During 1998, some 567 attacks that police alleged were gang or terror-related — including pipe bombings, petrol bombings and drive-by shootings — were perpetrated in the greater Cape Town area. While 168 arrests were made as a consequence of these attacks, none resulted in a successful prosecution.

On the first day of 1999, a car bomb exploded outside the well known shopping and tourist destination, the V&A Waterfront in Cape Town, injuring two persons. A few weeks after the Waterfront blast, another car bomb exploded just metres from the entrance to the Caledon Square police station in central Cape Town, injuring eleven. In November, a bomb placed inside a popular beachfront restaurant in the city injured 48. A few days before the end of the year — on Christmas eve — a police vehicle was ambushed. The seven police officers in the vehicle who were responding to a telephonic bomb threat, were injured as a bomb exploded outside the restaurant where they were headed to investigate the threat.

As a result of these bomb blasts, and strong public pressure to act against the perpetrators of acts of terror, government policy makers announced their intention to promulgate tough anti-terrorism legislation for South Africa. The acting premier of the Western Cape, Peter Marais, has called for constitutional amendments, in particular to provisions which give terror suspects the right to remain silent and which require that they should be released within 48 hours or should be charged. The police could not be expected to build watertight cases against ‘terrorists’ in such a short period, Marais said.¹ The minister for safety and security, Steve Tshwete, has also called on Parliament to amend the Constitution to extend the 48-hour rule, and that suspects’ access to legal representation during this period should be restricted.²

The question to be asked is whether new draconian anti-terrorism legislation is necessary. The South African government and the criminal justice system already have at their disposal numerous pieces of legislation to combat acts of terror and terrorist organisations.

SOUTH AFRICA’S ANTI-TERRORISM POLICY

In 1998, the South African government approved a new official policy on terrorism. In terms of the policy, terrorism is defined as:

"An incident of violence, or the threat thereof, against a person, a group of persons or property not necessarily related to the aim of the incident, to coerce a government or civil population to act or not to act according to certain principles."

According to its terrorism policy, the South African government is committed:

to uphold the rule of law;

never to resort to any form of general and indiscriminate repression;

to defend and uphold the freedom and security of all its citizens; and

to acknowledge and respect its obligations to the international community.

Moreover, according to the terrorism policy, the South African government shall:

condemn all acts of terror;



take all lawful measures to prevent acts of terror and to bring to justice those who are involved in acts of terror;



undertake to protect foreign citizens from acts of terror in South Africa;



in the event of an act of terror in a foreign country and involving a South African citizen, co-operate with the host government to resolve the matter;



not make concessions that could encourage extortion by terrorists;



not allow its territory to be used as a haven to plan, direct or support acts of terror;



support and co-operate with the international community in their efforts to prevent and combat acts of terror;



use all appropriate measures to combat terrorism; and



support its citizens who are victims of terrorism.

South Africa’s anti-terrorism policy — unlike the populist pronouncements of some of its policy makers — has taken the encouraging approach that terrorism is to be combated without sacrificing citizens’ civil liberties and the rule of law. The value of this approach — and the dangers of ignoring it in favour of a draconian one — are spelled out by Paul Wilkinson in Terrorism and the liberal state:

 "The primary objective of a counter-terrorist strategy must be the protection and maintenance of liberal democracy and the rule of law. It cannot be sufficiently stressed that this aim overrides in importance even the objective of eliminating terrorism and political violence as such. Any bloody tyrant can ‘solve’ the problem of political violence if he is prepared to sacrifice all considerations of humanity, and to trample down all constitutional and judicial rights ... To believe that it is worth snuffing out all individual rights and sacrificing liberal values for the sake of ‘order’ is to fall into the error of the terrorists themselves, the folly of believing that the end justifies the means.

It must be a cardinal value of liberal democracies in dealing with problems of civil violence and terrorism, however serious these may be, never to be tempted into using the methods of tyrants and totalitarians ... It is a dangerous illusion to believe one can ‘protect’ liberal democracy by suspending liberal rights and forms of government. Contemporary history abounds in examples of ‘emergency’ or ‘military’ rule carrying countries from democracy to dictatorship with irrevocable ease."³

SECURITY LEGISLATION IN SOUTH AFRICA

A South African Law Commission project committee on security legislation was appointed in October 1998. The project committee is conducting a wide ranging review of security legislation in South Africa, and will concentrate on matters such as:⁴

a review of terrorism and sabotage legislation so that South Africa’s obligations in respect of international terrorism are fulfilled;



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



a review of the Interception and Monitoring Act, with the aim of granting the state greater powers in intercepting and monitoring communications;



economic espionage which poses a threat to national security;



the protection of property and personnel of foreign governments and international organisations, including protection from intimidation, obstruction, coercion and acts of violence committed against foreign dignitaries, foreign officials and their family members; and



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

In 1996, Parliament passed the Safety Matters Rationalisation Act.⁵ The Act repealed a number of South African statutes dealing with security legislation, including those of the former TBVC states (Transkei, Bophuthatswana, Venda and Ciskei), which were clearly inconsistent with the Interim Constitution. A total of 34 laws were repealed in the process.

The statute books, however, contain numerous laws which can be used to combat terrorism and related criminal activities. Available to the state are laws seeking to protect the country’s internal security (much of it remnants of legislation enacted before 1994); legislation which permits the state to restrict gatherings and demonstrations; legislation enhancing the state’s power to collect information on terrorist organisations and crime syndicates; and legislation directed against terrorism’s foot soldiers and its sources of money: criminal gangs and organised criminal groups, respectively.

STATE OF EMERGENCY

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."⁶

The State of Emergency 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.⁷ 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.⁸

INTERNAL SECURITY ACT

In terms of the Internal Security Act, a person is guilty of the offence of terrorism if he or she, 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:⁹

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.

Persons are guilty of the offence of sabotage if they, inter alia, commit (or attempt to commit) any act; or conspire with other persons to commit an act; or incite, aid, or advise 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 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 or she deems it necessary in the interest 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.

CRIMINAL LAW SECOND AMENDMENT ACT OF 1992

The Criminal Law Second Amendment Act prohibits any person from:¹⁰

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.

This applies when the members or supporters of such an 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.

The Act prohibits a variety of acts connected with military, paramilitary or other similar operations. 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 any other person or undergo any training in the conducting of any military or paramilitary operation;



train any other person or undergo any training in the construction, manufacture or use of 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.

These provisions of the Act do not apply to members of the SAPS, any municipal police service, or members of the SANDF who act in the course and within the scope of their duties.

Also excluded — in the case of any act relating to weapons or ammunition — are persons who are registered as security officers in terms of the Security Officers’ Act of 1987, as amended, provided that, in the case of an employer, the person acts in good faith in rendering a security service for the protection or safeguarding of persons or property. In the case of an employee, the person acts in the course and within the scope of his employment as such an officer and with a view to the protection and safeguarding of persons or property.

The Regulation of Foreign Military Assistance Act prohibits anyone from recruiting, using or training persons for, or finance or engage in mercenary activity.¹¹ 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."

Foreign military assistance is broadly defined and means military services or military-related services, or any attempt, encouragement, or solicitation to render such services in the form of:

military assistance to a party to an armed conflict by means of: advice or training; personnel, financial, logistic, intelligence or operational support; personnel recruitment; medical or para-medical services; or procurement of equipment;



security services for the protection of individuals involved in armed conflict or their property;



any action aimed at overthrowing a government or undermining the constitutional order, sovereignty or territorial integrity of a state; or



any other action that results in promoting the military interests of a party to an armed conflict.

Excluded from the ambit of the Act are humanitarian or civilian activities aimed at relieving the plight of civilians in an area of armed conflict.

Any person convicted of contravening the above provisions of the Act is liable to a fine and/or to imprisonment (no maximum limit is set in the Act). Moreover, the court convicting any person of an offence under the Act may declare any armament, weapon, vehicle, uniform, equipment or other property in respect of which the offence was committed or which was used for the commission of the offence, to be forfeited to the state.

The Intimidation 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.¹² Any person who does so and commits (or threatens to commit) an act of violence is guilty of an offence and, if convicted, can be fined to an amount at the discretion of the court and/or to imprisonment for a period of up to 25 years.

Moreover, 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 be imprisoned for up to 10 years.

The Explosives Act regulates the manufacture, storage, transport, importation, exportation and the use of explosives.¹³ A 1997 amendment to the Act holds that no person may manufacture, import, possess, sell, supply or export any plastic explosive which is not marked with a detection agent.¹⁴ 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 detectability by vapour detection means.

In terms of the Act, ‘inspectors of explosives’ may enter any explosive factory or storage facility for the purpose of inspection at any time. 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 explosives-related offences. Any person who wilfully causes an explosion resulting in danger to life or property (but without killing anyone) is liable to imprisonment without the option of a fine for a period of between three and 15 years.

Any person who threatens, or falsely alleges that any other person intends to cause an explosion whereby life or property is, or may be endangered, in order to intimidate any person, is liable on conviction to imprisonment for a period of between three and 15 years.

In terms of the Regulation of Gatherings Act, organisers of demonstrations and marches must give seven days’ notice to a ‘responsible officer’ appointed by the local authority in whose jurisdiction the gathering is to take place.¹⁵ If this is not reasonably possible, a shorter notice period can be given.

The written notice must contain, among others, the name and address of the convenor of the gathering, where the gathering is to take place, and its purpose. The ‘responsible officer’ may prohibit a proposed gathering if he or she has been given information under oath that such a gathering could result in serious disruptions of traffic, injury to participants or others, or extensive damage to property.

No participant or other person in a gathering or demonstration, through the use of placards, speech or singing, may "incite hatred of other persons on account of differences in culture, race, sex, language or religion." No participant or other person may perform any act or utter any words "calculated or likely to encourage violence" against any person or group. The wearing of masks or disguises is prohibited, as is the donning of uniforms similar to those of the security forces.

The Interception and Monitoring Prohibition Act permits a judge to direct that postal articles, communications and conversations by, to or from a person or organisation are intercepted or monitored.¹⁶ A judge making such a directive must be convinced that a serious offence has been, or will probably be committed, and that such an offence cannot be properly investigated in any other manner. The offence under investigation must have been committed over a lengthy period of time, on an organised or regular basis, or harm the country’s economy.

A judge may only direct the interception or monitoring of an article or communication for three months at a time. Any member of the SAPS executing a direction may enter into any premises to install a monitoring device, or to intercept a postal article or communication.

The Judicial Matters Amendment Act of 1998 amended the Interception and Monitoring Prohibition Act. The amendment grants the police the authority to intercept and monitor any communication, including electronic mail and facsimile communication.

A South African Law Commission discussion paper released in 1998 recommends that all telecommunication service providers should be obliged by law to acquire, at their own expense, equipment permitting the monitoring and interception of communications on their systems. Moreover, no South African telecommunication service providers should be permitted to provide facilities — from telephones and cellular phones, to the Internet — which are not capable of being monitored.¹⁷

The National Strategic Intelligence Act provides for the establishment of the National Intelligence Co-ordinating Committee (Nicoc).¹⁸ Nicoc is responsible for the co-ordination of intelligence supplied by the intelligence division of the SANDF, the intelligence division of the SAPS, the National Intelligence Agency (NIA), and the South African Secret Service.

In terms of the Criminal Procedure Second Amendment Act, police officers and other authorised persons may use a trap, or engage in an undercover operation, to detect, investigate or uncover the commission of an offence, or to prevent the commission of an offence.¹⁹ Evidence obtained through an undercover operation or a trap is admissible in court, provided that conduct does not go beyond providing an opportunity to commit an offence. However, even under such circumstances, the courts have the discretion of accepting the evidence. In considering whether to admit such evidence, the courts have to weigh up the public interest against the personal interest of the accused, having regard to, inter alia, the seriousness of the offence, the extent of the effect of the trap or undercover operation upon the interests of the accused, and the nature and seriousness of any infringement of any fundamental constitutional right.

A police officer or other authorised person acting within the parameters of the Act cannot be held criminally liable "in respect of any act which constitutes an offence and which relates to the trap or undercover operation if it was performed in good faith."

In terms of the National Prosecuting Authority Act, the president may establish three investigating directorates in respect of specific offences or specified categories of offences.²⁰ Every investigating directorate consists of an investigating director assisted by one or more deputy directors of public prosecutions, prosecutors, civil servants seconded to the directorate, and any person whose services the directorate requires for a particular inquiry.

Investigating directorates are provided with considerable powers for the fulfilment of their mandates. If an investigating director has reason to suspect that a specific offence has been, or is being committed, or that an attempt is being made to commit an offence, he or she may hold an inquiry on the matter. The inquiry may be extended to include any offence which might be connected to the subject of the inquiry.

An investigating director may summon any person who can furnish information on the subject of an inquiry, or who has any document or other object relating to that subject, to appear before him or her. The summoned person may be questioned under oath by an investigating director (or a person designated by him or her), and any document or object may be examined or retained. The summoned person may not refuse to answer any question on the ground that the answer could expose him or her to a criminal charge.

On obtaining a warrant from a court, an investigating director, or his or her agents may enter and search premises where anything connected with an inquiry is suspected to be. An investigating director may examine any object found on the premises, and request from the owner or person in charge of the premises information regarding that object. It is a criminal offence for anyone to refuse to supply requested information, or to give false or misleading information. An investigating director may also seize anything on the premises which might have a bearing on the inquiry in question. Under certain circumstances, premises may also be entered and searched without a warrant.

The statutory protection of witnesses is a new concept in South Africa. It was introduced in 1991 through an amendment to the Criminal Procedure Act.²¹ The main shortcoming of the system was the lack of a proper centralised structure to co-ordinate and lay down a uniform policy on witness protection.

The Witness Protection Act addresses this problem by establishing an Office for Witness Protection headed by a national director.²² The Act enlarges the scope of the witness protection programme beyond merely criminal trials as has been the case so far. The Act provides for the protection of witnesses of commissions of enquiry and inquest proceedings, proceedings before a special tribunal, as well as investigations of the Independent Complaints Directorate which investigates cases of police misconduct and complaints levelled against the police.²³ The kind of offences for which protection may be granted has been expanded. The director also has the discretion to grant protection to a witness in respect of any offence if he or she is of the opinion that the safety of the witness warrants it.

The Prevention of Organised Crime Act defines a number of offences relating to criminal gangs.²⁴ Criminal gang members or participants of such gangs are guilty of an offence if they, inter alia, wilfully aid any criminal activity committed for the benefit, or in association with, a criminal gang. Moreover, any person who promotes or contributes towards a pattern of criminal gang activity, or incites, aids or encourages any person to commit or participate in a pattern of criminal gang activity, is guilty of an offence. Persons found guilty of such offences are liable to a fine and to imprisonment ranging from three to eight years.

The Act defines a criminal gang as any formal or informal ongoing organisation of three or more persons:

"which has as one of its activities the commission of one or more criminal offences, which has an identifiable name or identifying sign or symbol, and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity."

Provided the state has an idea which person attached to what organisation likely to be engaged in acts of terrorism in the future, and the organisation fits the description of a ‘criminal gang’, a successful prosecution of such an individual should be possible. The provisions of the Act relating to criminal gangs can be used for the conviction of persons against whom there is insufficient evidence of direct terrorist activities, or those who have threatened, but not yet committed a serious crime.²⁵

To assist the courts in determining whether a particular person is a member of a criminal gang, the Act stipulates that the courts may regard certain factors. These include that such a person:

admits to criminal gang membership;



is identified as a member of a criminal gang by a parent or guardian;



resides in, or frequents a particular criminal gang’s area and adopts their style of dress, their use of handsigns, language or their tattoos, and associates with known members of a criminal gang;



has been arrested more than once in the company of identified members of a criminal gang for offences which are consistent with usual criminal gang activities; and



is identified as a member of a criminal gang by physical evidence such as photographs or other documentation.

OPERATIONAL ENVIRONMENT

Even the best legislation is ineffective if it is not properly implemented and utilised by personnel (primarily the police and the prosecution service) of the criminal justice system. Over the last few years, a number of initiatives have sought to strengthen the operational capacity of the criminal justice system to combat terrorism more effectively in South Africa.

In late 1998, the Investigating Directorate: Organised Crime and Public Safety was established in terms of the National Prosecuting Authority Act. The unit’s head leads a multidisciplinary team of senior state advocates, prosecutors, attorneys from the private sector, police investigators, chartered accountants, and members of the NIA and the South African Revenue Service (SARS). According to the minister of justice at the time, Dullah Omar:

"The directorate will bring together with one line of command, all the different agencies engaged in the fight against crime. This will go a long way towards ensuring maximum co-operation, and will eliminate competition and in-fighting [among law enforcement agencies]."²⁶

Out of a total of some 20 000 detectives in the SAPS, only 13 000 (65%) had undergone specialist detective training by October 1997.²⁷ The investigation of crimes by the SAPS is inadequate. The average workload of a detective consists of the investigation of 140 separate cases simultaneously, making any proper and thorough investigation impossible.²⁸ On average, of every ten crimes which are reported to the police, only two are investigated sufficiently for the prosecution to take on the case.²⁹

A newly established detective academy presented its first course in October 1997. By mid-1999, the academy had already trained a few thousand detectives, including specialist detectives engaged in investigating cases of organised crime, as well as forensic specialists who would investigate terrorist crime scenes (such as bomb blasts and drive-by shootings).

The Southern African Regional Police Chiefs Co-operation Organisation (SARPCCO) was established in 1995 to enhance co-operation between the policing agencies of its 12 members, including South Africa.³⁰ The objective of SARPCCO is to promote, strengthen and perpetuate co-operation and foster joint strategies for the management of all forms of crossborder and related crimes with regional implications.³¹

In 1996, South Africa and the United States signed an anti-crime agreement. Part of the agreement provides for the development of a police training programme to enhance the SAPS’s professional capabilities in fighting crime. This includes specialised courses offered by US law enforcement training programmes, such as the International Criminal Investigative Training Assistance Program (ICITAP).³²

At the 1997 African Regional Interpol Conference, a resolution was passed to establish an African organised crime database to which all African Interpol member states have access. (All SARPCCO member states are members of Interpol.) The SAPS was the first policing agency to utilise the database.³³ Bilateral co-operation agreements also exist between the SAPS and the policing agencies of Argentina, Brazil, France and the Russian Federation.

The Directorate of Special Investigations (nicknamed the ‘Scorpions’), which was launched in September 1999, has identified ‘crimes against the state’ as one of its priority areas. The new directorate, which reports to the national director of public prosecutions, operates along a multidisciplinary approach that includes intelligence, investigations and prosecutions.

The directorate will consist of specialised investigation teams which will be lead by experienced lawyers and prosecutors. The latter will advise and direct police investigators in their work so that sufficient evidence is collected for the prosecution service to convict those who commit acts of terror in South Africa.

As a result of the worsening security situation in the Western Cape, and rising levels of urban terrorism, operation Good Hope was implemented in January 1999. The operation’s mission was to "prevent, combat and successfully investigate acts of terrorism and related crimes."³⁴

Operation Good Hope’s personnel consists of members of the SAPS (members of the public order units and the special task force, an investigation team, an intelligence team, a communications team, and visible uniformed police), and the SANDF (uniformed soldiers, members of the special forces and Military Intelligence).

The operation rests on three pillars: intelligence, investigations and operations. Emphasis is placed on collecting information which could assist the prosecution service to secure successful prosecutions against those involved in terrorist activities.

By mid-1999, Operation Good Hope had stabilised the internal security situation in the Western Cape. The number of incidents of urban terror involving criminal gangs and Pagad (People Against Gangsterism and Drugs) had decreased from 296 for the period January to May 1998, to 94 during the corresponding period in 1999. Operation Good Hope, however, has been less successful in prosecuting those suspected of committing acts of terrorism. Moreover, a number of high profile bombings in Cape Town at the end of 1999 revealed the operation’s weakness: it was unable to identify and effectively destroy the groups or cells responsible for these acts of terror.

WEAKNESSES IN THE STATE’S RESPONSE

The perpetrators of (especially urban) terrorism frequently belong to small close-knit cells with members strictly sworn to secrecy. To uncover such a group and collect sufficient evidence on its activities in order to launch a successful prosecution, the state’s security services need to have the ability to collect accurate evidence and intelligence. Often, this requires that the state deploys undercover agents to infiltrate such a group.

As Wilkinson points out:

"A crucial requirement for defeating any political terrorist campaign must be the development of high quality intelligence, for unless the security forces are fortunate enough to capture a terrorist red-handed at the scene of the crime, it is only by sifting through comprehensive and accurate intelligence data that the police have any hope of locating the terrorists. It is all very well engaging in fine rhetoric about maximising punishment and minimising rewards for terrorists. In order to make such a hard line effective the government and security chiefs need to know a great deal about the groups and individuals that are seeking rewards by terrorism, about their aims, political motivations and alignments, leadership, individual members, logistics and financial resources and organisational structures."³⁵

It is questionable whether South Africa’s intelligence agencies have the resources and personnel necessary to infiltrate suspected terrorist groups in the country successfully.³⁶ Moreover, it appears that there is considerable interagency rivalry and even distrust between the various intelligence agencies dealing with internal security matters, thus further weakening the state’s intelligence capabilities vis-à-vis suspected terrorist groups.³⁷

A further weakness in the South African state’s response to acts of urban terrorism has been its inability to prevent certain (albeit a small minority) elements within the police service and defence force from breaking the law in their overzealous attempts at apprehending terror suspects and searching their homes.

Moreover, unrealistic and unfulfilled promises by high-ranking police officers and politicians — including the minister for safety and security — regarding the police’s ability to track down and arrest terrorism suspects have dealt the security forces some detrimental psychological blows. For example, at the beginning of December 1999, three days after a bomb blast in a Camps Bay pizza restaurant, the minister of justice and constitutional development, Penuell Maduna, promised that "the year will not come to an end before we have found [the Camps Bay bombers] and put them in jail."³⁸ Safety and security minister, Steve Tshwete, was even bolder and assured the public that the terrorists would be behind bars by Christmas.³⁹ This did not happen, and on Christmas Eve, a further bomb injured seven police officers. Such statements have the effect of lowering public morale and playing into the hands of the terrorists by enhancing their status. Wilkinson argues:

"Terrorist propaganda and defamation should be countered by full and clear statements of the government’s objectives, policies and problems. Sudden vacillations in security policy should be avoided: they tend to undermine the confidence of public servants, security personnel and the general public ... The government and its security forces must at all times act within the law. The terrorists can make enormous propaganda capital out of violations of the law by members of the security forces and use these as additional justifications for their own campaigns. Thus they conveniently divert the public’s gaze away from the violations of the law and outrages stemming from their own petty tyranny, and attempt to portray the incumbent authorities as monstrous blood-soaked oppressors."⁴⁰

CONCLUSION

Numerous pieces of legislation, designed to combat terrorism, uphold internal security, and strengthen the hands of the security forces against terror groups, are already on the South African statute books. Many of the available laws are not being used fully by the security forces because of a variety of operational weaknesses in the criminal justice system and the state’s intelligence agencies.

Policy makers should direct their efforts at these weaknesses, before advocating populist measures which seek to dilute some of the rights and civil liberties entrenched in the country’s Constitution. Terrorism can be effectively combated. What is needed, is a well-run and adequately resourced criminal justice system staffed by trained and motivated personnel. Amending the Constitution and restricting accused persons’ rights are not the answers.

"The keynote to the liberal democratic response to terrorism must be firmness and the determination to uphold the constitutional authority and the rule of law."⁴¹

NOTES

F Chothia, Tshwete seeks new terror laws, Business Day, 30 November 1999.



J Steinberg, Irate Tshwete playing to the crowd, Business Day, 7 January 2000. See also A Hadland, Move to draft anti-terror legislation, Sunday Argus, 31 January 1999.



P Wilkinson, Terrorism and the liberal state, Macmillan Education, London, 1986, pp 125-126.



South African Law Commission, discussion paper 78, project 105, Review of Security Legislation. The Interception and Monitoring Prohibition Act, Pretoria, November 1998, pp 1-3.



Safety Matters Rationalisation Act no 90 of 1996.



Constitution of the Republic of South Africa Act no 108 of 1996, section 37(1).



State of Emergency Act no 64 of 1997. 



Constitution of the Republic of South Africa Act no 108 of 1996, section 37(2)(b).



Internal Security Act no 74 of 1982, as amended.



Criminal Law Second Amendment Act no 126 of 1992.



Regulation of Foreign Military Assistance Act no 15 of 1998.



Intimidation Act no 72 of 1982, as amended.



Explosives Act no 26 of 1956, as amended.



Explosives Act no 26 of 1956, as amended by Act no 83 of 1997, section 8A(1).



Regulation of Gatherings Act no 205 of 1993, as amended.



Interception and Monitoring Prohibition Act no 127 of 1992, as amended.



South African Law Commission, op cit.



National Strategic Intelligence Act no 39 of 1994, as amended.



Criminal Procedure Second Amendment Act no 85 of 1996.



National Prosecuting Authority Act no 32 of 1998.



Criminal Procedure Act no 51 of 1977, as amended by Act no 135 of 1991, section 185A.



Witness Protection Act no 112 of 1998.



Those established under the Special Investigating Units and Special Tribunals Act 74 of 1996.



Prevention of Organised Crime Act no 121 of 1998, as amended.



See J Redpath, Trial better than detention for urban terror suspecs, Sunday Times, 9 January 2000.



Press statement by Mr Dullah Omar on the establishment of an Investigating Directorate on Organised Crime and Public Safety, 17 September 1998.



Hansard (Q:NA), no 19, columns 3978-3979, 25 November 1997.



T van Vuuren, Private and public cooperation in the restoration of order in South Africa, Police Science Association of Southern Africa Bulletin 2, Pretoria, 1997, p 5.



The Nedcor project on crime, violence and investment (executive summary), June 1996, p 2.



SARPCCO member states are: Angola, Botswana, Lesotho, Malawi, Mauritius, Mozambique, Namibia, South Africa, Swaziland, Tanzania, Zambia, and Zimbabwe.



D J M Bruce, The role and achievements of the Southern African Regional Police Chiefs Co-operation Organisation (SARPCCO), ISSUP Bulletin 4/98, Pretoria, 1998, p 3.



US, South Africa sign anti-crime agreement, <http://www.usia.gov/regional/bnc/usafrica/sfmtcrim/htm>.



Hansard (Q:NA), no 15, columns 2237-2238, 22 July 1998.



Briefing paper, Operation Good Hope (prevention, combating and investigation of terrorism and related crimes), undated, p 1.



Wilkinson, op cit, pp 137-138.



M Merten, Police helpless in Cape of fear, Mail & Guardian, 3 December 1999.



T Lamberti, The rivalry between police units is a major problem, Business Day, 13 December 1999; A Smith, What is going on in police force?, Cape Argus, 9 December 1999.



T Lamberti, All resources used to hunt for bombers, Business Day, 1 December 1999.



Tshwete not reassuring, The Citizen, 28 December 1999.



Wilkinson, op cit, pp 127-128.



Wilkinson, op cit, p 127.