Introduction

Between 1994 and the end of 2000 South Africa's legislative capital, Cape Town, was plagued by numerous bombings, drive-by shootings and assassinations. Initially, most of this violence occurred in the context of internecine gang warfare and vigilante action against criminal gangs and suspected drug dealers. However, after mid-1996 the motive for some of the violence changed. It would appear that the violence was no longer solely committed by gangs battling for territory, or by vigilantes in their attempts to eliminate suspected drug dealers. This new violence sought to create a climate of fear and terror among the citizens of Cape Town.

After mid-1998, bomb attacks and assassinations occurred not only in the gang-ravaged areas on Cape Town's impoverished periphery, but also in the city centre and tourist destinations of Cape Town itself. The violence—primarily bombings—increasingly began to target the state in the form of police stations, courts and personnel of the justice system, as well as popular tourist and entertainment areas, restaurants and the Cape Town International Airport.

At the time of writing no group had claimed responsibility for the bombings. Government ministers responsible for security and justice have, however, laid the blame firmly at the door of People Against Gangsterism and Drugs (Pagad), a vigilante group formed in late 1995 as a response to high levels of crime, particular wide-scale drug trafficking in and around Cape Town.1 Within a year of its establishment two factions appeared within the organisation: a moderate Pagad factions focused on fighting crime and drug dealers, and a 'Pagad-Qibla' faction made up of militant populists and Muslim fundamentalists who interpreted the fight against drugs as a jihad or holy war. During the late 1990s the Pagad-Qibla faction successfully took control of the organisation as a whole.2

Operationally the state responded effectively to the abovementioned violence, in stabilising the internal security situation in the Western Cape. Through special intelligence-driven joint police and defence force operations the security forces contributed to a significant reduction in terrorist related incidents by the end of 2000. This chapter evaluates the successes of five distinct operations—Operations Recoil, Saladin, Good Hope, Crackdown and Lancer—launched by the security forces to combat urban terrorism, criminal gangs and other forms of crime in the Western Cape.

In early 2001 the minister of safety and security, the late Steve Tshwete, and the minister of justice and constitutional development, Penuell Maduna, argued that new anti-terrorism legislation was necessary to prevent South Africa becoming a 'safe haven' for international terrorists. While South Africa's parliamentary process inhibits the rapid promulgating of laws it is likely, especially in the aftermath of the terrorist acts in the United States on 11 September 2001, that a draft Anti-Terrorism Bill will become law during the second half of 2002.3 In the interim numerous pieces of legislation are on the South African statute books that can be used to combat terrorism and related criminal behaviour. Both the draft Anti-Terrorism Bill and selected pieces of exiting anti-terror legislation are discussed later in this chapter.

Operational Response

In early 1996 the South African Police Service (SAPS) and the South African National Defence Force (SANDF) jointly responded to the terrorist threat in the greater Cape Town area through the National Operational Co-ordinating Committee (NOCOC) mechanism to execute special counter-terrorism operations.4

The response of the security forces (SAPS/SANDF) can best be discussed against the background of a timeline indicating acts of urban terrorism and the security force action taken to counter them. The timeline clearly shows five distinct operations launched by the security forces: Operations Recoil, Saladin, Good Hope, Crackdown and Lancer (Figure 1).

Figure 1: Timeline: The Operational Response of the State

Operation Recoil

On 16 October 1997, a meeting took place between then-president, Nelson Mandela, and several cabinet ministers, as well as the national commissioner of the SAPS and the chief of the SANDF. The meeting focused its attention on the security and crime situation in the Western Cape, specifically the Cape Flats (an impoverished and crime-ravaged area on Cape Town's periphery).


Operation Recoil was launched in October 1997, to counter growing levels of insecurity and inter-gang warfare in the greater Cape Town area. Pagad attacks for the period January to August 1997 accounted for 111 incidents, whereas gang-to-gang violence accounted for 75.

Operational concept

The operational concept that was decided upon during the joint NOCOC/POCOC Western Cape planning meeting included the following: an intelligence-driven factor; a high-density crime prevention factor; investigating task groups, and co-ordination and visible force levels.

INTELLIGENCE-DRIVEN FACTOR OF OPERATIONAL RECOIL

The operation was intelligence-driven, and comprised the following intelligence focus areas:

crime patterns to determine 'hot spots', and tactical intelligence for high-density5 and crime-prevention operations;



intelligence for the purpose of court-directed investigations; and



intelligence provided by specialised investigation units to be utilised for any of the above purposes.

HIGH-DENSITY CRIME PREVENTION FACTOR FOR OPERATION RECOIL

The high-density crime prevention and visibility operations were conducted by:

a crime prevention task team (crime prevention and visibility);


a visible gang unit (crime prevention);


public order policing (high-density operations); and


the South African army (high-density operations).

INVESTIGATING TASK GROUPS OF OPERATION RECOIL

The investigation of the operation were conducted by a gang and Pagad investigation task group, and specialised investigation units concentrating on areas with gang activities, and conflict between Pagad and gangs.

Co-ordination and visible force levels of Operation Recoil

The co-ordination of Operation Recoil was handled in the following way:

co-ordination of the operation was conducted through the NOCOC and POCOC structures;



intelligence co-ordination was implemented by a Provincial Intelligence Co-ordinating Committee (PICOC) to co-ordinate with the POCOC structure; and



members from NOCOC visited the POCOC for joint planning and evaluation sessions on a regular basis.

The visible force levels required by Operational Recoil led to an integrated operational capacity that was expanded to include more than 1,000 members of the South African National Defence Force, the public order police, Pagad visible task team members, and gang investigation unit members.

The success of Operation Recoil

The concept of Operation Recoil was built on the principle of flooding flashpoint areas with high-density security force deployment by way of mobile visible patrols as well as cordon and search operations, in order to flush out criminals at such flashpoint areas. This strategy also improved the SAPS' ability to synchronise and focus high-density deployment in flashpoint areas, as determined by weekly crime pattern analyses submitted by crime information managers at SAPS station and area levels, as well as strategic crime tendency analyses conducted by the intelligence co-ordinate structures.

From October 1997 to January 1998, the visible high-density contingent of Operation Recoil netted a total of 7,437 arrests, inclusive of certain serious crime categories.

Operation Saladin

By early January 1998, it seemed that the specific focus of Pagad had changed and that pipe bomb attacks and drive-by shootings aimed at the police, drug dealers and Muslim businessmen were on the increase. The response of the state necessitated a more intelligence-driven operation: Operation Saladin, which was formed within Operation Recoil, and was aimed at detecting and monitoring the perpetrators of acts of urban terrorism in both gangs and Pagad.

Operation Saladin was activated on 12 January 1998, to ensure a decrease in incidents of urban terrorism in the Western Cape. The operation involved both operational and intelligence members from the SAPS, SANDF and NIA (National Intelligence Agency).

Operation concept

Operation Saladin consisted of a detection and monitoring element made up mainly of SAPS intelligence field workers and SANDF observation teams. The aim was to monitor suspects and, once a movement indicating a possible attack was detected, to inform the Joint Operational Centre (JOC) Cape Town, which would in turn manoeuvre the deployed forces available in the area concerned. A quick reaction force would also be directed to intercept suspected potential perpetrators before they reached their target or, if that was not possible, to then intercept the perpetrators on the return from their target. A further element of the operation entailed the deployment of high-density forces of Operational Recoil in the proximity of the intended target, to act as an additional deterrent to would-be perpetrators. Central to the whole concept was the JOC. By centralising all the factual information at the JOC, senior officers in the JOC were able to manoeuvre available forces to apprehend would-be perpetrators at short notice (Figure 2).

Figure 2: Operational Concept: Operation Saladin

Objectives

The objectives of Operation Saladin were:

to detect and monitor perpetrators of acts of urban terrorism in both gangs and Pagad;



to provide early warning, on-the-spot operational intelligence, visible policing, and to assist with POCOC operations;



to frustrate the access of perpetrators of urban terrorism to their intended targets; and



to ensure the effective interception of perpetrators of acts of terrorism both before and after attacks.

The success of Operation Saladin

The successes of Operation Saladin were that while it acted as a deterrent to prevent acts of urban terrorism and gang-related violence, it also led to the arrest of people involved in acts of terrorism.

However, during December 1998 and January 1999, the nature of the threat of urban terrorism changed in emphasis and target. The new hazard was accompanied by threats from Pagad spokespersons against members of both the security and intelligence forces. The increasing selectivity of the perpetrators and urban terrorism became evident in a number of attacks aimed specifically at the security forces and at business.

The shift in emphasis by perpetrators of urban terrorism to target both the security forces and the public at large was met with a change in emphasis by the security forces. The rapid response by the security forces to this new threat resulted in a modification of the operational concept, and was achieved by combining operations Recoil and Saladin into one operation: Operation Good Hope.

Operation Good Hope

The attacks during December 1998 and January 1999 aimed at the SAPS and also at civilians in the Western Cape resulted in a change of strategy to counter urban terrorism. Operation Good Hope was launched in January 1999.

Operational concept—an integrated approach

Operation Good Hope required an immediate increase in security force levels that were extended to include more than 1,200 members, inclusive of SAPS/SANDF members, but excluding the local station police in Cape Town.

The new operational concept that was decided upon during the joint NOCOC/POCOC Western Cape planning session on 20 January 1999 was planned to be: intelligence-driven in specifically focused areas; investigative; protective of specific targets; in liaison with communities, and co-ordinated by NOCOC/POCOC Western Cape (Figure 3).

Figure 3: Operational Concept: Operation Good Hope

Intelligence-driven aspect of Operation Good Hope

The intelligence-driven aspect of the operation focused on both tactical intelligence gathering, and dedicated court-directed intelligence gathering. The operation was executed by focusing on establishing operations regarding urban terrorism, tactical intervention regarding urban terrorism and crowd management, and high-risk operations regarding urban terrorism.

Investigate aspect of Operation Good Hope

Investigations focused on:

urban terrorism (pipe bombs, drive-by shootings);


actions resulting from crowd management; and


other cases regarding identified suspects.

Protection and liaison-related aspects of Operation Good Hope

Protection tasks for political and other targets (investigators, politicians and so on) were co-ordinated by the national and provincial protection services. Community liaison stemming from information gatherers within each community would initially be supported by the facilities provided by existing intelligence-gathering structures.

Success of Operation Good Hope

It is clear from the operational concept that the new strategy was focused on tactical intelligence gathering and dedicated court-directed intelligence gathering.

This strategy resulted in a major decline in acts of urban terrorism in the Western Cape and the arrest of individuals involved in such acts. During the period January 1999 to January 2000, the forces involved in Operation Good Hope executed several operations (Table 1).

Table 1: Success achieved by Operation Good Hope

Arrests for various crimes*	4,014
Firearms recovered	489
Vehicles recovered	327
Ammunition recovered	5,803

*Operation Good Hope was an operation focused on urban terrorism, not 'crime-prevention' per se, which explains the lower figure of arrests made.

There is a remarkable decline in acts of urban terrorism, as well as gang-related incidents, comparing 1998 with 1999, and with 2000, and also during an increase in specifically gang-related violence. In 2000, there were 437 incidents of gang violence in which 160 people were arrested. Pagad-related incidents were the lowest during 2000, with 22 incidents and 15 arrests. It is thus clear that the state's response to curb urban terrorism was successful.

The biggest problem experienced during the start of Operation Good Hope were the co-ordination of tactical intelligence between the role players, as well as those of the investigation units. Although the strategic concept behind the operation depended on intelligence-driven operations, the initial drive for Operation Good Hope was based on intelligence generated by the operational personnel. As the operation proceeded, the intelligence flow also improved, resulting in positive arrests in connection with urban terrorism and gang-related crime.

Operation Crackdown

In his speech at the opening of parliament in early 1999, President Thabo Mbeki stated that ‘multi-disciplinary' interventions would be introduced in areas of high crime concentrations, including all crimes of violence. All POCOC's were thereby asked to execute integrated high-density, intelligence-driven operations in the identified crime-combating zones, from April 2000 to April 2001, in a operation known as Operation Crackdown.

Operational concept

The concept comprised two main strategies. These were the serious and violent crime stabilisation or geographical approach, and the organised-crime strategy, both of which would be supported by multi-disciplinary interventions in the cases of high crime areas.

Serious and violent crime/geographical approach: a geographical approach was followed, concentrating on the geographical 'hot spots', clustered into crime combating zones.



Organised crime approach: a process was implemented to identify syndicates having the highest impact on organised crime.



Multi-disciplinary interventions: this approach ensured that the social sector concentrated its socio-economic development and social crime prevention efforts in the same areas as the security forces.

The Crime Combating Task Group consisted of a:

stability component (public order police, crime prevention, air wing, special task force);



intelligence component (crime intelligence with the support of other intelligence agencies);



investigation component (detective services in co-operation with other agencies such as the Scorpions);



crime prevention component;



communication component (SAPS Communication Services in co-operation with other role players); and



legal component (SAPS legal officers).

The operations responsible for Task Group components included intelligence, investigations, stability reaction, crime-prevention communication, normal policing, monitoring and evaluation. The entire operation was co-ordinated by the NOCOC.

Success of Operation Crackdown

During the first three months of Operation Crackdown, from 1 April 2000 to 23 July 2000, noticeable successes were achieved in the eastern and western metropolitan areas of the Western Cape (Table 2).

Table 2: Successes of Operation Crackdown in the Western Cape

Vehicles recovered	621
Revolvers recovered	365
AK-47 assault rifles recovered	2
R1/R4/R5s recovered	3
Shotguns recovered	11
Ammunition recovered	2,928

The Task Team had to concentrate on taxi and bus violence in the Western Cape, during March to April 2000. Changing the mission from concentrating on gangs and Pagad violence, to taxi and bus violence, was easy. This is one of the advantages the Crime Combating Task Team has in addressing and stabilising any type of violent crime with terrorism-type modus operandi.

Operation Lancer

On 15 September 2001, after the 11 September 2001 terrorist attacks in the United States, Operation Lancer was launched in the Western Cape as a precaution for any possible terrorists attacks on United States interest in South Africa. The operation was then expand to covered the whole of South Africa. Operation Lancer managed to reduce Pagad related incidents to only nine during 2001.

The operational concept was based on:

intelligence gathering aimed at successfully prosecution in court;


investigation; and


prevention of attack by Pagad and its supporters on United States interests.

Common sense strategy to prevent urban terrorism

The planning of anti-terrorism actions can be executed in two phases: pre acts-of-terrorism reduction, and post acts-of-terrorism recovery.

Reduction: pre acts-of-terrorism phase

The pre acts-of-terrorism phase includes prevention, mitigation and pre-preparedness. The most important element of the pre acts-of-terrorism phase is prevention. Prevention can be achieved if intelligence is available. Prevention is 'targeted' if intelligence has identified the time and place of the planned attack. The steps of targeted prevention are straightforward: isolate the target from the terrorists (or the terrorists from the target), or sabotage their plans. Then arrest the terrorists as soon as all the possibilities of determining their plans, associates and supplies have been exploited.

The element of mitigation is to ensure a lessening of resources: the terrorists must be denied resources and information—for training, weapons and explosives. This can be done by executing high-density and targeted operations aimed at weapon caches. Terrorists must also be denied the support they need, such as safe houses, money and materials. Finally, in order to prepared, personnel must be trained and willing to use immense investigative resources to investigate any terrorist activities targeting South Africans. It is also vital that investigations are prosecution-focused.

Recovery: post act-of-terrorism phase

The post acts-of-terrorism phase includes contingency planning for assassinations, shooting incidents, bomb explosions, hostage situations, sabotage and kidnapping. 'Pre acts-of-terrorism' refers to those actions executed to prevent terrorism, to mitigate it and to prepare for acts of terrorism. 'Post acts-of-terrorism' refers to those actions executed after acts of terrorism have occurred. A strategy for anti-terrorism acts can visually be explained as follows (Figure 4).

Figure 4: An Anti-Terrorism Strategy

The strategy currently used in South Africa has been operationalised in an anti-terrorism operational concept based on co-ordination and co-operation between the following entities: intelligence, operations, investigations, protection and communication. The operational concept is co-ordinated within the Joint Operational and Intelligence Structure (Figure 5).

Figure 5: Anti-Terrorism Operational Concept

Proposed anti-terrorism operational concept

The most important principle of an anti-terrorism operational concept is to co-ordinate an operation with an integrated approach. This can be done within the National Operational Co-ordinating Mechanism, including all the disciplines of the SAPS, SANDF, NIA and the South African Secret Service (SASS), as well as any other government department that needs to be involved. The intelligence community is responsible for gathering tactical and co-ordinated, court-directed intelligence.

Operations based on intelligence are executed to stabilise a focus area, conduct tactical intervention regarding urban terrorism and crowd management, and effectively control high-risk operations. Investigations are conducted with the specific intention of ensuring successful prosecutions.

Legislative Response

In October 1998 the South African Law Commission, a statutory law reform agency, appointed a project committee on security legislation.6 The project committee is conducting a wide-ranging review of South African security legislation, with a focus on:

reviewing terrorism and sabotage legislation so that the country's obligations in respect of international terrorism are fulfilled;



the protection of classified information in the possession of the state;



granting the state greater powers in intercepting and monitoring communications;



economic espionage that poses a threat to national security;



the protection of property and personnel of foreign governments and international organisations in South Africa; and



hostage taking that seeks to compel any government to do, or abstain from doing, any act.

Anti-Terrorism Bill

In mid-2000, the Law Commission released a draft Anti-Terrorism Bill. The draft bill seeks to integrate the country's numerous pieces of anti-terrorism legislation into one comprehensive law that addresses the issue of terrorism on a broad basis.7 The law commission motivates its support for one all inclusive anti-terrorism statute on the ground that there is a world-wide trend to create specific anti-terrorism legislation based on international instruments relating to terrorism.

Terrorism

The draft Anti-Terrorism Bill (hereinafter called 'the bill') proposes that anyone who commits a 'terrorist act' (including outside of South Africa) commits an offence and will be liable, upon conviction, to life imprisonment. The bill's definition of terrorist act is broad and includes any act which does or may endanger the life, physical integrity or freedom of any person, or causes or may cause damage to property, and is calculated to:

intimidate, coerce or induce any government, persons or the general public;



disrupt any public service, the delivery of any essential service to the public or to create a public emergency, or



create unrest or general insurrection in any state.

The bill seeks to criminalise the actions of those who provide material support in respect of terrorist activities. For example, anyone who provides material, logistical or organisational support, knowing or intending that such support will be used in the commission of an offence in terms of the bill, is deemed to have committed a criminal offence. The same would apply to anyone who participates in the activities of a terrorist organisation. On conviction of such an offence, a penalty of up to 10 years imprisonment, without the option of a fine, is proposed. Moreover, anyone who conceals a person knowing that that person intends to commit or has committed an offence in terms of the bill, also commits an offence. The proposed penalty for concealing such a person is the penalty for the offence that that person intended to commit or has committed.

The bill proposes that any person who is a member of a 'terrorist organisation' commits an offence through such membership and would be liable, on conviction, to imprisonment for up to five years without the option of a fine. The bill defines a terrorist organisation broadly as 'an organisation which has carried out, is carrying out or plans carrying out terrorist acts'. To secure a conviction under this provision the state would not have to prove that an accused knew that he was a member of a terrorist organisation. The state would merely have to prove membership of a terrorist organisation.8 The concern has been raised that the creation of such a membership offence could result in the prosecution of a member of a particular organisation even though such a person is unaware that the organisation is regarded as a terrorist organisation.9

Specific offences

The bill proposes that aircraft hijacking be regarded as a specific offence punishable, on conviction, by mandatory life imprisonment. The same penalty is also proposed for anyone convicted of taking someone hostage and threatening to kill, injure or continue to detain the hostage in order to compel a state, international governmental organisation or person to do or abstain from doing any act. The offence of endangering the safety of maritime navigation is also provided for in the bill, punishable by a fine or imprisonment of up to 20 years, or life imprisonment if somebody is killed as a result of the criminal conduct.

The bill provides for a number of offences in respect of internationally protected persons. That is, persons who enjoy immunities and privileges in terms of the Diplomatic Immunities and Privileges Act of 1989. The offences deal with attacks upon, and the murder and kidnapping of, internationally protected persons, and damaging or trespassing upon the property of internationally protected persons.

Specific offences in respect of nuclear terrorism are catered for in the bill. Anyone who unlawfully and intentionally possesses or uses radioactive material, or damages a nuclear facility with the intent to cause death or serious bodily injury or to cause substantial damage to property or the environment, commits an offence and is liable on conviction to life imprisonment. The same penalty is also proposed for accomplices to such offences.

Detention

The bill provides that a judge may issue a warrant of detention when, on the ground of information submitted under oath by a director of public prosecutions, 'there is reason to believe that any person possesses or is withholding from a law enforcement officer any information regarding any offence' contained in the bill. The bill proposes that a person be detained for interrogation until a judge orders his release, if satisfied that the detainee has satisfactorily replied to all questions under interrogation or that no lawful purpose is served by further detention. The detention period may, however, not be longer than 14 days.

Aware of the country's history of abuse of detention laws, the drafters of the anti-terrorism bill included various safeguards for detained persons in the bill. Thus, detainees have the right to choose a legal representative who is entitled to be present during the interrogation process, and to be visited by their medical practitioners. Any detained person must be brought before a judge within 48 hours of being detained and again after a further five days.

Moreover, the need for detention or continued detention must be motivated in relation to one or other of the following purposes:

to compare fingerprints, do forensic tests and verify answers provided by the detainee;



to explore new avenues of interrogation or to determine accomplices;



to correlate information provided by the person in custody with relevant information provided by other persons in custody;



to find and consult other witnesses identified through interrogation;



to hold an identification parade;



to communicate with other police services and agencies, or



any other purpose relating to the investigation of the case approved by the judge.

Provide information

The bill proposes to place a duty on anyone who knowingly possesses any information, which may be essential to investigate any terrorist act, to provide such information to a law enforcement officer or public prosecutor. Intentionally withholding such information constitutes an offence leading on conviction to imprisonment for up to five years without the option of a fine. According to Amnesty International, the implementation of this provision could result in abusive prosecutions, given the broad definition of what constitutes a terrorist act. Moreover, the provision may be in breach of the right not to incriminate oneself, which is enshrined in international standards and the South African constitution.10

Special powers

A police officer of at least the rank of director may authorise that special powers are given to all uniformed police officers within his area of authority, provided there are reasonable grounds to do so to prevent a terrorist act. Uniformed officers may then stop and search any vehicle or person for articles that could be used for the commission, preparation or instigation of any terrorist act. Moreover, a police officer may exercise such powers whether or not he has any grounds for suspecting the presence of such articles.

Courts' jurisdiction

It is proposed that South African courts have wide jurisdiction in respect of offences created by the bill. For example, South African courts will have jurisdiction if:

the perpetrator of the criminal act is arrested in South Africa, in its territorial waters or on board a ship flying the flag of South Africa, or an aircraft registered in South Africa;



the criminal act has been committed in the territory of South Africa and the perpetrator of the criminal act is arrested in South Africa;



the criminal act is committed outside of South Africa but the act is punishable in terms of South Africa's domestic law or South Africa's obligation under international law;



the criminal act is committed against a South African government facility abroad;



the criminal act is committed by a stateless person or refugee who has his habitual residence in South Africa, or



the criminal act is committed against the security of South Africa.

Security legislation in South Africa

The South African statute books contain numerous laws that can be used to combat terrorism and related criminal activities. Available to the state are laws that:

protect the country's internal security (much of it remnants of legislation enacted before 1994);



permit the state to restrict gatherings and demonstrations;



enhance the state's power to collect information on suspected terrorist organisations, and



target terrorism's foot soldiers and sources of money: criminal gangs and organised criminal groups respectively.

Emergency situations

State of Emergency Act of 1997

The act provides for the declaration of a state of emergency in South Africa. According to the constitution, a state of emergency may be declared only when 'the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency, and the declaration is necessary to restore peace and order'.11

The act permits the president, by proclamation in the Government Gazette, to declare a state of emergency for the whole country, or parts of the country. During a state of emergency, the president may make such regulations as are necessary or expedient to restore peace and order. Regulations governing the detention of persons must provide for international humanitarian organisations to have access to persons detained under such regulations. A declaration of a state of emergency may be effective for no more than 21 days, unless the National Assembly resolves to extend the declaration. The Assembly may extend a declaration of a state of emergency for no more than three months at a time.12

Defence Act of 1957

The act contains various provisions relating to the combating of terrorism.13 These include the mobilisation of the Citizen Force, the Reserve and the commandos for:

service in the prevention or suppression of terrorism;



compulsory service outside South Africa for the prevention or suppression of terrorism;



the safeguarding of the borders of South Africa for the prevention or suppression of terrorism;



the commandeering of, amongst other things, buildings, vehicles, aircraft and equipment for the prevention or suppression of terrorism, and



assuming control over transport systems for the prevention or suppression of terrorism.

During operations for the prevention or suppression of terrorism the act empowers the president to enforce a censorship over postal, telephonic or radio communication, and over printed matter, photographs and drawings.

Terrorism, sabotage and intimidation

Internal Security Act of 1982

In terms of the act, a person is guilty of the offence of terrorism if he, inter alia, commits (or threatens to commit) an act of violence; or incites aids, advises or encourages any other person to commit an act of violence with the intent to:

overthrow or endanger the state authority in South Africa;



achieve, bring about or promote any constitutional, political, industrial, social or economic aim or change in the country, or



induce the government to do or to abstain from doing any act or to adopt or abandon any particular standpoint.

The punishment for terrorism is the same as that which may be imposed for treason (that is, life imprisonment).

A person is guilty of the offence of sabotage if he, inter alia, commits (or attempts to commit) any act; or conspires with other persons to commit an act; or incites, aids, or advises other persons to commit acts with the intent to:

endanger the safety, health or interests of the public anywhere in South Africa;



destroy, pollute, or contaminate any water supply intended for public use;



interrupt, impede or endanger the manufacture, storage, distribution or supply of fuel, power, water, or of medical, health, educational, police, fire-fighting, ambulance, postal, radio or television services, or any other public service;



cripple or interrupt any industry generally, or the production, supply or distribution of commodities or foodstuffs, or



impede or endanger the free movement of any traffic on land, at sea or in the air.

Upon conviction of sabotage, a person may be sentenced to imprisonment for up to 20 years.

The Internal Security Act makes it a criminal offence to harbour, conceal or fail to report to the police any person who has committed, or is intending to commit, acts of terrorism or sabotage. The act empowers the minister for safety and security to prohibit any gathering if he deems it necessary in the interests of the security of the state, or for the maintenance of the public peace, or to prevent hostilities between different population groups in the country.

Intimidation Act of 1982

The act is targeted at persons who intend to frighten, demoralise, or incite the public (or a particular section of the population) to do or abstain from doing any act. Any person who does any of these things and commits (or threatens to commit) an act of violence, is guilty of an offence and can on conviction be fined to an amount at the discretion of the court and/or to imprisonment for a period of up to 25 years. Persons who through their behaviour, speech or published writings seek to create fear in other people for their own safety, the safety of their property, or the security of their livelihood are guilty of an offence. Such persons can be fined up to R40 000 and/or imprisoned for up to 10 years.

Assisting and training terrorists

Criminal Law Second Amendment Act of 1992

The act prohibits any person from:

taking part in the control, administration or management of any organisation;


organising, training, equipping or arming the members or supporters of any organisation, or


undergoing training in any organisation,

if the members or supporters of that organisation are organised, trained or armed in order to usurp some or all of the functions of the South African Police Service (SAPS) or the South African National Defence Force (SANDF). A contravention of this provision can lead to a fine or to imprisonment for a period of up to ten years.

A 1998 amendment to the Criminal Law Second Amendment Act prohibits a variety of acts connected with military, paramilitary or other similar operations.14 A contravention of this prohibition can lead to a fine as the court may deem fit to impose, or to imprisonment for a period of up to five years. It is prohibited for any person to:

train anyone, or undergo any training, to conduct any military or paramilitary operation;



train anyone, or undergo any training, to construct, manufacture or use any weapon, ammunition, or explosive for the purpose of: endangering life or causing serious damage to property, promoting any political objective, or for military or paramilitary purposes, or



employ two or more persons trained, or intended to be trained, with a weapon, ammunition or explosive with the purpose of: endangering life or causing serious damage to property, promoting any political objective, or for military or paramilitary purposes.

The act defines 'political objective' as the bringing about of any constitutional, political, social, economic or industrial change in the country. Moreover, it includes the inducement of any person, including the national, provincial or local sphere of government, to do or abstain from doing any act, or to support or to oppose any person or action.

Regulation of Foreign Military Assistance Act of 1998

The act regulates the rendering of foreign military assistance by South African persons—both natural and juristic—including citizens, permanent residents and foreign citizens from within the borders of South Africa. The act prohibits anyone from recruiting, using or training persons for, or financing or engaging in, mercenary activity. Mercenary activity is defined as 'direct participation as a combatant in armed conflict for private gain'. It is also prohibited to render or offer any foreign military assistance to any state or organ of state, group of persons, or other entity unless authorisation has been granted by the National Conventional Arms Control Committee. Such an authorisation is unlikely to be granted if it would, inter alia, 'support or encourage terrorism in any manner'.

Targeting the tools of terrorism

Armaments Development and Production Act of 1968

The act regulates the manufacture, possession and importation of armaments. The meaning of armaments is broadly defined to include 'bombs, ammunition or weapons, or any substance, material, components… of whatever nature capable of being used in the development, manufacture or maintenance of armaments'.15

In terms of the act the minister of defence may by notice in the Government Gazette prescribe that no armaments of a specific class or kind be imported into the country or moved inside the country. Moreover, that no specified armaments be developed or manufactured in the country. Armaments may also be classified according to the manner in which, or material from which, they are developed or manufactured. Anyone found guilty contravening such provisions is liable on conviction to a fine of R10 000 or up to 10 years imprisonment, or both the fine and imprisonment.

Explosives Act of 1956

The act regulates the manufacture, storage, transport, importation, exportation and the use of explosives. A 1997 amendment to the act holds that no person may manufacture, import, possess, sell, supply or export any plastic explosive that is not marked with a detection agent.16 A detection agent is a substance—as laid down by the United Nations Convention on the Marking of Plastic Explosives for the Purpose of Detection—which is mixed into an explosive to enhance its ability to be detected by vapour-detection means.

In terms of the act, 'inspectors of explosives' may at any time enter any explosive factory or storage facility for the purpose of inspecting it. Such inspectors may also remove samples of explosives, or ingredients of explosives, for the purposes of analysis and testing.

The act lays down minimum sentences for certain explosive-related offences. Any person who wilfully causes an explosion causing danger to life or property (but without killing anyone) is liable to imprisonment without the option of a fine for a period of between 3 and 15 years.

Dangerous Weapons Act of 1968

In terms of the act, a 'dangerous weapon' is any object, other than a firearm, which is likely to cause serious bodily injury if used to commit an assault. Anyone who is in possession of a dangerous weapon is guilty of an offence unless he can prove that he at no time had the intention of using the weapon or object for any unlawful purpose. The penalty for conviction of this offence is a fine or a period of imprisonment of up to two years.

The minister for safety and security may, by notice in the Government Gazette, prohibit any person or any person belonging to a specified class of persons from being in possession of a dangerous weapon. Such a prohibition may also be imposed in respect of a specified gathering or a specific type of gathering.17 Details of the circumstances under which such possession is prohibited, the time period for which the prohibition applies and the weapons covered by the prohibition must be specified in the notice. The act also provides for minimum sentences for violent offences involving dangerous weapons.

Firearms Control Act of 2001

According to the act, it is an offence to possess a firearm without a licence. Anyone convicted of possessing an unlicensed firearm can be fined or imprisoned for up to 15 years. The possession of ammunition by a person who does not hold a licence in respect of a firearm capable of discharging that ammunition carries with it a maximum penalty of 15 years imprisonment. The possession of 'prohibited firearms' including fully automatic firearms, grenades, bombs and explosive devices is also a criminal offence. The penalty on conviction of possession of a prohibited firearm is a fine or a period of imprisonment of up to 25 years. Any police official may search any premises, vehicle, vessel or aircraft and seize any firearm and ammunition that is reasonably suspected of being held in contravention of the act.

Non-Proliferation of Weapons of Mass Destruction Act of 1993

The act provides for control over weapons of 'mass destruction', that is, a weapon designed to kill, harm or infect people, animals or plants through the effect of a nuclear explosion, or the toxic properties of a chemical or biological warfare agent.18 The act, which is administered by the department of trade and industry, establishes a non-proliferation council which controls all imports, exports and transfers of dual-use technologies, dual-use materials and dual-use items that can be used in the production and operation of weapons of mass destruction.

An inspector appointed by the council may at any reasonable time enter any premises where controlled goods are kept or are reasonably suspected of being kept. An inspector is given a variety of powers for the effective performance of his duties. A failure to comply with an inspector's lawful request is a criminal offence and is liable on conviction to a fine or to imprisonment for up to 10 years. Anyone convicted of the offence of falsely representing that any goods or activities fall outside the purview of the act is liable to a fine or imprisonment for up to 15 years.

Protecting specific places

National Key Points Act of 1980

The act empowers the minister of defence to declare a place or area as a national key point if it appears to the minister that such a place or area is so important that its loss, damage or disruption or immobilisation may prejudice the country, or whenever the minister considers it necessary or expedient for the safety of the country, or in the public interest. The owner of a national key point must, after consultation with the minister, take steps at his own expense to enhance the security of the key point to the satisfaction of the minister. The minister may make regulations to grant guards employed to protect national key points additional powers in respect of the searching of persons, the examination and seizure of articles and the arresting of persons. Anyone who furnishes information relating to the security measures at any national key point without being legally obliged or entitled to do so, is committing an offence and on conviction is liable to a fine of up to R10 000 and/or a sentence of up to three years of imprisonment.

Diplomatic Immunities and Privileges Act of 1989

The act gives effect to the provisions of the Vienna convention on diplomatic relations of 1961. The convention places a 'special duty' on the receiving state to take all appropriate steps to protect the premises of foreign missions against any intrusion or damage, and to prevent any disturbance of the peace of the mission. The receiving state is also obliged to take all appropriate steps to prevent any attack on the person, freedom or dignity of a member of the diplomatic staff of a foreign mission.

Specific offences

Civil Aviation Offences Act of 1972

The act creates a number of offences relating to aircraft and airports. Anyone who:

on board an aircraft unlawfully seizes control of the aircraft by force, threat of force or intimidation, or assaults someone on the aircraft, thereby endangering the safety of the aircraft;



destroys or damages an aircraft which is likely to endanger its safety in flight;



places on an aircraft a device which is likely to destroy or damage the aircraft and is likely to endanger its safety in flight;



places at an airport a device which is calculated to endanger any person or any vehicle, aircraft, building or air navigation equipment;



wilfully pollutes any aviation fuel, or



performs any other act which may jeopardise the operation of an air carrier, the safety or good order of an airport,

is guilty of an offence and liable on conviction to a period of imprisonment of between 5 and 30 years. Anyone who communicates information that he knows to be false and by doing so interferes with the operation of an air carrier or an airport, is guilty of an offence carrying a penalty of imprisonment for up to 15 years, without the option of a fine.

Merchant Shipping Act of 1951

According to the act, no person may without a reasonable excuse do anything to obstruct or damage any equipment on a ship, or obstruct, impede or molest any of the crew in the navigation and management of the ship or otherwise, in the execution of their duties on the ship. Anyone convicted of contravening this provision can be fined or imprisoned for a period of up to one year. Moreover, it is illegal to go on board a ship without the permission of the ship's owner or the person in charge of the ship. Similarly, to remain on board a ship in a South African port after being required to leave by the owner, captain of the ship or police officer is an offence. In convicting a person of contravening either of these two provisions, a court may impose a fine or a period of imprisonment of up to three months.

Conclusion

It is no easy task for a liberal democracy to deal effectively with a sustained terrorist threat. Civil liberties, constitutionally entrenched rights and the rule of law come at a cost when it comes to fighting terrorism: the state has to expend considerable resources and patiently collect evidence over frustratingly long periods of time to convict the kingpins of a closely knit terrorist network.

The alternative is to apprehend and lock away suspected terrorists at all costs. This might seem the better way to some. However, to sacrifice individual rights and liberal values to combat acts of terror is to accept the terrorists' belief that the end justifies the means.

Operationally the state responded effectively in stabilising the internal security situation in the Western Cape. Through special intelligence-driven joint police and defence force operations the security forces contributed to a significant reduction in terrorist related incidents by the end of 2000.

South Africa's draft Anti-Terrorism Bill proposes to consolidate the country's security laws. The draft bill seeks to create an omnibus statute to address the issue of terrorism and a variety of related crimes in one piece of legislation. The draft bill contains some controversial provisions, notably proposals that terror suspects can be detained without charge for up to 14 days, and an excessively broad definition of terrorism. People who commit acts of terror should be punished to the full extent of the law, but not at the expense of sacrificing the very values which they seek to destroy.