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The experience of custody, detention and interrogation, involving torture or not, was a threatening one. Different detainees responded in different ways. The intentional infliction of severe pain and suffering, whether physical or mental, on a person for the purpose of 1 obtaining from that or another person information or a confession, or 2 punishing him for an act that he or a third person committed or is suspected of having committed, or 3 intimidating him or a third person, or 4 for any reason based on discrimination of any kind.
Pain or suffering that arises only from, inherent in, or incidental to, a lawful sanction does not qualify as torture. The Commission did not distinguish between beating detainees as a form of torture and what appears to have been a routine practice of beating and assault at the point of arrest. This section, however, concentrates mainly on the use of torture to extract information or as a means of recruitment of informers. Other techniques were imposed by force.
They would handcuff his feet together round the ankles and handcuff his hands behind his back and then place him on his stomach with his feet in the air and put a broom stick or quite a strong plank of wood between his ankles and then through his legs coming out the top here and pick him up and hang him between two desks like that.
The result was similar to crucifixion. It pulled all your muscles. It closed up your chest. They would go slack and every time that was done, I would release the bag. There would be movement, there would be head movement, distress. I went unconscious. They even came and told me that my youngest child is dead. The hygienic conditions were inadequate and the cell was drafty and cold. Social workers took her son away for a period of eight days. During this time police played a tape of his crying in order to put pressure on her.
I will write it one day but I could never tell you. I had to accept that I was damaged, a part of my soul was eaten away as if by maggots That torture of political detainees was a relatively new phenomenon during that period is evident from the following statement by Mr Joe Slovo:.
There was still a rule of law. You had a fair trial in their courts. Nobody could be kept in isolation. Up to , I know of no incident of any political prisoner being tortured. It is probable that the techniques apparent in the period were the fruit of the French exercise. Close links with Argentina existed even before this. For example, Alfredo Astiz, a notorious torturer, was one of four torture experts attached to the Argentinian Embassy in Pretoria in During his stay, there were several seminars at which South African security police and the Argentines exchanged ideas regarding methods of interrogation.
According to one MI operative, such training tended to focus on non-aggressive methods of interrogation as the use of torture was seen to result in false confessions or information. This was part of a more extensive restructuring of legal provisions relating to detentions and police structures introduced by the new Minister of Justice, Police and Prisons, Mr BJ Vorster, his new commissioner of police, Lieutenant General Keevy and new head of the Security Branch, Colonel Hendrik van den Bergh.
Col van den Bergh decided that the Security Branch should be reorganised to enable it to deal more efficiently with subversive elements in the Republic. The Minister of Justice, who was fully aware of the threat against the Republic, agreed with Col van den Bergh and undertook to supply the Security Branch with the necessary arms to ward off the onslaught.
Reports exposed the widespread use of beating, electric shock and terror tactics see below. According to the Minister of Justice, ninety-eight whites, thirty-six coloureds, ninety Indians and 11 Africans were detained under the Public Safety Act of From statements received by the Commission, it appears as though detainees were routinely subjected to beating and other forms of assault. Several Pondoland detainees reported the use of electric shock and torture involving forced posture.
The main form of torture remained beatings and general assault, although again instances of electric shock and forced posture were reported. Section 17 authorised any commissioned officer to detain without a warrant any person suspected of political activities and to hold them in solitary confinement, without access to a lawyer, for ninety days. In practice, people were often released after ninety days only to be re-detained on the same day for a further ninety-day period.
Ms Helen Suzman was the only Member of Parliament to vote against the amendment. Between 1 May and 10 January , when it was withdrawn and replaced with a day detention law, it was used to detain 1 people, of whom were charged and convicted. By the end of January , Minister Vorster conceded in Parliament that forty-nine complaints had been received concerning ill treatment and torture, including twenty-eight allegations of assault and twenty of electric shock.
He reported that thirty-two had been investigated and found to be of no substance. Nevertheless, accounts of torture from this period —— across region, rank and organisation —— bear a remarkable consistency.
There were about five or six people who were actually present in the room. They started assaulting me, punched me, kicked me and in the process my face was badly bruised.
My left eardrum had been punctured. It is very, very difficult for me to assess the passage of time in these circumstances.
They then carried me out. His face was swollen severely. His eyes appeared to be coming out of their sockets. He was walking with great difficulty and was supported by a policeman. His legs were rigid. His knees did not bend. His hands were almost like he had severe arthritis. He looked like a Frankenstein monster. What they did was, they took a foolscap sheet of paper, A4 size, they put it on the floor and they asked me to stand on that. That was a period of approximately fifty-eight to sixty hours without sleep.
Teams would also frequently alternate between apparently sympathetic police and those who displayed extreme aggression. Such methods, which left no mark, proved devastatingly effective in extracting confessions. It is important to note, however, that physical violence and electric shock continued to be used as well, particularly against less high-profile African detainees. The Minister of Justice said that it would be re-invoked should the need arise.
The Criminal Procedure Amendment Act was enacted in the same year. This provided for day detention and re-detention thereafter. Detainees could be held in solitary confinement but, unlike the ninety-day provision, interrogation was not specified as part of the detention. Nevertheless, it appears that the day provision was used for interrogation as well. The commissioner of police could apply to a judge to have the detention order renewed.
This clause was a forerunner of the Terrorism Act which authorised indefinite detention without trial on the authority of a policeman of or above the rank of Lieutenant Colonel. The definition of terrorism was very broad. No time limit was specified for detention, which could be continued until detainees had satisfactorily replied to all questions.
The captives vanished from view and were brought to trial in Pretoria after two years of interrogation, intermittent torture and many months of solitary confinement. Section 6 was subsequently used in a series of detentions of suspected ANC members in It appears that a team of security policemen from around the country were involved in these interrogations. Almost all detainees alleged severe torture. While Taylor claimed not to remember the details of these incidents, statements to the Commission and from Amnesty International indicate a consistent pattern: lengthy interrogations accompanied by assault and torture involving forced posture such as being forced to sit in an imaginary chair.
In some instances, electric shocks were alleged to have been administered. Over forty people were detained in connection with this trial. One of the detainees, Mr Joseph Mdluli, died in detention see below.
Six of the accused filed a summons against the Minister of Police for not responding to claims for damage as a result of torture. In his amnesty application, Taylor stated that Nduli and Ndhlovu. They were abducted The detainees were also kept awake for long hours and deprived of sleep. In some instances, despite the presence of perpetrators in court, such witnesses withdrew their statements, alleging that they had been made under duress.
Few judges ruled in favour of detainees. In many cases, however, detainees were eventually released after lengthy spells in detention without having been charged. This foreshadows an extensive pattern of abduction and interrogation in the s. In later years, however, such detainees were frequently killed. Theoretically, the detention was not meant to exceed twelve months.
Proclamation R of 16 July applied the provisions of the Internal Security Amendment Act to the Transvaal, while Proclamation R of 11 August extended its applicability country-wide. This was extended for a further year. Detentions were covered by the following clauses:. For the detention to be extended, the permission of a magistrate was needed. Section 29 was used chiefly for detention of those suspected of links with the underground, and particularly military, structures.
Detainees held under this clause were subjected to torture. In the mid's, the Internal Security Act continued to be used for specific cases of suspected terrorism and for intensive interrogation.
However, detention happened far more widely under the state of emergency provisions. The period of detention could be extended almost indefinitely. Thousands of people, mostly black men, were incarcerated under these provisions during the states of emergency in the mid- to late 's. The wide-ranging powers given to the police, including extensive indemnity provision, and the lack of any censure for excesses, reinforced their understanding that they enjoyed impunity for extensive abuses committed in the interests of state security.
The National Party is prepared to accept responsibility for the policies that it adopted and for the actions taken by its office-bearers in the implementation of those policies. It is, however not prepared to accept responsibility for the criminal actions of a handful of operatives of the security forces of which the Party was not aware and which it never would have condoned.
Thus, for example, in the State v Mogale , the Appellate Division established that the security police had severely assaulted a detainee in order to compel him to confess. Such assault had included punching, kicking, throttling with a medallion chain, electric shock and breaking of two teeth with pliers. Hence, notwithstanding incriminating judgments, security police were allowed to continue torturing detainees unchecked.
Statements before the Commission implicate four former heads of the Security Branch, two of whom subsequently became commissioners of police. Reinforced by deep racism, this approach increasingly characterised police work and led, furthermore, to serious neglect of investigative police work.
The Commission finds further that a considerable number of deaths in detention occurred, either as a direct result of torture or as a consequence of a situation in which the circumstances were such that detainees were induced to commit suicide. The Commission finds that torture as practised by members of the SAP constituted a systematic pattern of abuse which entailed deliberate planning by senior members of the sap, and was a gross human rights violation.
The Commission finds therefore that the following are directly accountable for the use of torture against detainees and indirectly for all unnatural deaths of detainees in police custody: the Ministers of Police and of Law and Order; the Commissioners of Police; Officers Commanding of the Security Branch at national, divisional and local levels.
The Cabinet is found to be indirectly responsible. Evidence of this is contained in numerous amnesty applications as well as section 29 hearings, in particular the hearing on the armed forces. In some cases it was necessary to eliminate activists by killing them. While cross-border assassinations and raids certainly fell outside the scope of international protocols and sometimes law, the security forces perceived them to be legitimate, authorised and thus legal actions.
Raids, for example, although organised at a clandestine level, were openly — and proudly — acknowledged after the operation was completed. Here operations had to be highly covert, ensuring that actions could not be traced back to the security forces.
Victims in almost all of these cases were suspected of having links with underground military structures or with networks that provided support for such structures. The purpose of interrogation was to gather intelligence on issues such as modi operandi , guerrilla infiltration routes and possible planned operations. This information was considered vital, not only to enable counter-measures to be taken, but for the ongoing and effective penetration of such structures by agents or askaris.
Detainees — even those kept in solitary confinement — sometimes managed to smuggle out information about their detention and interrogation. Moreover, in the nature of clandestine work, once a detention was known about, old routines, codes and meeting places would be regarded as compromised and therefore changed. It was for this reason, the Security Branch argued, that it was preferable to abduct rather than officially detain, and to kill the abductee once information had been extracted.
It should also be noted, as is evident in some of the cases below, that confessions and admissions were sometimes obtained only after brutal torture. The possibility that a number of people so targeted had no real link to underground military structures cannot be excluded. Tshwete said that a tough new law being planned to counter terrorism would be effective only if certain constitutional rights were limited. In cases of urban terrorism, he wants suspects to be held for questioning for more than 48 hours and their access to legal representation to be restricted.
Tshwete and Justice Minister Penuell Maduna have given a special drafting team until next month to come up with the legislation. The proposed anti-terrorism law is also expected to give police greater powers for search and seizure. Courts are expected to be given greater discretion to penalise suspects who refuse to co-operate with investigators. At least 63 people have been injured in bomb attacks in the Cape Peninsula in the past few weeks. Tshwete said the bombings were, for now, confined to the Western Cape but could spread to other parts of South Africa.
Police are convinced they have caught a suspect involved in the manufacturing of the pipebombs which have wreaked havoc in the Western Cape.
A senior investigator said police believed one of the men being held in custody in connection with the recent spate of bombs had been involved in making the explosive devices. Take the latest proposal by the Minister of Safety and Security, Steve Tshwete, that the Constitution be changed to make it easier to fight terrorism. Tshwete's motives are honourable, if a little expedient.
The police have manifestly failed to arrest those responsible for the series of bombings which have hit the Western Cape over the past three years. Countless units, super-units and supercops have been created and disbanded, but the core organisation behind the bombers has remained elusive. Tshwete, a politician with a sense of the popular mood, and whose boss, President Thabo Mbeki, demands results, is no doubt feeling the pressure to break this cycle of failure.
He and his fellow security ministers have laudably tried to bring order and a command hierarchy to the many branches of the police and intelligence involved in anti-terrorist investigations. But his conclusion that the Constitution must be altered to diminish the rights of those detained without trial is an attempt to fix that which is not broken to deal with a problem of inadequate detective work that must be solved in other ways. This is clearly not possible within the hour detention-without-trial limit set by the Constitution.
The absurdity of the proposal becomes apparent when the question of exactly what it will take to get a confession is explored. Breaking down someone's defences requires a longer time - perhaps a week, perhaps a month, perhaps, as was the case under the states of emergency in the '80s, six months or more. And even then, breaking someone down will not happen by isolation alone.
There must be menace, the threat of force or the use of force. Lawyers buzzing in and out of police cells will not be useful while this form of detective work is under way, so Tshwete has proposed that the legal access of suspects be limited. The problem with this approach is that it is a slippery slope down which our social values, and our democratic culture, will slide.
For those not interested in maintaining abstract values at the expense of immediate results, there is another compelling argument. The Constitution could be amended - it could even be scrapped - without having the slightest effect on the capture and prosecution of the Cape bombers.
Deficiencies in detective work, in personnel and in the co-ordination of intelligence resources will not benefit from constitutional amendments. Real solutions involving planning, training, co-ordinated action and intelligence are needed.
Perhaps, just as importantly, Tshwete needs to remind himself of Mao Tse-Tung's dictum that underground operators - these terrorists should not be called guerrillas - are like fish. They need the sea, and the sea is the community in which they are harboured, fed and idolised.
How else could it be explained that the apartheid government, employing states of emergency and laws five times as draconian as any proposed by Tshwete, was unable to break the underground movement against apartheid? The fact that these bombers hide among people who do not co-operate with the security forces is the essence of the policing problem.
It is the first, vital nettle that must be grasped if the problem is to be solved. Terrorism will not be overcome by doing away with human rights that were born of the struggle to free South Africa. More so when the terrorists are seeking to do away with such rights in the first place. A new anti-terror law for people suspected of being potential urban terrorists is neither necessary nor desirable. There is no need to pass detention laws reminiscent of the security era.
There are two types of bombers. There are those who belong to some sort of gang or organisation which seeks to make a political or other point by engaging in terrorism. Then there is the loner who, in an entirely unpredictable moment of rage, jealousy, spite, lust or anarchist angst, goes out and sets off a bomb.
Such a person could be you or me in a moment of stress. Any state that claims to have forewarning or foreknowledge of such a bomber is a dishonest state. There is little that can be done about such a bomber, other than to encourage the public to be vigilant.
But the potential bomber attached to a cause or a gang is a different matter. It is likely and, indeed, even expected that the state has an idea of which person attached to what organisations is likely to be engaged in urban terror in the future. But it is precisely these sorts of people who can be convicted - before even engaging in any violent act - in terms of the Prevention of Organised Crime Act. The Act has a number of provisions which effectively criminalise gang membership coupled with merely the threat to commit violent acts.
To my knowledge, no prosecutor has yet invoked these provisions. The provisions are designed for easy conviction of those who could slip through the net for lack of evidence on other charges, or who have threatened to but have not yet committed a serious crime.
As such, the Act is a useful device not yet being utilised against urban terror and gang warfare. What do the suspects wear? With whom do they hang out? Have they spoken loosely about acts of violence or revenge? The wrong answers to these questions could put such suspects in prison. Such an offence holds a penalty of up to six years' imprisonment. All a prosecutor needs to show, therefore, is that the suspect is either a gang member or participates in a gang, and that the suspect has threatened violence by the gang.
Alternatively, that the gang member suspect has threatened retaliation by any means. It includes any established group of three or more persons, which group commits one or more criminal offences, and which has a name, sign or symbol, and whose members have engaged in a pattern of criminal gang activity. At least one offence must have occurred after the law came into force.
The most recent offence must have occurred within three years of the previous offence. The offences must have been committed on separate occasions. If they were committed on the same occasion, they must have been committed by two or more persons who are members of, or belong to, the same criminal gang. To assist the courts in determining whether a particular person is a member of a criminal gang, the Act says the court may have regard to certain factors. These are whether such a person:.
Obviously these provisions are not specifically enacted with potential bombers in mind, but the possible application of the Act to such persons linked to criminal gangs is clear. It may be argued that convicting a person who simply associates him- or her-self with a gang and is heard to threaten violence is constitutionally suspect. Of course, these provisions are open to constitutional challenge on the basis of freedom of association and freedom of expression - but they may yet pass the limitation test.
Such provisions, which at least require a person to be charged and heard in a court of law, are far more preferable to detention laws. Detention for any length of time without trial is far more prone to constitutional challenge. Of course, none of this may have been of any use if and when the truth about Deon Mostert's involvement in the St Elmo's bombing is revealed. But that is another issue entirely.
Security ministers are strongly divided over proposals for special anti-terrorist laws, with the intelligence community backing them but safety and security opposing them because of their constitutional implications.
A cabinet committee convened to consider measures to fight violence in the Western Cape failed to agree on a number of proposals. These are understood to include detention without trial and permission for informers to commit acts of violence in order to preserve their cover.
It implied that the primary problems lay in investigative and intelligence methods. However, it is understood that Nhlanhla was adamant that special legislative measures were required.
An amendment to deal with terror suspects will not be controversial. The fact is that the heart of intelligence work happens after the suspect is detained. Anything the advisers believe will require either a constitutional amendment or a Constitutional Court test will probably not be tabled. Anything below that threshold is fair game. The Justice Minister, Mr Dullah Omar, said that although he was reluctant to tamper with the country's Constitution, there was an urgent need for special security powers.
In the swathe of townships known as the Cape Flats, police stations are at such risk of attack that they are hiring private security firms to help guard their buildings.
One of Cape Town's prime tourist attractions, The Waterfront, has been bombed twice in five months. Police officers, journalists, politicians and even Muslim clerics deemed by extremists to be too moderate have received death threats.
The measures the Government is considering include extending the hour maximum detention for suspects. PAGAD was formed three years ago as a movement against the drug gangs which have turned life in the Cape Flats, an area populated by mixed-race Coloureds, into a nightmare. However, PAGAD has increasingly turned on the police as the main enemy and is believed to be linked to more overtly Islamic groups which have emerged in recent months.
It has joined the international community in unequivocally condemning terrorism in all its forms and manifestations and condemned recent terrorist attacks such as the Nairobi Kenya and Dar-Es-Salaam Tanzania bombings unequivocally. In these international fora the South African Government has reaffirmed its principled position that all acts methods and acts of terrorism are unjustifiable and reiterated its support for the efforts of the international community to eliminate terrorism.
The Government has also confirmed its support for strengthening the international co-operation that will eliminate terrorism and recognises that it is only with the full and committed support of all members of the international community that terrorism can be eradicated.
The UN has adopted an approach of legislating for specific crimes that are normally associated with terrorism and the UN has adopted eleven treaties using this specific format. The OAU and the NAM on the other hand favour a comprehensive approach to terrorism by adopting an overarching convention on terrorism. South Africa also supports the call of NAM for an International Summit Conference under the auspices of the UN to formulate a joint organised response of the international community to combat terrorism in all its forms and manifestations.
Although South Africa favours the approach of the OAU and the NAM it does participate actively in the elaboration of individual conventions under the auspices of the UN as bona fide attempts to combat international terrorism. As an active and respected member of the international community South Africa should join with other states in strengthening the legal framework for combating terrorism.
The following chapters of this Discussion Paper will examine the provisions of the various international conventions in more detail and examine how these obligations can be given effect to in the domestic law.
Terror is the tool used by terrorists to achieve their objective s and can be defined as an overwhelming impulse of fear, or the dread of it, created by terrorists and usually aimed at a specific target group or individual s.
Such violence or the threat thereof, may be directed at symbols of the state, human beings or property. Popular targets in this regard are heads of state and other political office-bearers, diplomats, public officials, air-lines and security key-points. International terrorism usually involves citizens or the territory of more than one country. When violence and terror are employed or directed internally and abroad, against the nationals or the belongings of one or several foreign countries, it is qualified as transnational.
Attacks against foreign diplomats and other representatives of foreign countries and the hijacking of a foreign aircraft are good examples of such acts of terror, which also includes terrorist acts by governments against their own citizens when perpetrated on foreign territory. This resolution identified a series of international conventions that would enhance the international communities fight against terrorism.
All member States are encouraged to ratify these conventions. In addition to the provisions summarised below most of the conventions provide that parties must establish criminal jurisdiction over offenders and if they do not prosecute the offenders, to extradite them.
It entered into force on 29 June The Act criminalizes, in general, the interference with aircraft in flight or endangering flight crew, passengers, aircraft and aviation facilities. The Act treats virtually every unlawful interference with the smooth operation of civil aviation with the utmost seriousness and takes little or no account of the motive for such interference, as can be readily appreciated when it is observed that the Act imposes a minimum sentence of five years imprisonment for any contravention of section 2 1 of the Act regardless of the motives of the perpetrator.
Prohibition and control of carriage of persons and harmful articles in aircraft;. Prohibition and control of persons and harmful articles in restricted areas;.
Prohibition and control of persons and harmful articles in air navigation facilities;. Powers of Minister of Transport to take action in respect of threats to safety to any person on or in any aircraft or at any designated airport, heliport or air navigation facility;. Powers of a commander of an aircraft and certain other persons on board an aircraft;.
Section 12 of the Constitution of the Republic of South Africa guarantees the fundamental rights of everyone, in particular the right of everyone to freedom and security which includes the right -. All the above crimes are, as mentioned already, covered by the South African common law.
Specific offences to give effect to the Convention, are proposed in the draft Bill based on legislation of the United States of America, in which specific crimes were created in respect of assault, murder and kidnapping of internationally protected persons.
Hostage taking for that matter is not a separate crime, but merely a species of kidnapping. It is clear that the Convention reflects a unified determination at international level to eradicate terrorism globally. This Convention binds each State Party thereto, to adopt effective measures within their domestic legislation so as to ensure that acts falling within the scope of the Convention are punishable by punitive measures, that are consistent with the gravity of their nature.
The Convention, in seeking to achieve this directive, places a legal obligation on each State Party to establish as criminal offences within the ambit of their domestic law, the offences set out in article 2 of the Convention, and to make such offences punishable by appropriate penal provisions. An explosive or lethal device is described as a weapon or device designed or having the capacity itself or through release or impact of toxic chemicals, biological agents, or radioactive material to cause death, serious bodily injury or substantial material damage.
The conduct prohibited in article 2 takes the form of materially defined crimes with requisite mens rea in the form of intent by the perpetrator. Provision is also made for liability of participants to such crimes in the form of accomplicity and the doctrine of common purpose as set out in article 2. In this regard the Convention proposes that, legislation that seeks to achieve this objective, should include measures to prohibit the illegal activities of persons, groups and organizations who encourage, instigate, organize, knowingly finance, engage or participate in the perpetration of article 2 offences within or outside the territory of the State Party.
In addition thereto, State Parties are legally obliged to take the necessary measures to establish jurisdiction over these offences, this would of necessity imply relevant and effective legislative measures. In having regard to practical implementation of the provisions of the Convention, the Convention directs State Parties to afford one another mutual legal assistance and co-operation in the investigation, prosecution, extradition, scientific research and development, and the obtaining of evidence, pertaining to offences as set out in article 2.
The offence is committed on board a vessel flying the flag of that State or an aircraft which is registered under the laws of that State at the time the offence is committed; or. The offence is committed by a stateless person who has his or her habitual residence in the territory of that State; or.
The offence is committed in an attempt to compel that State to do or abstain from doing any act; or. The offence is committed on board an aircraft which is operated by the Government of that State.
In terms of the Convention, States Parties undertake to include article 2 offences in any and every subsequent extradition treaty concluded between them. This Convention shall not apply where, the offence is committed within a single State, the alleged offender and the victims are nationals of that State, the alleged offender is found in the territory of that State and no other State has a basis under the provisions of this Convention to exercise jurisdiction, in such cases. Paragraph 1 a and b , read with paragraph 2, 2 of article 2, set out the prescription of the definition of acts relative to the perpetration of terrorism although no unified definition of terrorism is given.
Paragraph 3 a , b and c of article 2 set out separate offences relative to the main offences in paragraph 1. Paragraph 3 a prohibits accomplicity in any offence as set out in paragraph 1. Paragraph 3 b prohibits conduct which would fall within the scope of organizing or directing others to commit offences as set out in paragraph 1.
It appears that paragraph 3 b incorporates a provision relative to indirect perpetration, co-perpetration and concurrent perpetration in the participation of these offences. Paragraph 3 c incorporates the doctrine of common purpose into the ambit of prohibited conduct and prohibits acts of association accompanied with the requisite mens rea, for the purpose of liability for such acts.
The legal prosecutory mechanisms and the humanitarian and human rights consideration of detainees is also taken into consideration. Plastic explosives is a popular weapon used by international terrorists, especially terrorism involving civil aviation. The chemical marking entails the mixing of highly vaporous chemical agents into the explosives making it detectable by detection devices at airports, etc.
Plastic explosives are pliable and could be formed into innocuous looking objects and is otherwise undetectable. These are:. Although the present offence is therefore intended to cover a broad spectrum of classical acts of terrorism, such as bombings and attacks with fire-arms, it is doubted whether section 54 1 sufficient to combat all instances of modern day terrorism. It excludes, for instance, international or transnational terrorism. Presently the required intent must be directed at the Government of the RSA or the constitutional or political dispensation in South Africa.
South African citizens who, for example, murder, injure or kidnap a high profile US politician in view of USA hostilities towards Iraq, will therefore not be convicted of terrorism in a South African court.
The opinion is held that the conduct element of the present definition of terrorism is wide enough to fulfil our obligations in terms of the International Conventions on Terrorism. The persons referred to above should include ordinary natural or juridical persons, as well as heads of States and official representatives or officials of States.
The trend in other countries is to create, apart from general offences, specific offences related to the specific obligations in terms of International Conventions. According to the present provisions of section 54 3 it is required that the intent of the saboteur should be aimed at the public interest or public service. The current provisions of section 54 3 do not require that a saboteur must have the intention to harm the State per se.
Acts of fear aimed at organizations or individuals, such as the placing of a bomb in the residence of a diplomat, will not qualify as an act of sabotage. It is proposed that all State or Government facilities South African and foreign as well as private residences, such as the house of a government representative or diplomat, that are situated in South Africa, be specifically included in the Act. Such a provision should be in line with the Terrorist Bombing Convention and Conventions relating to protection of diplomatic personnel, foreign dignitaries, etc.
These provisions will be briefly discussed infra. Control over firearms is exercised by means of a central firearms register. The Department for Safety and Security intends to review this Act shortly. An Inspector of Explosives and his personnel regularly inspects the use of explosives by the mining and other industries where the use of explosives is necessary.
This Act is presently being reviewed by the Department for Safety and Security. Section 3 further provides that armed organizations or services may only be established in terms of national legislation. This loophole will be closed if section 54 is broadened. This exemption applies to members of certain occupations, who undergo training as authorized under the applicable Acts in terms of which they were appointed, and relates to the exercise by such persons of their official and lawful duties as performed in terms of the Constitution or any other law.
The following persons are, amongst others, exempt from these provisions:. Correctional officials of the Department of Correctional Services and other persons authorized to act in terms of the Correctional Services Act, Act No. Employees of armament manufacturing factories, such as Denel, who manufacture and distribute armaments under licence and in compliance with domestic legislation. Any person who lawfully undergoes training and instruction relating to explosive devices under any law for the protection of persons or property.
The attempt, encouragement, enticement or solicitation to render such services. The supply of security services for the protection of individuals so involved or for the protection of their property. Any action aimed at overthrowing a government, undermining the constitutional order, sovereignty or territorial integrity of a state. Any other action that results in furthering the interests of parties involved in armed conflict, excluding humanitarian aid aimed at alleviating the plight of uninvolved civilians to such conflict.
Section 3 prohibits the unauthorized rendering of foreign military assistance as outlined above. Sections prescribe the administrative formalities and criteria for the approval and granting of authorization of foreign military assistance otherwise prohibited by the Act. Permits are administered by the Secretary for Defence, and the National Conventional Arms Control Committee NCACC has been instituted to act in the interim as an advisory body to provide political oversight with arms trade controls, vested in the collective leadership of several Ministers.
Although the NCACC did not exist at the time when the Act was promulgated, this now forms the most important conventional arms control body in South Africa. The NCACC is committed to comply with international obligations and take humanitarian concerns into account. This Act can be used to combat acts of terrorism if, according to section 37 of the Constitution, "the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or public emergency; and the declaration is necessary to restore peace and order.
This includes the mobilization of the Citizen Force, the Reserve and commandos for service in the prevention or suppression of terrorism section 92 , compulsory service outside the RSA for the prevention or suppression of terrorism section 95 , the safeguarding of the borders of the RSA for the prevention or suppression of terrorism section 99A , commandeering of buildings, vehicles, etc.
An example of the conduct that will be covered by this Act is the terrorist who enters or inspects a military establishment with the aim to commit an act of terror. The concept "disaster" includes " any consequences arising out of terrorism Hate speech may be of such a serious nature that it could encourage persons to act in a violent manner.
Section 8 6 of the same Act also prohibits persons present at a gathering or demonstration to "perform any act or utter any words which are calculated or likely to cause or encourage violence against any person or group of persons".
For this reason the statutory offences of terrorism, and, to a lesser extent, sabotage have rarely been heard by the South African Courts after The Act defines terrorism as the use of violence for political ends, and includes any use of violence for the purpose of putting the public or any section of the public in fear. In the Act, acts of terrorism are generally qualified to mean acts of terrorism connected with the affairs of Northern Ireland, and acts of terrorism of any other description except acts connected solely with the affairs of the UK or any part of the UK other than Northern Ireland.
Provision is made for offences regarding financial assistance for terrorism and powers to forfeit property which might be used in connection with acts of terrorism or for the benefit of a proscribed organization.
Possession of articles for suspected terrorist purposes, unlawful collection of information which could be useful to terrorists in planning or carrying out acts of terrorism, and the withholding of information about terrorism also constitute offences in terms of the Act.
This power has, however, lapsed. Constables may then exercise their powers whether or not they have any grounds for suspecting the presence of articles that could be used for the purpose of terrorism.
A constable may arrest without warrant a person whom he reasonably suspects to be guilty of offences set out e. The police may detain a person in these cases without charge for 48 hours and this could be extended by the Secretary of State for a further five days, making seven days in all.
Provision has been made for periodic reviews by a review officer. Provision has also been made for powers of search and detention in this regard.
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