Safety and Security Minister Charles Nqakula on Friday submitted the Anti-Terrorism Bill for tabling in Parliament, his office said.
The bill was recently approved by Cabinet after extensive research by the South African Law Commission.
The National Assembly’s safety and security committee is expected to process the bill next year when MPs return to Parliament from January 20.
A key feature of the draft legislation is its exclusion of any provisions for detention without trial.
Instead, it provides for ”investigative hearings” to obtain information from a person suspected of being in possession of information on terrorist acts.
Briefing the media in August this year, Supreme Court of Appeal Judge Craig Howie, who was the project leader on the SALC investigation of the measure, said detention without trial was ”patently in conflict with constitutional rights”.
However, there was clearly a need to provide for ”questioning”, and the bill allowed for this.
The provisions for investigative hearings closely resembled the procedure contained in the existing Criminal Procedure Act, and were also based on a recently introduced Canadian procedure.
A brief period of 48 hours detention was possible under the bill, but provision was made for legal representation and bail could be granted. As many other safeguards as possible had been incorporated to ensure that the bill withstood constitutional scrutiny.
Howie said a judge would preside over an investigative hearing, which was essentially ”an information gathering exercise” involving solely the questioning of one person.
In practice, it would entail police applying for such a hearing to question a particular individual they believed had information.
The judge would then decide whether the hearing took place immediately, or set a future date, in which case a bail application could be lodged.
The actual hearing would follow normal forensic court procedure, with a representative of the state and the subject’s legal representative in attendance.
The procedure ”requires answers” from the subject, even incriminating him or herself, but none of this could be used in evidence against the person if he or she was charged.
The hearing ended when the subject was excused by the judge.
An individual could not be detained virtually indefinitely, as in years gone by, while the whole process was also open to appeal and review, Howie said.
The draft bill also provides for preventative measures, in terms of which a person suspected of planning to commit a terrorist act can be brought before a court to enter into an undertaking to refrain from certain activities.
The court may impose conditions to ensure compliance and would allow it to prohibit a person from possessing any weapons or explosives for a specified period.
Provision is also made for the naming of terrorist organisations by the minister, for revocation of proscription by the minister, and for the minister’s decisions to be taken on review by the High Court.
Howie said this would cover the constitutional right to appeal.
The bill gives a specific definition of a ”terrorist act”, whether committed inside or outside the country, and it can be for political, religious or ideological purposes, objectives or causes.
The bill excludes action taken as a result of lawful advocacy, protest, dissent or stoppage of work that does not involve an activity that is intended to result in the conduct or harm referred to in the bill.
It also excludes conventional military action in accordance with customary international law or conventional international law.
It further deals with offences set out in international conventions, which identify certain acts as constituting terrorist acts.
These include hijacking aircraft, endangering the safety of maritime navigation, bombing offences, taking hostages, and offences regarding nuclear matters and facilities.
The bill proposes stiff penalties, including life imprisonment, for some offences, and also makes ”malicious and irresponsible action” resulting in false alarms offences attracting tough penalties. – Sapa