Comment: The return of detention without trial? Some thoughts and comments on the Draft Anti-Terrorism Bill and the Law Commission Report

• Jurisdiction: South Africa
• Published date: 24 May 2019
• Pages: 344-359
• Citation: (2000) 13 SACJ 344
• Author: Michael Cowling
• Date: 24 May 2019

COMMENTS • AANTEKENINGE

The Return of Detention without Trial?

Some Thoughts and Comments on

the Draft Anti-Terrorism Bill and

the Law Commission Report

Report on the Review of Security Legislation (Discussion Paper 92)

MICHAEL COWLING

University of Natal, Pietermaritzburg

Introduction

The Bill of Rights (chapter 2 of The Constitution of the Republic of South

Africa Act 108 of 1996) has as one of its basic objectives, the preservation of

the fundamental right of the individual to liberty. To this end the Constitution

expressly provides that everyone has the right to freedom and security of the

person which includes the right not to be deprived of freedom arbitrarily or

without just cause (s 12(1)(a)); not to be detained without trial (s 12(1)(b))

and not to be tortured in any way (s 12(1)(d)).

The fact that this right is set out in such detail relates, in all probability, to

the past history of Nationalist Party rule where widespread detention without

trial and torture was resorted to on the part of the State against political

opponents. Many of the current members of government were victims of

various third degree tactics and the consequent abuses carried out under the

auspices of detention without trial and various state of emergency provisions.

The hearings of the Truth and Reconciliation Commission bear compelling

testimony to some of these events.

It must then come as something of a surprise to learn that the draft Anti-

Terrorism Bill contained in the South African Law Commission's Report on

the Review of Security Legislation (Discussion Paper 92) July 2000 provides

for detention without trial for purposes of interrogation (clause 16). Needless

to say this is bound to cause something of an outcry given the events of the

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(2000) 13 SACJ 344

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Comments • Aantekeninge

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past as well as the commitment to the protection of fundamental rights

contained in the Bill of Rights (particularly the right to liberty described

above). This is especially because these rights are backed up by the

procedural rights to a fair trial contained in s 35 that set out detailed

safeguards in regard to the operation of the criminal process, in general, and

the right to a fair trial in particular.

However it is submitted that what is required (regarding any assessment of

the necessity and desirability of a detention without trial provision being

enacted into our law) is a cool and objective assessment of the detention

provision (including all safeguards) in order to ascertain whether they can be

justified in terms of the limitations clause (s 36 of the Bill of Rights). This

justification is necessary because the Bill of Rights expressly prohibits

detention without trial (s 12(1)(b)). Of course such assessment must occur

within the context of the extent to which South Africa is confronted by any

sustained and ongoing terrorist threat. What is not needed in this debate is a

series of emotional outbursts focussed on political point-scoring rather than

taking account of factual realities confronting the criminal justice system.

Detention without Trial

At the outset it must be mentioned that although the Report enthusiastically

embraces the core function of reviewing security legislation, the attitude of

the Project Committee (responsible for drafting the Report) to the question

of detention without trial is ambivalent and confusing. The summary of the

Report states that compelling evidence needs to be presented to justify

detention for interrogation of persons suspected of withholding information

relating to terrorist acts. The Committee has not received evidence why

measures of the sort set out under clause 16 are required and why con-

ventional policing methods are inadequate (at xviii). However, the summary

later submits as follows:

`It could perhaps be said that the envisaged provisions would be justified provided

the necessary safeguards are contained in the Bill.' [And yet in the following line it

is suggested that the envisaged measures are] 'incredibly drastic' (ibid).

The reason for this ambivalence becomes apparent in the main body of the

Report which stipulates that the Project Committee has not been told why

measures of the sort set out under clause 16 (ie relating to detention without

trial for purposes of interrogation) are required and why conventional

policing methods are inadequate (at 223). The Committee also refers to the

fact that a number of countries facing terrorist threats (and, as a result of

globalization of crime, most States, to a greater or lesser degree, fall into this

category) rely solely on conventional policing methods to combat terrorism.

Specific reference is made to the USA which is found to face serious terrorists

incidents from time to time (at 224).

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