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Terrorism

Somebody needs to talk to the editors at Oxford University Press. The Concise Oxford English Dictionary (11th edition) defines “terrorism” as ‘The unofficial or unauthorized use of violence and intimidation in the pursuit of political gains.’

Seriously? Why is violence in the pursuit of political aims not terrorism because it is ‘official’ – whatever that might mean? Or when it is ‘authorized’ – whatever that might mean? And who are the officials, or the ones in authority – whatever these concepts might mean? Whose violence is no longer terrorism?

The notion of terrorism, encapsulated in the Preamble to our statute on the topic, the Protection of Constitutional Democracy against Terrorist and Related Activities Act of 2004,1 is (at least, to my thinking) preferable:

…terrorist and related activities, in whichever form, are intended to achieve political and other aims in a violent and otherwise unconstitutional manner, and thereby undermine democratic rights and values and the Constitution.

Terrorism – this unambiguous form of it – is a world problem. There are more than a dozen international conventions, all set up by the United Nations, to combat various forms, media, arenae, and methods of terrorism,2 and to which (or most of which) the Republic is a ratifying party. It is on this basis that Parliament has passed the Act, so our law gives effect to these international Conventions.

In one of the longest definitions, surely, ever to see birth from the legislative pen, a ‘terrorist activity’ is given meaning. We need to understand it before considering the many offences stipulated in the statute.

  • First, it is a deed committed (whether directly or indirectly; and whether in whole or in part) for the purpose of advancing a political, or religious, or ideological, or philosophical motive, objective, cause or undertaking;
  • Second, that motive, objective, cause or undertaking can be either a collective one, or even that of an individual;
  • Third, the deed must be intended (or can reasonably be regarded as being intended) to:
  • threaten the unity and territorial integrity of the Republic; or
  • intimidate the public anywhere (or a segment of that public) with regard to its security; or
  • cause feelings of insecurity with regard to the public security; or
  • induce, cause, or spread feelings (anywhere) of terror, fear or panic in a civilian population; or
  • force, induce, or cause any person or any organization, government, or section of the public, anywhere, to:
    • do anything;
    • not do anything;
    • adopt a certain stand point;
    • abandon a certain stand point,

    again, whether any of this is direct or indirect, and whether wholly or in part.

Then, what about the types of activity? It’s not just planting a bomb, by the way.

It is any act or deed, whether inside or outside the Republic:

  • which involves the use3 of violence by any means or method; or
  • which involves the release4 into any part of the environment of:
    • any dangerous, hazardous, radioactive or harmful substance or organism;
    • any toxic chemical; or
    • any microbial or other biological agent or toxin; or
  • which involves distributing to (or exposing) to any part of the public such substances, chemicals, agents or toxins; or
  • which endangers the life of any person; or
  • which violates the physical integrity or physical freedom of any person; or
  • which causes serious bodily injury to or the death of any person; or
  • which causes serious risk to the health and safety of any segment of the public; or
  • which causes substantial damage to any property, natural resource, the environment, or cultural heritage; or
  • which is designed or intended to cause serious interference or disruption of an essential service, facility or system,5 or the delivery thereof; or
  • which causes major economic loss; or extensive destabilization of an economic system; or devastation of a national economy; or
  • which creates a serious public emergency situation in the Republic; or
  • which creates general insurrection in the Republic.

There are a lot of permutations.6 Just casually looking at, in passing I mean, it seems that the next time students go on the rampage in the way that we have read about lately, there could well be terrorist activities to account for. (Someone should also take note: the penalties are frighteningly heavy.)

The Act deals with other specific offences, in addition to the broad notion of terrorism: hijacking, kidnapping and hoaxes, for example. The Act falls under the authority of the Minister of Police.

A. Terrorist activities

  1. Any person who engages in a terrorist activity is guilty of an offence.7

  2. If you do anything likely to enhance the ability of anyone8 to engage in a terrorist activity, you commit an offence if you know (or reasonably suspect) that what you did was to enhance that ability.9

  3. If you enter, or remain in any country for the benefit of, at the direction of, or in association with any entity you commit an offence if you know or reasonably suspect that it is going to enhance the ability of someone to engage in a terrorist activity.10

  4. If you make yourself available for any entity you commit an offence if you know or reasonably suspect that it is going to enhance the ability of someone to engage in a terrorist activity.11

  5. If you:

    • provide any weapon for use by another person;
    • offer to provide such weapon;
    • solicit or give support to any entity;
    • provide, receive or participate in training or instruction;
    • recruit someone for training or instruction;
    • recruit anyone;
    • collect, or make a document; or
    • possess anything,

    connected with the engagement of a terrorist activity, and you know of (or should have known, or should have suspected) such connection, you are guilty of a criminal offence.12

B. Financing terrorist activities

  1. If you, whether directly or indirectly, and whether wholly or only in part, and by whatever means:13
    • acquire
    • collect
    • use
    • possess
    • own
    • provide
    • make available
    • invite someone else to provide or make available

    anything whatsoever, intending or knowing (or even suspecting) that it is to be used in the commission of a terrorist activity, or associated to a terrorist activity, anywhere, you are guilty of an offence.14

  2. Similarly, if you provide, or make available, or invite anyone to provide or make available, any:
    • economic support; or
    • financial service; or
    • other service,

    intending or knowing (or even suspecting) that it is to be used in the commission of a terrorist activity, or associated to a terrorist activity, anywhere, you are guilty of an offence.15

  3. Should you facilitate any of the above, you commit a criminal offence.16

  4. The same applies if you do any of the above deeds:
    • for the benefit of, or on behalf of, or at the direction of, or under the control of any entity which commits, attempts to commit, or facilitates the commission of a terrorist activity or one associated to a terrorist activity; or17
    • for the benefit of an entity named in Government Notices following identification by the United Nations Security Council.18
  5. Any person who deals with property19 knowing (or even suspecting) that it was acquired, collected, used, possessed, owned or provided to commit, or facilitate the commission of a terrorist activity (or one associated to a terrorist activity) is guilty of an offence.20

  6. Any person who deals with property, knowing (or even suspecting) that it was acquired, collected, used, possessed, owned or provided for the benefit of, or on behalf of, or at the direction of, or under the control of any entity which commits, attempts to commit, or facilitates the commission of a terrorist (activity or one associated to a terrorist activity) is guilty of an offence.21

  7. Any person who deals with property, knowing or even suspecting that it was acquired, collected, used, possessed, owned or provided for the benefit of an entity named in Government Notices following identification by the United Nations Security Council.22

  8. You will also be guilty of a criminal offence if you know (or even suspect) that property is of that nature and you enter into, or become involved in any arrangement which is likely to:
    • facilitate its retention, or control, by an entity named in such Government Notices, or by someone who commits or attempts to commit a terrorist activity, or one associated to a terrorist activity;
    • convert such property;
    • conceal or disguise anything about it;
    • remove it from a jurisdiction;
    • transfer it to another person to hold it for you.23

C. Explosives

It is a crime to put, deliver, discharge or detonate any explosive or other lethal device in or against:

with the purpose of causing death, serious bodily injury, or damage to it, or its destruction.24

D. Hijacking

Fixed platforms

It is a crime to do any of the following in relation to any installation or structure attached to the seabed:25

Aircraft

It is a criminal offence to seize or exercise control of an aircraft by force, threat or intimidation in order to:

Ships29

  1. It is a criminal offence:
    • to seize or exercise control of a ship by force, threat or intimidation;
    • to commit, on board, an act of personal violence which is likely to endanger the safe navigation of the ship;
    • to destroy any ship;
    • to cause damage to it (or any of its cargo) such as to endanger its safe navigation;
    • to place any device or substance (or cause this to happen) on a ship and which is likely to either destroy it or to cause damage to it (or any of its cargo) such as to endanger its safe navigation.30
  2. It is also an offence to destroy maritime navigational facilities (or seriously damage them, or seriously interfere with their operation) if doing so is likely to endanger the safe navigation of any ships.31

  3. If you communicate any information, which you know to be false, under circumstances in which the information might be believed, and you thereby endanger the safe navigation of any ship, you commit a criminal offence.32

  4. If you intentionally injure, or kill anyone in connection with any of the deeds mentioned in paragraphs 3 and 5 of this Section D, you are guilty of an offence.33

E. Hostages

  1. It is a crime to seize or detain someone, and then threaten to kill or injure him, or further his detention, in order to compel someone else to do something, or not to do something.34

F. Internationally protected persons

The following are defined as “Internationally Protected Persons” (IPP):

  1. It is an offence to murder, kidnap, or violently attack an Internationally Protected Person, or attack his liberty.35

  2. It is also a crime to violently attack his official premises, or his private accommodation, or his means of transport, if doing so is likely to endanger his person or his liberty.36

G. Concealment and harbouring

  1. If you give refuge or shelter (i.e. ‘harbour’) or conceal any person whom you know (or ought to have known, or suspected) to be someone who has committed any of the above offences, or is likely to do so, you commit a crime.37

  2. If you have reason to suspect that someone has committed, or intends to commit one of the above offences you must report your suspicion to a police official as soon as possible. It is an offence not to do so.38

  3. If you are aware of the presence of such a person, at any place, you must also report this as soon as possible; and commit a crime if you fail to do so.39

H. Hoaxes

  1. It is a crime to put any substance, thing or device in any place with the intention that someone (wrongly) believes it to be noxious, an explosive or lethal.40

  2. It is also a crime to send such a substance, thing or device from one place to another (whether by post, courier, rail, airfreight, or any means) with the intention that someone (wrongly) believes it to be noxious, an explosive or lethal.41

  3. If you in any way communicate any information which you know (or ought to have known, or suspected) or believe is false, with the intention that someone – anywhere in the world – thinks that a noxious substance or thing, or an explosive or other lethal device is present at some place, you are guilty of an offence.42

I. Threats and conspiracy

  1. It is a crime, specifically in terms of the Act, to:
    • threaten;
    • attempt;
    • conspire with another person; or
    • instigate, aid, abet, induce, command, advise, instruct or procure another person,

    to commit one of the above offences.43

  1. Act 33 of 2004. The Act has not been amended. 

  2. The Conventions are all listed in the Preamble to the Act. 

  3. The Act refers to the “systematic, repeated or arbitrary release …”. 

  4. The Act refers to the “systematic, repeated or arbitrary use …” It could have just put it as I have done. 

  5. These include: information systems; telecommunication systems; banking and financial; government services; public utility; public transport; infrastructure; emergency services such as police, medical and civil defence. 

  6. There are some significant exceptions. Protest and industrial action which does not intend the harm contemplated by the majority of the deeds is excluded. (See Section 1(3).) So is the struggle by peoples for liberation, self-determination or independence. (See Section 1(4). 

  7. Section 2. 

  8. The Act uses the term “entity”, which is defined to mean any person, gang, corporation, fund, etc. 

  9. Section 3(1)(a). The section is unhappily worded; confused is perhaps a better way of putting it. 

  10. Section 3(1)(b). 

  11. Section 3(1)(c). 

  12. Section 3(2). 

  13. This entire qualification (about direct or indirect, partly or wholly, and by whatever means) applies to all offences in this Section “B”. 

  14. Section 4(1)(a) – (f)(i). 

  15. Section 4(1)(g) & (h)(i). 

  16. Section 4(1)(i)(i) 

  17. Section 4(a-i)(ii). 

  18. Section 4(a-i)(iii). There are dozens of such promulgations. See www.un.org/sc/committees/1998/list.shtml for the updated list. See also the Regulations promulgated under Section 25 of this Act. 

  19. This means literally any thing – movable, immovable, corporeal or incorporeal. 

  20. Section 4(2)(a). 

  21. Section 4(2)(b). 

  22. Section 4(2)(c). 

  23. Section 4(3). 

  24. Section 5. 

  25. A ‘Fixed Platform’ in terms of the Act. It must have an economic purpose, or one of exploration or exploitation. 

  26. Section 6. 

  27. The Act (Section 9(c)) also says it is an offence to hold any person on board ‘… to service against his will.’ I regret that I cannot say what this means; but I hazard a guess that the legislature intends to prohibit forcing someone into the service of some purpose against his will. 

  28. Section 9. 

  29. Basically this means anything that floats, but does not include: a fixed platform, or (strangely) a warship, or a ship owned or operated by the State, or a ship which has been withdrawn from service. 

  30. Section 10(a)-(d). 

  31. Section 10(e). 

  32. Section 10(f). 

  33. Section 10(g). 

  34. Section 7. 

  35. Section 8(a). 

  36. Section 8(b). 

  37. Section 11. 

  38. Section 12(1)(a). 

  39. Section 12(1)(b). 

  40. Section 13(1)(a). 

  41. Section 13(1)(b). 

  42. Section 13(2). 

  43. Section 14.