Weapons of Mass Destruction

Just over one hundred years ago, the First World War was underway. Between the ‘Central Powers’ (Germany and Austria–Hungary) and the ‘Triple Entente’ (France, Britain, and Ireland and Russia) the ‘Great War’ was certainly that. One of the largest battles during the war, the Somme offensive, took place between 1 July and 18 November 1916, on both banks of the River Somme in Northern France. It is difficult to comprehend, but it is true, that more than a million men were killed or wounded during that battle alone.1

The four years of the Great War (1914–1918) saw the rapid development and deployment of various forms of chemical weaponry – particularly chlorine, phosgene, tear gas and mustard gas. These were used to demoralise, maim, and kill soldiers – mostly those trapped in the trenches – and did so by blinding them, or burning or severely blistering mucous membranes of the eyes, nose and respiratory tract.2

Well, as it turns out, such weapons of mass destruction were prohibited by international treaty. They were still banned in the 1960’s, when the USA dropped 8 million tons of napalm bombs over Vietnam,3 and sprayed down over 20 million gallons of toxic chemical herbicides, like the notorious Agent Orange.4 It is not relevant here to debate whether the uses were as weapons, or to destroy forests (hiding places) and fields (crops), but the record shows millions of Vietnamese deaths as a result.5

In South Africa, the Non-Proliferation of Weapons of Mass Destruction Act 1993 provides for the management and control of any weapon designed to kill, harm or infect people, animals or plants through the effects of a nuclear explosion or the toxic properties of a chemical warfare agent.6

The Act falls under the authority of the Minister of Trade, Industry and Competition but is, effectively, administered by the South African Council for the Non-Proliferation of Weapons of Mass Destruction. The Council has far reaching powers of enquiry, inspection, the grant of permits, seizure and disposal.

A. Codes of conduct and reports

  1. The Council can issue codes of conduct which must be made known by publication in the Government Gazette.7 It is a crime to contravene or fail to comply with the provisions of a Code.8 9

  2. The Council can direct any person involved10 in controlled goods to furnish certain information in their regard, whether within a specified period or at specified intervals. It is a crime to fail to comply with any such directive.11

B. Boards of inquiry

  1. The Minister can appoint boards of inquiry which may summon any person, and require him to produce documents, books, data and things. It is an offence:
    • to fail to appear at the time and place specified;
    • to fail to produce any such document, book, data or thing, or retain it for examination;
    • to refuse to be interrogated.12

C. Inspectors and questioning

  1. If you refuse or fail to comply with any lawful requirement, request or order of an officer or employee of the Department, or of an inspector or a person authorised by the Council, you commit a crime.13

  2. If you hinder or obstruct an officer or employee of the Department, or an inspector or a person authorised by the Council in the exercise of functions under the Act, you commit an offence.14

  3. The inspector can demand that you produce to him any book, document, data or thing; or order you to appear before him for questioning. It is a crime to fail to comply with any such demand or order.15

  4. It is an offence for the inspector (and any person accompanying him) not to comply with the terms of his authorisation, or any applicable code of conduct.16

  5. It is also an offence for the inspector (or that person accompanying him) himself to handle any equipment (belonging to some other person) which is the subject of the inspection, and it is also an offence for him personally to take samples.17 18

D. False representations

  1. It is a crime to falsely represent that any goods or activities fall outside the scope of the Act.19

  2. If you make any statement regarding a matter with which the Act is concerned, to an officer or employee of the Department of Trade, Industry and Competition, or to an inspector or a person authorised by the Council, which statement is false in any material aspect, you commit an offence.20

  3. If you falsely hold yourself out to be an officer, or employee of the Department, or an inspector or a person authorised by the Council, you commit an offence.21

  4. It is a crime to refuse or fail to answer to the best of your knowledge any question regarding a matter with which the Act is concerned, put to you by an officer or employee of the Department, or an inspector or a person authorised by the Council.22

E. Use and threats of use

  1. It is a criminal offence to use, or threaten to use, a weapon of mass destruction against:
    • a citizen of the Republic or a person ordinarily resident in the Republic, whether that person is in or outside the Republic;
    • any person within the Republic; or
    • any property that is owned, leased or used by any such citizen or resident of the Republic or by any public or private body or agency of the Republic, whether the property is within or outside of the Republic.23
  2. It is also a crime to threaten, attempt, conspire with any person, aid, abet, induce, incite, instigate, instruct or command, counsel or procure another person, to commit an offence.24

F. Controls, prohibitions and permits

The Minister can declare that certain goods which may contribute to the design, development, production, deployment, maintenance or use of weapons of mass destruction be ‘controlled goods’ and can make their manufacture, use, transportation (etc.) prohibited, limited, controlled, subject to a permit signed by the Council, and so forth.25

  1. It is a crime to fail to comply with the provisions of any such notice.26

  2. It is a crime to fail to comply with the conditions of any permit that has been issued.27

  3. If your permit has been revoked, or has lapsed, and you are requested to return it to the Council, it is an offence not to do so.28

  4. If you are in control of any activity with regard to controlled goods, or you have controlled goods in your possession or under your control, you must register with the Council; and, if the Council requires, make a declaration furnishing information as specified. It is a crime to fail to do so.29

  5. If you are required to obtain a permit, or you are obliged to register with the Council, you must at the written request of the Council, and within the period stated in the request:

    • transmit to the Council such samples of the goods as may be specified in the request, for examination, testing or analysis; or
    • furnish to the Council such information as may be so specified with regard to controlled goods or the design, development and manufacture thereof.30

    It is an offence not to do so.

G. Confidential information

Any person who discloses or transmits any information which he obtained in the performance of a function in terms of the Act commits a criminal offence.31 32

  1. Wikipedia – ‘Battle of the Somme’

  2. – ‘What is Mustard Gas?’ 

  3. Napalm is a jelly-like mixture of plastic polystyrene, hydrocarbon benzene and gasoline. It sticks to anything, particularly human skin, and burns at temperatures 10 times the boiling point of water. 

  4. ‘Napalm and Agent Orange.’ 

  5. Ibid

  6. See the definition in section 1 of the Act. 

  7. Section 7 of the Act. 

  8. So far, no such Code has been promulgated. 

  9. Section 26(1)a. 

  10. According to the Act this means design, develop, manufacture, maintain, market, import, export, re-export, transit, supply or store controlled goods in the course of business; or trade in or otherwise handle or dispose of any controlled goods; or in any other way exercise control over controlled goods. See section 14(1). 

  11. Section 14(1) read with section 26(1)b. 

  12. Section 11(4) read with section 26(1)b. 

  13. Section 26(1)h. 

  14. Section 26(1)i. 

  15. Section 12(c) and (e) read with section 26(1)b. 

  16. Section 12(8) read with section 26(1)b. 

  17. What this is intended to mean is not very clear. 

  18. Section 12(1) read with Section 26(1)b. 

  19. Section 26(1)d. 

  20. Section 26(1)e. 

  21. Section 26(2)f. 

  22. Section 26(1)g. 

  23. Section 26(1)j. 

  24. Section 26(1)k. 

  25. Section 13(2)f. 

  26. Section 13(2) and 13(9) read with section 26(1)c. 

  27. Section 26(1)c. 

  28. Section 13(8) read with section 26(1)b. 

  29. Section 13(3) read with section 26(1)c. 

  30. Section 15(1) read with section 26(1)c. 

  31. Except if required by law. See section 21(1)a of the Act. 

  32. Section 21 read with section 26(1)b.