Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004 (Act No. 33 of 2004)Chapter 1 : Definitions and Interpretation1. Definitions |
In this Act, unless the context indicates otherwise—
refers to a person who accesses a computer data storage medium or a computer system as contemplated in section 2(2)(b) of the Cybercrimes Act;
[Definition inserted by section 1(a) of the Protection of Constitutional Democracy against Terrorism and related activities Amendment Act, 2022 (Act No. 23 of 2022), Notice No. 1533, G47803, dated 29 December 2022 - effective 4 January 2023 per Proclamation Notice 110, GG47820, dated 4 January 2023]
with reference to section 15, means an appropriate government body as defined in section 1 of the International Co-operation in Criminal Matters Act, 1996 (Act 75 of 1996);
means computer as defined in section 1 of the Cybercrimes Act ;
[Definition inserted by the Protection of Constitutional Democracy against Terrorism and related activities Amendment Act, 2022, by section 1(b) of Notice No. 1533, G47803, dated 29 December 2022]
means computer data storage medium as defined in section 1 of the Cybercrimes Act ;
[Definition inserted by the Protection of Constitutional Democracy against Terrorism and related activities Amendment Act, 2022, by section 1(b) of Notice No. 1533, G47803, dated 29 December 2022]
means computer system as defined in section 1 of the Cybercrimes Act
[Definition inserted by the Protection of Constitutional Democracy against Terrorism and related activities Amendment Act, 2022, by section 1(b) of Notice No. 1533, G47803, dated 29 December 2022]
means—
| (a) | an offence, created in fulfilment of the Republic's international obligations in terms of instruments dealing with terrorist and related activities, referred to in Part 2 of Chapter 2; |
| (b) | an offence referred to in section 56 (1) (h) of the Nuclear Energy Act; or |
| (c) | an offence referred to in section 133 or 142(6) of the Civil Aviation Act, 2009 (Act No. 13 of 2009); |
[Definition substituted by the Protection of Constitutional Democracy against Terrorism and related activities Amendment Act, 2022, by section 1(c) of Notice No. 1533, G47803, dated 29 December 2022]
means the Criminal Procedure Act, 1977 (Act No. 51 of 1977);
[Definition inserted by the Protection of Constitutional Democracy against Terrorism and related activities Amendment Act, 2022, by section 1(d) of Notice No. 1533, G47803, dated 29 December 2022]
means critical infrastructure as defined in section 1 of the Critical Infrastructure Protection Act;
[Definition inserted by the Protection of Constitutional Democracy against Terrorism and related activities Amendment Act, 2022, by section 1(d) of Notice No. 1533, G47803, dated 29 December 2022]
means critical infrastructure complex as defined in section 1 of the Critical Infrastructure Protection Act;
[Definition inserted by the Protection of Constitutional Democracy against Terrorism and related activities Amendment Act, 2022, by section 1(d) of Notice No. 1533, G47803, dated 29 December 2022]
means the Critical Infrastruc-ture Protection Act, 2019 (Act No. 8 of 2019);
[Definition inserted by the Protection of Constitutional Democracy against Terrorism and related activities Amendment Act, 2022, by section 1(d) of Notice No. 1533, G47803, dated 29 December 2022]
means a digital representation of perceived value that can be traded or transferred electronically within a community of users of the internet who consider it as a medium of exchange, unit of account or store of value and use it for payment or investment purposes, but does not include a digital representation of a fiat currency or a security as defined in the Financial Markets Act, 2012 (Act No. 19 of 2012);
[Definition inserted by the Protection of Constitutional Democracy against Terrorism and related activities Amendment Act, 2022, by section 1(d) of Notice No. 1533, G47803, dated 29 December 2022]
means the Cybercrimes Act, 2020 (Act No. 19 of 2020);
means data as defined in section 1 of the Cybercrimes Act;
[Definition inserted by the Protection of Constitutional Democracy against Terrorism and related activities Amendment Act, 2022, by section 1(d) of Notice No. 1533, G47803, dated 29 December 2022]
means the Directorate for Priority Crime Investigation established by section 17C of the South African Police Service Act
[Definition inserted by the Protection of Constitutional Democracy against Terrorism and related activities Amendment Act, 2022, by section 1(d) of Notice No. 1533, G47803, dated 29 December 2022]
means a Director of Public Prosecutions appointed under section 13(1) of the National Prosecuting Authority Act, 1998 (Act 32 of 1998);
means electronic communications service provider as defined in section 1 of the Cybercrimes Act;
[Definition inserted by the Protection of Constitutional Democracy against Terrorism and related activities Amendment Act, 2022, by section 1(e) of Notice No. 1533, G47803, dated 29 December 2022]
with reference to sections 2 and 3, includes—
| (a) | the commission, performance or carrying out of; |
| (b) | the facilitation of, participation or assistance in, or contribution to the commission, performance or carrying out of; |
| (c) | the performance of an act in preparation for or planning of; or |
| (d) | instructing, directly or indirectly, the— |
| (i) | commission, performance, carrying out of; |
| (ii) | facilitation of, participation or assistance in, or contribution to the commission, performance or carrying out of; or |
| (iii) | performance of an act in preparation for or planning of, |
a terrorist activity, and the expressions "to engage in a terrorist activity", "engaging in a terrorist activity" and "engagement in a terrorist activity" shall be construed accordingly;
with reference to sections 3, 4, and 14 (in so far as it relates to the aforementioned sections), 22 and 23, means a natural person, or a group of two or more natural persons (whether acting in the furtherance of a common purpose or conspiracy or not), or a syndicate, gang, agency, trust, partnership, fund or other unincorporated association or organisation, or any incorporated association or organisation or other legal person, and includes, where appropriate, a cell, unit, section, subgroup or branch thereof or any combination thereof, and also any entity referred to in a Resolution of the United Nations Security Council and announced in a notice referred to in section 26A(3) of the Financial Intelligence Centre Act;
[Definition substituted by the Protection of Constitutional Democracy against Terrorism and related activities Amendment Act, 2022, by section 1(f) of Notice No. 1533, G47803, dated 29 December 2022]
with reference to the definition of 'explosive or other lethal device' in this section, and sections 5, 6, 10 and 13, means —
| (a) | a substance, or a mixture of substances, in a solid or liquid state, which is capable of producing an explosion; |
| (b) | a pyrotechnic substance in a solid or liquid state, or a mixture of such substances, designed to produce an effect by heat, light, sound, gas or smoke, or a combination of these, as the result of non-detonative self-sustaining exothermic chemical reaction, including pyrotechnic substances which do not evolve gases; |
| (c) | any article or device containing one or more substances contemplated in paragraph (a); |
| (d) | any plastic explosive; or |
| (e) | any other substance or article, which the Minister may from time to time, by notice in the Gazette, declare to be an explosive; |
[Definition substituted by the Protection of Constitutional Democracy against Terrorism and related activities Amendment Act, 2022, by section 1(g) of Notice No. 1533, G47803, dated 29 December 2022]
with reference to sections 3, 5, 6, 10 and 13, means—
| (a) | an explosive or incendiary weapon or device which is designed or manufactured, or has the capability, to cause death, serious bodily injury or material damage; |
| (b) | a weapon or device which is designed or manufactured, or has the capability, to cause death, serious bodily injury or material damage through the release, dissemination or impact of toxic chemicals, biological agents or toxins or similar substances or radiation or radioactive material; or |
| (c) | any weapon of mass destruction, as defined in section 1 of the Non-Proliferation of Weapons of Mass Destruction Act; |
[Definition substituted by the Protection of Constitutional Democracy against Terrorism and related activities Amendment Act, 2022, by section 1(h) of Notice No. 1533, G47803, dated 29 December 2022]
means the Financial Intelligence Centre Act, 2001 (Act No. 38 of 2001);
[Definition insertion by the Protection of Constitutional Democracy against Terrorism and related activities Amendment Act, 2022, by section 1(i) of Notice No. 1533, G47803, dated 29 December 2022]
with reference to sections 6 and 15, means an artificial island, installation, or structure permanently attached to the sea-bed for the purpose of exploration or exploitation of resources or for economic purposes, but does not include a ship;
means the Hazardous Substances Act, 1973 (Act No. 15 of 1973);
[Definition insertion by the Protection of Constitutional Democracy against Terrorism and related activities Amendment Act, 2022, by section 1(j) of Notice No. 1533, G47803, dated 29 December 2022]
means any data, computer data storage medium, computer system or computer program, as defined in the Cybercrimes Act, or any part thereof that is of such a significant economic, public, social or strategic importance that if any service rendered by the information infrastructure is disrupted, destroyed or degraded, it will have a significant effect on—
| (a) | the Republic’s ability to function, deliver basic public services or maintain law and order; or |
| (b) | the environment, the health or safety of the public or any segment of the public, or any other infrastructure that may negatively affect the functions and functioning of the information infrastructure in question; |
[Definition insertion by the Protection of Constitutional Democracy against Terrorism and related activities Amendment Act, 2022, by section 1(j) of Notice No. 1533, G47803, dated 29 December 2022]
with reference to the definition of "terrorist activity" in this section and section 5, means any publicly or privately owned facility providing or distributing services for the benefit of the public, such as water, sewage, energy, fuel or communications;
means any of the following instruments:
| (a) | The Convention on Offences and Certain Other Acts Committed on Board Aircraft, signed at Tokyo on 14 September 1963; |
| (b) | the Convention for the Suppression of Unlawful Seizure of Aircraft, signed at The Hague on 16 December 1970; |
| (c) | the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, concluded at Montreal on 23 September 1971; |
| (d) | the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents, adopted by the General Assembly of the United Nations on 14 December 1973; |
| (e) | the International Convention Against the Taking of Hostages, adopted by the General Assembly of the United Nations on 17 December 1979; |
| (f) | the Convention on the Physical Protection of Nuclear Material, adopted at Vienna on 26 October 1979; |
| (g) | the Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation, adopted at Montreal on 24 February 1988; |
| (h) | the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, 1988, adopted at Rome on 10 March 1988; |
| (i) | the Protocol for the Suppression of Unlawful Acts against the Safety of fixed Platforms on the Continental Shelf, 1988, adopted at Rome on 10 March 1988; |
| (j) | the Convention on the Marking of Plastic Explosives for the Purpose of Detection, signed at Montreal on 1 March 1991; |
| (k) | the International Convention for the Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on 15 December 1997; |
| (l) | the Convention on the Prevention and Combating of Terrorism, adopted by the Organisation of African Unity at Algiers on 14 July 1999; |
| (m) | the International Convention on the Suppression of the Financing of Terrorism, adopted by the General Assembly of the United Nations on 9 December 1999; |
| (n) | the Protocol to the Organisation of African Unity Convention on the Prevention and Combating of Terrorism, adopted at Addis Ababa by the Assembly of the African Union on 8 July 2004; |
| (o) | the International Convention for the Suppression of Acts of Nuclear Terrorism, adopted by the United Nations General Assembly on 13 April 2005; |
| (p) | Amendment to the Convention on the Physical Protection of Nuclear Material, adopted by the Parties to the Convention on 8 July 2005; |
| (q) | the Protocol to the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation, adopted by the International Maritime Organisation on 14 October 2005; |
| (r) | the Protocol to the Protocol for the Suppression of Unlawful Acts Against the Safety of Fixed Platforms located on the Continental Shelf, adopted by the International Maritime Organisation on 14 October 2005; |
| (s) | the Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation, concluded at Beijing on 10 September 2010; |
| (t) | the Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft, concluded at Beijing on 10 September 2010; and |
| (u) | the Protocol to Amend the Convention on Offences and Certain Acts Committed on Board Aircraft, concluded at Montreal on 4 April 2014; |
[Definition substituted by the Protection of Constitutional Democracy against Terrorism and related activities Amendment Act, 2022, by section 1(k) of Notice No. 1533, G47803, dated 29 December 2022]
with reference to the definitions of "intergovernmental organisation", "internationally protected person" and "terrorist activity" in this section, means an international organisation of states, and includes an intergovernmental organisation;
with reference to the definitions of "international organisation", "internationally protected person", "State or government facility" and "terrorist activity" in this section, and section 7, means an international organisation established by the governments of states;
with reference to section 8, means—
| (a) | a Head of State, including any member of a collegial body performing the functions of a Head of State under the constitution of the State concerned, a Head of Government or a Minister for Foreign Affairs, whenever any such person is in the Republic, as well as members of his or her family accompanying him or her; or |
| (b) | any representative or official of a State or any official or other agent of an international organisation or intergovernmental organisation or of an intergovernmental character who, at the time when and in the place where a crime against him or her or his or her official premises, his or her private accommodation or his or her means of transport is committed, is entitled, pursuant to international law to special protection from any attack on his or her person, freedom or dignity, as well as members of his or her family forming part of his or her household; |
means a Judge of the High Court;
means the Minister for Safety and Security;
means the National Commissioner of the South African Police Service appointed in terms of section 207(1) of the Constitution;
means the National Director of Public Prosecutions appointed in terms of section 179(1) of the Constitution;
means the Non-Proliferation of Weapons of Mass Destruction Act, 1993 (Act No. 87 of 1993);
[Definition insertion by the Protection of Constitutional Democracy against Terrorism and related activities Amendment Act, 2022, by section 1(l) of Notice No. 1533, G47803, dated 29 December 2022]
means the Nuclear Energy Act, 1999 (Act No. 46 of 1999);
[Definition insertion by the Protection of Constitutional Democracy against Terrorism and related activities Amendment Act, 2022, by section 1(l) of Notice No. 1533, G47803, dated 29 December 2022]
with reference to section 5, includes those parts of any building, land, street, waterway or other location that are at any time accessible or open to members of the public, whether continuously, periodically or occasionally;
means a "member" as defined in section 1 of the South African Police Service Act and with reference to section 24, includes a member of the South African National Defence Force employed in co-operation with the South African Police Service, in terms of section 201 (2) (a) of the Constitution in the prevention and combating of crime, and maintenance and preservation of law and order within the Republic, as contemplated in section 19 (1) of the Defence Act, 2002 (Act 42 of 2002);
[Definition substituted by the Protection of Constitutional Democracy against Terrorism and related activities Amendment Act, 2022, by section 1(m) of Notice No. 1533, G47803, dated 29 December 2022]
means any—
| (a) | money; |
| (b) | movable property; |
| (c) | immovable property; |
| (d) | corporeal thing; |
| (e) | incorporeal thing; |
| (f) | crypto asset, |
and includes any rights, privileges, claims and securities and any interest therein and all proceeds thereof;
[Definition substituted by the Protection of Constitutional Democracy against Terrorism and related activities Amendment Act, 2022, by section 1(n) of Notice No. 1533, G47803, dated 29 December 2022]
with reference to section 5, means all facilities, conveyances and instrumentalities, whether publicly or privately owned, that are used in or for publicly available services for the transportation of persons or cargo;
means the Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002 (Act No. 70 of 2002);
[Definition insertion by the Protection of Constitutional Democracy against Terrorism and related activities Amendment Act, 2022, by section 1(o) of Notice No. 1533, G47803, dated 29 December 2022]
with reference to the definition of "fixed platform" in this section and section 10, means a vessel of any type whatsoever not permanently attached to the sea-bed, including dynamically supported craft, submersibles or other floating craft, but does not include a ship which has been withdrawn from navigation or laid up;
[Definition substituted by the Protection of Constitutional Democracy against Terrorism and related activities Amendment Act, 2022, by section 1(p) of Notice No. 1533, G47803, dated 29 December 2022]
means a software of hardware tool as defined in section 4(2) of the Cybercrimes Act;
[Definition insertion by the Protection of Constitutional Democracy against Terrorism and related activities Amendment Act, 2022, by section 1(q) of Notice No. 1533, G47803, dated 29 December 2022]
means the South African Police Service Act, 1995 (Act No. 68 of 1995);
[Definition insertion by the Protection of Constitutional Democracy against Terrorism and related activities Amendment Act, 2022, by section 1(q) of Notice No. 1533, G47803, dated 29 December 2022]
with reference to section 4, 14 (in so far as it relates to section 4), and 23, means—
| (a) | the offence of terrorism referred to in section 2, an offence associated or connected with terrorist activities referred to in section 3, a Convention offence, or an offence referred to in section 13 or 14 (in so far as it relates to the aforementioned sections); or |
| (b) | any activity outside the Republic which constitutes an offence under the law of another state and which would have constituted an offence referred to in paragraph (a), had that activity taken place in the Republic; |
with reference to section 5, includes any permanent or temporary facility or conveyance that is used or occupied by representatives of a State, members of Government, the legislature or the judiciary or by officials or employees of a State or any other public authority or entity of the Republic or by employees or officials of an intergovernmental organisation in connection with their official duties;
with reference to this section and sections 2, 3 and 17 (2), means any act—
| (a) | committed in or outside the Republic, which— |
| (i) | involves the systematic, repeated or arbitrary use of violence by any means or method; |
| (ii) | involves the systematic, repeated or arbitrary release into the environment or any part of it or distributing or exposing the public or any part of it to— |
| (aa) | any dangerous, hazardous, radioactive or harmful substance or organism; |
| (bb) | any toxic chemical; |
| (cc) | any microbial or other biological agent or toxin; or |
| (dd) | any weapon of mass destruction in terms section 1 of the Non-Proliferation of Weapons of Mass Destruction Act, including those with dual-purpose capabilities as defined in section 1 of the Non-Proliferation of Weapons of Mass Destruction Act, or any substance, mixture of substances, product or material contem-plated in section 2(1) of the Hazardous Substances Act; |
| (iii) | endangers the life of, or violates the physical integrity or physical freedom of, or causes serious bodily injury to or the death of, any person, or any number of persons; |
| (iiiA) | is calculated to overthrow the government of the Republic or any other government; |
| (iv) | causes serious risk to the health or safety of the public or any segment of the public; |
| (v) | causes the destruction of or substantial damage to any property, natural resource, or the environmental or cultural heritage, whether public or private; |
| (vA) | causes the destruction of or substantial damage or interfer-ence to an information infrastructure or any part thereof; |
| (vi) | is designed or calculated to cause serious interference with or serious disruption of an essential service, facility or system, or the delivery of any such service, facility or system, whether public or private, including, but not limited to— |
| (aa) | a system used for, or by, an electronic system, including an information system; |
| (bb) | a telecommunication service or system; |
| (cc) | a banking or financial service or financial system; |
| (dd) | a system used for the delivery of essential government services; |
| (ee) | a system used for, or by, an essential public utility or transport provider; |
| (ff) | an essential or critical infrastructure, information infrastructure, or critical infrastructure complex; or |
| (gg) | any essential service designated as such in terms of the Labour Relations Act, 1995 (Act No. 66 of 1995), or essential emergency services, such as police, medical or civil defence services; |
| (vii) | causes any major economic loss or extensive destabilisation of an economic system or substantial devastation of the national economy of a country; |
| (viii) | creates a serious public emergency situation or a general insurrection in the Republic; or |
| (ix) | is the offence of— |
| (aa) | unlawful access in terms of section 2 of the Cybercrimes Act; |
| (bb) | unlawful interception of data in terms of section 3 of the Cybercrimes Act; |
| (cc) | unlawful interference with data or a computer program in terms of section 5 of the Cybercrimes Act; |
| (dd) | unlawful interference with a computer data storage medium or a computer system in terms of section 6 of the Cybercrimes Act; |
| (ee) | unlawful acquisition, possession, provision, receipt or use of a password, access code or similar data or device in terms of section 7 of the Cybercrimes Act; |
| (ff) | unlawful use or possession of a software or hardware tool for purposes of committing the offences listed in items (aa) to (ee); or |
| (gg) | cyber extortion in terms of section 10 of the Cybercrimes Act, |
whether the harm contemplated in subparagraphs (i) to (vii) is or may be suffered in or outside the Republic, and whether the activity referred to in subparagraphs (ii) to (ix) was committed by way of any means or method; and
| (b) | which is intended, or by its nature and context, can reasonably be regarded as being intended, in whole or in part, directly or indirectly, to— |
| (i) | threaten the unity and territorial integrity of the Republic; |
| (ii) | intimidate, or to induce or cause feelings of insecurity within, the public, or a segment of the public, with regard to its security, including its economic security, or to induce, cause or spread feelings of terror, fear or panic in a civilian population; |
| (iii) | unduly compel, intimidate, force, coerce, induce or cause a person, a government, the general public or a segment of the public, or a domestic or an international organisation or body or intergovernmental organisation or body, to do or to abstain or refrain from doing any act, or to adopt or abandon a particular standpoint, or to act in accordance with certain principles; or |
| (iv) | further the objectives of an entity engaged in terrorist acitivity, |
whether the public or the person, government, body, or organisation or institution referred to in subparagraphs (ii) or (iii), as the case may be, is inside or outside the Republic;
[Definition substituted by the Protection of Constitutional Democracy against Terrorism and related activities Amendment Act, 2022, by section 1(r) of Notice No. 1533, G47803, dated 29 December 2022]
means any act or activity related to or associated or connected with the commission of the offence of terrorism, or an offence associated or connected with a terrorist activity, or a Convention offence, or an offence referred to in sections 11 to 14.
| (2) | For purposes of this Act, "act" includes "omission". |
| (3) | For the purposes of paragraph (a) (vi) and (vii) of the definition of "terrorist activity", any act which is committed in pursuance of any advocacy, protest, dissent or industrial action and which does not intend the harm contemplated in paragraph (a) (i) to (v) of that definition, shall not be regarded as a terrorist activity within the meaning of that definition. |
| (4) | [Subsection 4 deleted by the Protection of Constitutional Democracy against Terrorism and related activities Amendment Act, 2022, by section 1(s) of Notice No. 1533, G47803, dated 29 December 2022] |
| (5) | Notwithstanding any provision in any other law, a political, philosophical, ideological, racial, ethnic, religious or any similar motive, shall not be considered for any reason, including for purposes of prosecution or extradition, to be a justifiable defense in respect of an offence of which the definition of 'terrorist activity' forms an integral part. |
[Subsection 5 substituted by the Protection of Constitutional Democracy against Terrorism and related activities Amendment Act, 2022, by section 1(t) of Notice No. 1533, G47803, dated 29 December 2022
| (6) | For the purposes of this Act a person has knowledge of a fact if— |
| (a) | the person has actual knowledge of that fact; or |
| (b) | the court is satisfied that— |
| (i) | the person believes that there is a reasonable possibility of the existence of that fact; and |
| (ii) | he or she fails to obtain information to confirm the existence of that fact. |
| (7) | For the purposes of this Act a person ought reasonably to have known or suspected a fact if the conclusions that he or she ought to have reached, are those which would have been reached by a reasonably diligent and vigilant person having both— |
| (a) | the general knowledge, skill, training and experience that may reasonably be expected of a person in his or her position; and |
| (b) | the general knowledge, skill, training and experience that he or she in fact has. |