A comparison of South African and Canadian anti-terrorism legislation

• Jurisdiction: South Africa
• Published date: 19 August 2019
• Citation: (2005) 18 SACJ 127
• Date: 19 August 2019
• Author: Kent Roach
• Pages: 127-150

ARTICLES

A comparison of South African and

Canadian anti-terrorism legislation

KENT ROACH*

A

BSTRACT

ABSTRACTA

South Africa’s Protection of Constitutional Democracy against Terrorist and

Related Activities Act 33 of 2004

is compared with Canada’s Anti-Terrorism

Act, 2001.

The processes that led to the enactment of the two laws and the

packaging and preambles of both laws are examined. The def‌i nitions of ter rorist

activities in both laws are compared, as are the fault elements in various

offences related to ter rorism. South Africa’s extensive use of negligence or

culpa

liability is contrasted with Canada’s use of subjective fault and various

constitutional arguments concerning the necessity for subjective fault for

terrorism are examined. South Africa’s duty to report offence is compared

with the comparable Canadian offence, and investigative hearings and powers

in terrorism cases in both countries are examined with an emphasis on prior

judicial authorization and a presumption of publicity. The process for the

listing of terrorist groups in both countries is also compared. Conclusions are

drawn that, while more limited in scope than the Canadian law, South Africa’s

new anti-terrorism law has a broader def‌i nition of terrorism, lower fault levels,

a broader duty to report offence and less restrained investigative powers.

Introduction

The connection between South African and Canadian public law has

become much closer in the last decade. The mutual interaction between

the Canadian Charter of Rights and Freedoms and the South Afr ican

Constitution is well known. A less well known and perhaps less benign

connection, however, is the connection between South Africa’s new

Protection of Constitutional Democracy against Terrorist and Related

Activities Act 33 of 2004

and Canada’s Anti-Terrorism Act enacted at the

127

* BA LLB (Toronto) LLM (Yale),

Professor of Law and Criminology, University of Toronto.

I thank the Visiting Scholars’ Fund Committee and Professor Jonathan Burchell for making

possible a visit to the University of Cape Town during which time a draft of this paper was

prepared. Special thanks to Jonathan and Wendy Burchell, Christina Murray, Cathy Powell,

PJ Schwikkard and Esther Steyn for warm hospitality and assistance during my stay in Cape

Town. Thanks also to Jonathan Burchell, Cathy Powell, Victor Ramraj, PJ Schwikkard and Don

Stuart for helpful comments on an earlier draft of this paper.

(2005) 18 SACJ 127

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128

SACJ •

(2005) 2

end of 2001 in response to the September 11 terrorist attacks in the United

States of America. Canadian law has inf‌l uenced South Africa’s def‌i nition of

terrorist activity and related crimes. Early drafts of the South African Bill

included investigative hearings and preventive arrests provisions taken

from the Canadian law

1

and much can still be gained by a comparison of the

two laws given the similarities between the two countries’ commitments

to both the protection of rights and compliance with international anti-

terrorism instruments. At the same time, due allowance must be made for

specif‌i c aspects of each country’s history, including apartheid-era abuses

of anti-terrorism laws in South Africa and the existence of a democratic

movement for the secession of Quebec from Canada.

I f‌i rst examine the processes that led to the enactment of the two laws,

including the rhetorical packaging of anti-terrorism legislation in the titles

and preambles of both laws. I provide a detailed examination of the crucial

def‌i nitions of terrorist activity provided in both laws. I then compare

various terrorism offences in both laws with special attention to the fault

levels employed in both countr ies. In that section, I critically examine

South Africa’s extensive use of the objective fault or

culpa

standard of

‘ought reasonably to have known or suspected’, as well as arguments that

would be available under the Canadian Charter of Rights and Freedoms,

and perhaps the South African Constitution, to the effect that such a low

fault requirement is unconstitutional given the special stigma and gravity

of terrorism offences and the need to maintain a distinction between the

fault of negligently and intentionally assisting terrorists.

I next critically examine South Africa’s duty to report offence and argue

that it is much broader than the Canadian duty-to-report requirement

and in some ways even more intrusive than the Canadian investigative

hearings that were eventually dropped from the South African legislation.

I also brief‌l y compare Canadian investigative hearings which have been

upheld by the Supreme Court of Canada under the Canadian Charter

2

with

the process that is available in South Africa to obtain information from

reluctant witnesses with special attention to the principles of publicity

and prior judicial authorization. I next compare the process for listing

terrorist groups in the two laws and suggest that the provision in South

Africa’s new anti-terrorism law provides less explicit restraints and checks

than those found in Canadian law. In conclusion, I argue that while the

South African law is signif‌i cantly narrower in scope than the Canadian law,

it has a broader def‌i nition of terrorist activities and employs objective or

1

See, for example, the draft Bill in South African Law Commission Report (Project 105)

Review of Security Legislation (Terrorism: Section 54 of the Internal Security Act, 1982

(Act No 74 of 1982))

(2002).

2

Application under s 83.28 of the Criminal Code (Re)

Application under s 83.28 of the Criminal Code (Re)

[2004] 2 SCR 248;

Vancouver Sun

(Re)

[2004] 2 SCR 332.

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