South Africa

The Definition of Terrorism in Domestic Law

The definition of terrorism was significantly amended in 2022. The Protection of Constitutional Democracy Against Terrorist and Related Activities Act of 2004 defined a "terrorist activity" as:

a)    Any act committed within or outside of the Republic which – 

i)    involves the systematic, repeated or arbitrary use of violence by any means or method; or 

ii)    involves the systematic, repeated or arbitrary release into the environment or any part of it or disturbing or exposing the public or any part of it to – any dangerous,  hazardous, radioactive or harmful substance or organism, any toxic chemical, or any microbial or other biological agent or toxin; or

iii)  endangers the life, 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; or

iv)    causes serious risk to the health or safety of the public or any segment of the public; or 

v)    causes the destruction of or substantial damage to any property, natural resource or the environmental or cultural heritage, whether public or private; or 

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 – an electronic system, including an information system, a telecommunication service or system, a banking or financial service or financial system, a system used for the delivery of essential government services, a system used for or by an essential public utility or transport provider, an essential infrastructure facility, or any essential emergency services, such as police, medical or civil defence services; or 

vii)    causes any major economic loss or extensive destabilisation of an economic system or substantial devastation of the national economy of a country; or 

viii)    creates a serious public emergency situation or a general insurrection in the Republic;

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; or

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, whether the public or the person, government, body, or organisation referred to in subparagraphs (ii) or (iii), as the case may be, is inside or outside the Republic; and 

c)  Which is committed, directly or indirectly, in whole or in part, for the purpose of  the advancement of an individual or collective political, religious, ideological or philosophical motive, objective, cause or undertaking.S. 1(1)(xxv), 2004 Terrorism Act.

The 2022 PODACTARA Amendment Act has removed the need for proof of the motive or cause as set out in subparagraph (c). The defence was also deleted of:

any act committed during a struggle waged by peoples, including any action during an armed struggle in the exercise or furtherance of their legitimate right to national liberation, self- determination and independence against colonialism, or occupation or aggression or domination by alien or foreign forces. in accordance with the principles of international law, especially international humanitarian law.S. 1(3), 2004 Terrorism Act.

Also an offence is the act of unlawful access or interception of electronic data and unlawful interference with data or a computer programme. 

There remains, however, an explicit exception to terrorist activity for "any act which is committed in the 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".S. 1(3), 2004 Terrorism Act.

Adherence to Global and Regional Terrorism Treaties

South Africa is a State Party to all of the main United Nations treaties on terrorism.

South Africa is also a State Party to the main regional treaties on terrorism.

Laws and Penalties for Terrorist Offences

The maximum penalty for serious terrorist offences such as hijacking or bombings is life imprisonment. The maximum penalty for anyone convicted of association with or support of terrorist entity/activity or harbouring a person who has committed a terrorist offence is imprisonment for fifteen years. The same maximum exists for financing terrorism or a terrorist entity.

The maximum penalty for providing false information relating to an explosive or lethal device is imprisonment for ten years. For a failure to report a person suspected of committing a terrorist offence up to five years imprisonment is the maximum penalty.

Under the 2004 Act, no prosecution for terrorism may be instituted without the written authority of the National Director of Public Prosecutions. Once the 2022 Terrorism Amendment Bill is passed into law, however, an exception will exist for a prosecution for providing false terrorist warning that is not linked to any other offence under the Act. 

Counterterrorism Capacities and Policies at Domestic Level

The Directorate for Priority Crime Investigation’s (DPCI) "Crimes Against the State" (CATS) Unit within the South African Police Service (SAPS) and the State Security Agency (SSA) is tasked with detecting, combatting, and preventing acts of terrorism. The Special Task Force (STF), a specialised police tactical unit of SAPS, is dedicated towards handling high-risk operations, including counterinsurgency, counterterrorism, and hostage rescue. 

Police officials of or above the rank of director may on written request to a judge in chambers apply for a warrant for the cordoning off, stopping and searching of vehicles and persons with a view to preventing terrorist or related activity. Under such a warrant, any police official who identifies himself or herself as such, may cordon off the specified area for the period specified (which may not exceed 10 days) and stop and search any vehicle or person in that area, for articles or things which could be used or have been used for or in connection with the preparation for or the commission or instigation of any terrorist or related activity, and may seize such articles or things.S. 24, 2004 Terrorism Act.The 2022 PODACTARA Amendment Act grants police officials of or above the rank of Brigadier to apply for a warrant (as set out above) for the cordoning off, stopping, and searching of vehicles and persons and premises with a view to preventing terrorist or related activity.

The 2022 PODACTARA Amendment Act inserts a new section which allows a member of the Directorate, of or above the rank of Brigadier, to apply to a High Court, by way of an ex parte application to a judge in chambers, for the issuing of an order to take down or disable access to an electronic communications service provider where the service is used to host a terrorism publication.