The draft Anti-Terrorism Bill of 2000: The lobster pot of the South African criminal justice system?

• Jurisdiction: South Africa
• Author: Esther Steyn
• Pages: 179-194
• Date: 24 May 2019
• Published date: 24 May 2019
• Citation: (2001) 14 SACJ 179

The draft Anti-Terrorism Bill of 2000:

the lobster pot of the South African

criminal justice system?*

ESTHER STEYN**

1 Introduction

Recently the South African Law Commission published proposals for new

security laws in a Discussion Paper, entitled 'The Review of Security

Legislation'.

1

The proposed legislation

2

is wide-ranging in ambit, and its

provisions will have to be evaluated against the backdrop of existing pre-trial

rights

3

that not only are enshrined in the South African Constitution but also

are in accordance with international standards.

4

The Commission in a

summary to the Paper stated that the impetus for these proposals was to

create legislation that would deal with the crime of terrorism internationally,

on a more holistic basis, and to consolidate in an omnibus Act different

criminal offences that dealt with acts of terrorism.

5

The legislation will be

discussed without dealing with the question of whether there is a real threat

of terrorism that endangers the country. For purposes of the arguments

advanced it will be accepted that a consolidated security Act would be useful,

provided that it conforms to constitutional norms.

It was therefore accepted that on a substantive level the crime of terrorism

should be re-defined to include transnational acts and that on a procedural

level the jurisdiction of the courts should be broadened in order for them to

be able to impose more severe sentences that befit the crime. This is what

I am grateful to Professor I Leeman for his comments on an earlier draft of this paper.

B Iuris, LLB, LLM,

Senior Lecturer, Department of Criminal Justice, University of Cape Town.

1

SA Law Commission Discussion Paper 92—Review of Security Legislation (Terrorism: Section

54 of The Internal Security Act, 1982 (Act 74 of 1982)).

2

Hereinafter referred to as the Bill.

3

See ss 12(1), 35(1) and 35(2) of the South African Constitution of the Republic of South Africa

Act 108 of 1996, hereinafter referred to as the Constitution.

4

See Article 5 of the European Convention for the Protection of Human Rights and

Fundamental Freedoms, Article 7(5) of the American Charter on Human and People's Rights,

Article 9 of the International Covenant on Civil and Political Rights; Article 3 of the Universal

Declaration of Human Rights and Artide 6 of the African Charter of Human and People's

Rights.

5

The Committee at the outset states that the aim of the legislation is to enact a new Act which

conforms to international norms and the Constitution, taking into account South Africa's

circumstances and requirements. See paras 1.8. and 10.3 to 10.5 of the Discussion Paper.

179

(2001) 14 SACJ 179

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180

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SACJ •

(2001) 14 •

SAS

was reasonably anticipated by the legislation in the light of the Commission's

reasons for the proposed Bill, yet the provisions of the Bill reveal that what

the Project Committee

6

did was to create a procedural lobster pot. The crime

of terrorism is defined in such broad terms that almost any serious violent

offence will fall within its ambit and a system is created by virtue of clause 16,

whereby persons will be put in the lobster pot with ease but will find it much

harder to get out of the pot or be able to avoid such detention in the first

place. What the legal draftsman of the Bill did was not to address the

omissions in the existing 'old legislation' but to provide legislation that is

much more drastic. In fact the Bill is unique in its severity. On a procedural

level it not only provides for a broadened substantive crime and an increase

in the punitive measures of the court, it also allows the state to use drastic

'pre-trial' detention procedures. Even if it is accepted that a consolidation of

different offences was needed, it is submitted that the envisaged legislation,

as presently drafted, is excessive in its scope and will fall short of

constitutional norms.

This Bill as drafted, abandons many principles of due process and curtails

the rights of not only alleged offenders, but also potential witnesses of crime.

It is ironic that the Bill which is intended to mete out harsher punishment to

convicted terrorists succeeds in giving rights to alleged 'criminals' whereas

prospective witnesses are unprotected once they become detainees in terms

of this legislation. At the outset it should be said that this Bill contains other

far-reaching provisions apart from clause 16,

7

but it is clause 16 and

6

The Committee responsible for drafting the Bill, hereinafter referred to as the Committee.

Clause 16 reads as follows (without deletions retained in original document):

16. (1) Whenever it appears to a judge of the high court on the ground of information

submitted under oath by a Director of Public Prosecutions that there is reason to believe

that any person possesses or is withholding from a law enforcement officer any

information regarding any offence under this Act—the judge may, at the request of such

Director, issue a warrant for the detention of such person and subject to such conditions

as the judge may determine, which conditions may be amplified or amended by such

judge or any other judge from time to time.

(2)

Notwithstanding anything to the contrary in any law contained, any person detained

by virtue of a warrant, under subsection (1), must as soon as possible be taken to the

place mentioned in the warrant, furnished with the reasons for such detention, and

detained there, for interrogation until a judge orders his or her release if satisfied-(aa) that

the detainee, has satisfactorily replied to all questions under interrogation; or

(bb)

that no lawful purpose will be served by further detention; or the detention

period referred to in subsection (4) has expired.

(3)

(a) Any person detained in terms of a warrant issued under subsection (1), must be

brought before a judge within 48 hours of such detention and again after a further 5 days.

(b)

The judge referred to in paragraph (a) must at each appearance of the

detainee enquire as to the conditions of the detainee's detention and welfare, whether

such detainee has satisfactorily replied to all questions under interrogation, and whether

further detention will serve any lawful purpose: provided that the onus in showing

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