Organization which endorsed with the highest and overriding priority the preparation of a new international instrument regarding the m~king of p]astic or sheet explosives for the purpose of detection;
NOTING with satisfaction the role played by the Council of the International Civil .Aviation Organization in the preparation of the Convention. as well as its willingness to assume functions related to its implementation:
HAVE AGREED AS FOLLOWS:
Article I
For the purposes of this Convention: 1. “Explosives” mean explosive products, commonly known as “’plastic
explosives”, including explosives in flexible or elastic sheet form. as described in the Technical Annex to this Convention.
?-. “-Detection agent” means a substance as-described in the Technical Annex to this Convention which is introduced into an explosive to render it detectable.
3. “Marking” means introducing into an explosive a detection agent in accordance with the Technical Annex to this Convention.
4. “manufacture” means any process, including reprocessing, that produces explosives.
5. ‘“Duly authorized military devices” include. but are not restricted to, shells. bombs. projectiles, mines, missiles. rockets, shaped charges, grenades and perforators manufactured exclusively for military or police purposes accord- ing to the laws and regulations of the State Party concerned.
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Act h’O. 83, 1997 EXPLOSIVES AMENDMENT ACT, 1997
6. “’Producer State” means any State in whose territory explosives are manufactured.
Article II
Each State Party shall take the necessary and effective measures to prohibit and prevent the manufacture in its territory of unmarked explosives.
Article 111
1, Each State Party shall mke the necessary and effective measures to prohibit wrd prevent the movement into or out of its territory of unmarked explosives.
2. The preceding paragraph shall not apply in respect of movements. for purposes not inconsistent with the objectives of this Convention. by authorities of a State Party performing military or police functions, of unmarked explosives under the control of that State Party in accordance with paragraph 1 of Article IV.
Article IV
i, Each State Party shall take the necessary measures to exercise strict and etfective control over the possession and transfer of possession of unmarked explosives which have been manufactured in or brought into its territory prior to the entry into force of this Convention in respect of that State, so as to prevent their diversion or use for purposes inconsistent with the objectives of this Convention.
2. Each State Party shall take the necessary measures to ensure that all stocks of those explosives referred to in paragraph 1 of this Article not held by its authorities performing military or police functions are destroyed or consumed for purposes not inconsistent with the objectives of this Convention, marked or rendered permanently ineffective. within a period of three years from the entry into force of this Convention in respect of that State.
3. Each State Party shall take the necessary measures to ensure that all stocks of those explosives referred to in paragraph 1 of this Article held by its authorities performing military or police functions and that are not incorporated as an integral part of duly authorized military devices are destroyed or consumed for purposes not inconsistent with the objectives of this Convention, marked or rendered permanently ineffective. within a period of fifteen years from the entry into force of this Convention in respect of that State.
4. Each State Party shall take the necessary measures to ensure the destruction. as soon as possible. in its territory of unmarked explosives which may be discovered therein and which are not referred to in the preceding paragraphs of this Article, other than stocks of unmarked explosives held by its authorities performing military or police functions and incorporated as an integral part of duly authorized military devices at the date of the entry into force of this Convention in respect of that State.
5. Each State Party shall take the necessary measures to exercise strict and effective control over the possession and transfer of possession of the explosives referred to in paragraph II of Part 1 of the Technical Annex to this Convention, so as to prevent their diversion or use for purposes inconsistent with the objectives of this Convention.
6. Each State Party shall take the necessary measures to ensure the destruction. as soon as possible, in its territory of unmarked expl~sives manufactured since the coming into force of this Convention in respect of that State that are not incorporated as specified in paragraph 11 d) of Part 1 of the Technical Annex to this Convention, and of unmarked explosives which no longer fall within the scope of any other subparagraphs of the said paragraph II.
Article V
1. There is established by this Convention an International Explosives Technical Commission (hereinafter referred to as “the Commission”) consisting of not less than fifteen nor more than nineteen members appointed by the Council of the International
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Civil Aviation Organization (hereinafter referred to as “the Council”) from among persons nominated by States Parties to this Convention.
2. The members of the Commission shall be experts having direct and substantial experience in matters relating to the manufacture or detection of. or research in, explosives.
3. Members of the Commission shall serve for a period of three years. and shall be eligible for reappointment.
4. Sessions of the Commission shall be convened. at least once ~ year at the Headquarters of the International Civil Aviation Organization, or at such places and times as may be directed or approved by the Council.
5. The Commission shall adopt its rules of procedure. subject to the approval of the Council.
Article VI
1, The Commission shall evaluate technical developments relating to the manufac- ture. marking and detection of explosives.
2. The Commission. through the Council. shall report its findings to the States Parties and international organizations concerned.
3. Whenever necessmy. the Commission shall make recommendations to the Council for amendments to the Technical Annex to this Convention. The Commission shall endeavour to take its decisions on such recommendations by consensus. In the absence of consensus the Commission shall take such decisions by a two-thirds majority vote of its members.
4. The Council may, on the recommendation of the Commission. propose to States Parties amendments to the Technical Annex to this Convention.
Article VII
1. Any State Party may. within ninety days from the date of notification of a proposed amendment to the Technical Annex to this Convention, transmit to the Council its comments. The Council shall communicate these comments to the Commission as soon as possible for its consideration. The Council shall invite any State Party which comments on, or objects to, the proposed amendment to consult the Commission.
2. The Commission shall consider the views of States Parties made pursuant to the preceding paragraph, and report to the Council. The Council, after consideration of the Commission’s report and taking into account the nature of the amendment and the comments of States Parties, including producer States, may propose the amendment to all States Parties for adoption.
3. If a proposed amendment has not been objected to by five or more States Parties by means of written notification to the Council within ninety days from the date of notification of the amendment by the Council, it shall be deemed to have been adopted, and shall enter into force one hundred and eighty days thereafter or after such other period as specified in the proposed amendment for States Parties not having expressly objected thereto.
4. States Parties having expressly objected to the proposed amendment may, subsequently, by means of the deposit of an instrument of acceptance or approval. express their consent to be bound by the provisions of the amendment.
5. If five or more States Parties have objected to the proposed amendment, the Council shall refer it to the Commission for further consideration.
6. If the proposed amendment has not been adopted in accordance with paragraph 3 of this Article, the Council may also convene a conference of all States Parties.
Article VIII
1. States Parties shall, if possible, transmit to the Council information that would assist the Commission in the discharge of its functions under paragraph 1 of Article VI.
2. States Parties shall keep the Council informed of measures they have taken to implement the provisions of this Convention. The Council shall communicate such information to all States Parties and international organizations concerned.
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Article IX
The Council shall, in co-operation with States Parties and international organizations concerned, take appropriate measures to facilitate the implementation of this Conven- tion. including the provision of technical assistance and measures for the exchange of information relating to technical developments in the marking and detection of explosives.
The Technical Convention.
Article X
Annex to this Convention shall form an integral part of this
Article XI
1. Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation shall. at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration. any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.
2. Each State Party may, at the time of signature. ratification, acceptance or approval of this Convention. or accession thereto, declare that it does not consider itself bound by the preceding paragraph. The other States Parties shall not be bound by the preceding paragraph with respect to any State Party having made such a reservation.
3. Any State Party having made a reservation in accordance with the preceding paragraph may at any time withdraw this reservation by notification to the Depositary.
Article XII
Except as provided in Article XI, no reservation may be made to this Convention.
Article XIII
1. This Convention shall be open for signature in Montreal on 1 March 1991 by States participating in the International Conference on Air Law held at Montreal from I z Febmary to 1 March 1991. After 1 March 1991 the Convention shall be open to all States for signature at the Headquarters of the International Civil Aviation Organization in Montreal until it enters into force in accordance with paragraph 3 of this Article. .4ny State which does not sign this Convention may accede to it at any time.
2. This Convention shall be subject to ratification, acceptance. approval or accession by States. Instruments of ratification, acceptance, approval or accession shall be deposited with the International Civil Aviation Organization, which is hereby designated the Depositary. When depositing its instrument of ratification, acceptance, approval or accession. each State shall declare whether or not it is a producer State.
3. This Convention shall enter into force on the sixtieth day following the date of deposit of the thirty-fifth instrument of ratification, acceptance, approval or accession with the Depositary, provided that no fewer than five such States have declared pursuant to paragraph 2 of this Article that they are producer States. Should thirty-five such instruments be deposited prior to the deposit of their instruments by five producer States. this Convention shall enter into force on the sixtieth day following the date of deposit of the instrument of ratification, acceptance, approval or accession of the fifth producer State.
4, For other States. this Convention shall enter into force sixty days following the date of deposit of their instruments of ratification. acceptance, approval or accession.
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5. As soon as this Convention comes into force. it shall be registered by the Depositary pursuant to Article 102 of the Charter of the United Nations and pursuant to Article 83 of the Convention on International Civil Aviation (Chicago. 1944).
Article XIV
The Depositary shall promptly notify all signatories and States Parties of: 1. each signature of this Convention and date thereo~
-1-. each deposit of an instrument of ratification, acceptance. approval or accession and date thereof, giving special reference to whether the State has identified itself as a producer State;
3. the date of entry into force of this Convention; 4. the date of entry into force of any amendment to this Convention or its
Technical Annex; 5. any denunciation made under Article XV: and 6. any declaration made under paragraph 2 of Article XI.
Article XV
1. Any State Party may denounce this Convention by written notification to the Depositary.
2. Denunciation shall take effect one hundred and eighty days following the date on which notification is received by the Depositary.
IN WITNESS WHEREOF the undersigned Plenipotentiaries. being duly authorized thereto by their Governments, have signed this Convention.
DONE at Montreal, this first day of March, one thousand nine hundred and ninety-one. in one originai, drawn up in five authentic texts in the English. French. Russian. Spanish and Arabic languages.
TECHNICAL ANNEX
PART 1: DESCRIPTION OF EXPLOSIVES
I. The explosives referred to in paragraph 1 of Article I of this Convention are those that: a) are formulated with one or more high ex Iosives which in their pure form
?have a vapour pressure of less than 10- Pa at a temperature of 25’ C; b) are formulated with a binder material: and c) are, as a mixture. malleable or flexible at normal room temperature.
H. The following explosives. even though meeting the description of explosives in paragraph I of this Part, shall not be considered to be explosives as long as they continue to be held or used for the purposes specified below. or remain incorporated as there specified. namely those explosives that: a) are manufactured, or held, in limited quantities solely for use in duly
authorized research, development or testing of new or modified explosives;
b) are manufactured, or held, in lim”ited quantities solely for use in duly authorized training in explosives detection and/or development or testing of explosives detection equipment;
c) are manufactured, or held, in limited quantities solely for duly authorized forensic science purposes; or
d) are destined to be and are incorporated as an integral part of duly authorized military devices in the territory of the producer State within three years after the coming into force of this Convention in respect of that State. Such devices produced in this period of three years shall be deemed to be duly authorized military devices within paragraph 4 of Article IV of this Convention.
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11x. In this Pm: “duly authorized” in paragraph II u)*
b) and c) means permitted
according to the laws and regulations of the State Party concerned: andinclude, not restricted to.
“’high explosives” c yclotetrameth ylenetetraniwafine
(~~X)~pentae~thritol tetranitrate
(PETN) and cyclotrimethylenettinitramine (RDX).
P.4RT 2: DETECTION AGENTS
A de~e(.[ion aaent is any one of those substances set out in the following Table.
Detection agent: desctibed in this Table are intended to be used to enhance the
detectability of explosives by vapour detection means. In each case, the mtroductlon ot a detection agent into an explosive
shall be done in such a manner as to achieve
homogeneous distribution in the finished product. The minimum concentration of a detection agent in the finished product at the time of manufacture shall be as shown in the said Table.
Table
“lole~ular weight minimum wnCentra-
Xame ,)f detection molecular formula tion agent
152 IJz~, by rrlaSs
E[hy [Sne :\)’col dinitr~[~ C: W (~o~~:
(EGD>’) 176
0,1% by mass
~,~.Dime[h~l-~.3- CfiH,z(NO~k
~inltrobutane (D~lNB ) 137
0,5~~ by mass C, H, NO:~ara-MOnonitrOtOl u~ne
(p-MNTJ I 37 (1.jr, by mass
c-H-NO:~ ~nho. ~ononirrotolu~n~
(()-\INT~ I
Anv e~plosive which. as a result of its normal fo~ulation. contains any of the
designated detection agents at or above the required minimum concentration level shall be d~emed to be marked.