Equipo Nizkor - South Africa: Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act, 2006.

THE PRESIDENCY

No. 1083 16 November 2007

It is hereby notified that the President has assented to the following Act, which is hereby published for general information-

No. 27 of 2006: Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act, 2006.

GENERAL EXPLANATORY NOTE:
________ Words underlined with a solid line indicate insertions in existing enactments.

(English text signed by the President.)
(Assented to 12 November 2007.)

ACT
To prohibit mercenary activity; to regulate the provision of assistance or service of a military or military-related nature in a country of armed conflict; to regulate the enlistment of South African citizens or permanent residents in other armed forces; to regulate the provision of humanitarian aid in a country of armed conflict; to provide for extra-territorial jurisdiction for the courts of the Republic with regard to certain offences; to provide for offences and penalties; and to provide for matters connected therewith.

PREAMBLE

WHEREAS the Constitution of the Republic of South Africa, 1996, provides in section 198(b) that the resolve to live in peace and harmony precludes any South African citizen from participating in armed conflict, nationally or internationally, except as provided for in the Constitution or national legislation;

AND WHEREAS it is necessary to prohibit mercenary activity in order to give effect to the values in our Constitution and our international obligations;

AND WHEREAS it is also necessary, in the interest of promoting and protecting human rights and fundamental freedoms, universally, to regulate the enlistment of South African citizens and permanent residents in other armed forces and to regulate the provision of military and military-related assistance or services by South African juristic persons, citizens, persons permanently resident in the Republic and in certain circumstances, foreign citizens,

BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as follows:–

Definitions and interpretation

1. (1) In this Act, unless the context indicates otherwise–

"armed conflict" includes any–

(a) situation in a regulated country proclaimed as such in terms of section 6; and

(b) armed conflict in any other country which has not been so proclaimed, between–

(i) the armed forces of such country and dissident or rebel armed forces or other armed groups;

(ii) the armed forces of any states;

(iii) armed groups;

(iv) armed forces of any occupying power and dissident or rebel armed forces or any other armed group; or

(v) any other combination of the entities referred to in subparagraphs (i) to (iv);

"assistance or service" includes–

(a) any form of military or military-related assistance, service or activity;

(b) any form of assistance or service to a party to an armed conflict by means of–

(i) advice or training;

(ii) personnel, financial, logistical, intelligence or operational support;

(iii) personnel recruitment;

(iv) medical or para-medical services; or

(v) procurement of equipment; or

"Committee" means the National Conventional Arms Control Committee, established in terms of section 2 of the National Conventional Arms Control Act, 2002 (Act No. 41 of 2002)

"Defence Force" means the South African National Defence Force contemplated in section 11 of the Defence Act, 2002 (Act No. 42 of 2002);

"person" means a person who is a citizen of, or is permanently resident in, the Republic, a juristic person registered or incorporated in the Republic, or any foreign citizen who contravenes this Act within the borders of the Republic;

"prescribed" means prescribed by regulation made in terms of section 12;

"register" means the register referred to in section 8;

"regulated country" means a country contemplated in section 6;

"security services" means one or more of the following services or activities:

(a) Protection or safeguarding of an individual, personnel or property in any manner;

(b) giving advice on the protection or safeguarding of individuals or property;

(d) providing a reactive or response service in connection with the safeguarding of persons or property in any manner;

(e) providing security training or instruction to a security service provider or prospective security service provider;

(f) installing, servicing or repairing security equipment;

(g) monitoring signals or transmissions from security equipment;

(h) making a person or service of a person available, directly or indirectly, for the rendering of any service referred to in paragraphs (a) to (g); or

(i) managing, controlling or supervising the rendering of any of the services referred to in paragraphs (a) to (h); "this Act" includes the regulations.

(2) Despite this Act or any other law, no act may be construed as assistance or service if such act is–

(a) in accordance with the principles of international law, especially international humanitarian law, including the purposes and principles of the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States; or

(b) performed by the security services, as contemplated in section 199 of the Constitution of the Republic of South Africa, 1996, either in fulfillment of international obligations or in terms of any other law.

Prohibition of mercenary activity

2. (1) No person may within the Republic or elsewhere–

(a) participate as a combatant for private gain in an armed conflict;

(b) directly or indirectly recruit, use, train, support or finance a combatant for private gain in an armed conflict;

(i) an armed conflict; or

(ii) a coup d'état, uprising or rebellion against any government; or

(d) directly or indirectly perform any act aimed at overthrowing a government or undermining the constitutional order, sovereignty or territorial integrity of a state.

(2) Any person who contravenes subsection (1) is guilty of an offence.

Prohibition and regulation of certain assistance or rendering of services in country of armed conflict or regulated country

3. (1) No person may within the Republic or elsewhere–

(a) negotiate or offer to provide any assistance or render any service to a party to an armed conflict or in a regulated country, unless such a person has been granted authorisation in terms of section 7 to negotiate or offer such assistance or service;

(b) provide any assistance or render any service to a party to an armed conflict or in a regulated country, unless such assistance is provided or such service is rendered in accordance with an agreement or arrangement authorised in terms of section 7;

(c) recruit, use, train, support or finance any person to provide assistance or render any service to a party to an armed conflict or in a regulated country, unless such person has been authorised in terms of section 7 to recruit, use, train, support or finance such a person;

(d) recruit, use, train, support or finance any person to provide assistance or render a service to a party to an armed conflict or in a regulated country unless such a person is recruited, used, trained, supported or financed in accordance with an agreement or arrangement authorised in terms of section 7; or

(e) perform any other act that has the result of furthering the military interests of a party to an armed conflict or in a regulated country, unless such a person has been authorised in terms of section 7.

(2) Any person who contravenes subsection (1) is guilty of an offence.

Prohibition and regulation of enlistment of South Africans in armed forces

4. (1) No South African citizen or permanent resident may enlist with any armed force, other than the Defence Force, including an armed force of any foreign state, unless he or she has been authorised in terms of section 7.

(2) Subject to section 7(5) and (6), an authorisation granted in terms of section 7 may be revoked if the person to whom the authorisation has been granted takes part in an armed conflict as a member of an armed force other than the Defence Force and such authorisation contravenes any one of the criteria listed in section 9.

Prohibition and regulation of humanitarian assistance in country of armed conflict

5. (1) No South African humanitarian organisation may provide humanitarian assistance in a country where there is an armed conflict or a regulated country, unless such organisation has been registered with the Committee for that purpose.

(2) An organisation referred to in subsection (1) must submit to the Committee an application for registration in the prescribed form and manner.

Proclamation of regulated country

6. (1) The Committee must inform the National Executive, whenever it is of the opinion that–

(a) an armed conflict exists or is imminent in any country; and

(b) such a country should be proclaimed to be a regulated country.

(2) After the Committee has informed the National Executive in the manner contemplated in subsection (1), the President, as Head of the National Executive, may, by proclamation in the Gazette, proclaim a country as a regulated country.

(3) The President must notify Parliament of any proclamation issued in terms of subsection (2).

(4) This Act applies in a regulated country.

Application for authorisation

7. (1) Any person who applies for an authorisation referred to in section 3(1)(a) to (e) or section 4(1) must submit to the Committee an application for authorisation in the prescribed form and manner.

(2) The Committee must consider any application for authorisation submitted in terms of subsection (1), and, subject to section 9, may–

(a) refuse the application;

(b) grant the application subject to such conditions as it may determine; or

(3) No authorisation granted in terms of this section is transferable.

(4) The prescribed fees in respect of an application for authorisation must be paid before the Committee makes its decision known.

(5) Any person who feels aggrieved by a decision taken in terms of this section, may apply for written reasons in the manner contemplated in section 5 of the Promotion of Administrative Justice Act, 2000 (Act No. 3 of 2000).

(6) Nothing in this Act must be construed as preventing a person from instituting proceedings in a competent court for judicial review.

Register of declarations, authorisations and exemptions

8. (1) The Committee must maintain a register of any–

(a) authorisation issued by the Committee, in terms of section 7(2);

(b) proclamation made by the President, in terms of section 6;

(d) South African humanitarian organisations registered by the Committee, in terms of section 5; and

(e) South African citizens or permanent residents enlisted with an armed force whose enlistment is authorised by the Committee in terms of section 4.

(2) The Committee must submit quarterly reports to the National Executive and Parliament with regard to the register.

Criteria for authorisation or exemption

9. An authorisation in terms of section 7(2), and exemption in terms of section 13, may be given, unless it–

(a) is in conflict with the Republic's obligations in terms of international law;

(b) would result in the infringement of human rights and fundamental freedoms in the territory where the assistance or service is to be rendered or the exemption granted;

(c) endangers the peace by introducing destabilising military capabilities into the region or territory where the assistance or service, or humanitarian aid, is or is likely to be, provided or rendered;

(d) would contribute to regional instability or negatively influence the balance of power in such region or territory;

(e) in any manner supports or encourages any terrorist activity or terrorist and related activities, as defined in section 1 of the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004 (Act No. 33 of 2004);

(f) contributes to the escalation of regional conflicts;

(g) in any manner initiates, causes or furthers an armed conflict, or a coup d'etat, uprising or rebellion against a government; or

(h) prejudices the Republic's national or international interests.

Offences and penalties

10. (1) A person who contravenes or fails to comply with section 4(I) or section 5, or contravenes or fails to comply with a condition determined in respect of an application in terms of section 7(2)(b) or section 13 is guilty of an offence and liable upon conviction to a fine or to imprisonment, or to both a fine and imprisonment.

(2) A person referred to in section 15(2) who fails to apply for the authorisation within the period referred to in that subsection, and remains so enlisted, is guilty of an offence and liable, upon conviction, to a fine or to imprisonment or to both a fine and imprisonment.

(3) The court may, when convicting any person of an offence under this Act declare any armament, weapon, vehicle, uniform, equipment or other property or object in respect of which the offence was committed or which was used for, in or in connection with the commission of the offence, to be forfeited to the State in the manner contemplated in section 35 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977).

Extra-territorial jurisdiction

11. (1) Any act constituting an offence under this Act and that is committed outside the Republic by–

(a) a citizen of the Republic;

(b) a person ordinarily resident in the Republic;

(d) any body of persons, corporate or unincorporated, in the Republic,

must be regarded as having been committed in the Republic and the person who committed it may be tried in a court in the Republic which has jurisdiction in respect of that offence.

(2) (a) Any act that constitutes an offence under section 2 of this Act and that is committed outside the Republic by a person, other than a person contemplated in subsection (1), against the Republic, its citizens or residents must be regarded as having been committed in the Republic if that person is found in the Republic.

(b) A person contemplated in paragraph (a) may be tried for such an offence by a South African court if there is no application for the extradition of the person or if such an application has been refused.

(3) Any offence contemplated in subsection (1) or (2), is, for the purpose of determining the jurisdiction of a court to try the offence, regarding as having been committed at–

(a) the place where the accused is ordinarily resident;

(b) the accused's principal place of business; or

(4) Where a person is charged with conspiracy or incitement to commit an offence or as an accessory after the fact, the offence is regarded as having been committed not only at the place where the act was committed, but also at every place where the conspirator, inciter or accessory acted or in the case of an omission, should have acted.

Regulations

12. (1) The President as Head of the National Executive, may make regulations relating to–

(a) any matter which is required or permitted in terms of this Act to be prescribed;

(b) the consideration of an application for an authorisation in terms of section 7(2);

(d) generally any other ancillary or incidental administrative or procedural matter which it may be expedient or necessary to prescribe for the proper implementation or administration of this Act.

(2) A regulation may prescribe a penalty of a fine or of imprisonment for a period not exceeding five years, or both a fine and such imprisonment, for any contravention thereof or any failure to comply therewith.

Exemptions

13. The President as Head of the National Executive may, subject to section 9, upon request in the prescribed form and manner, exempt any humanitarian aid organisation from the provisions of section 5 of this Act, if such exemption would facilitate the rendering of humanitarian aid, without delay, in order to relieve the plight of civilians in an armed conflict, and subject to such conditions as he or she may determine.

Amendment and repeal of laws

14. (1) The Criminal Law Amendment Act, 1997 (Act No. 105 of 1997), is hereby amended to the extent set out in the Schedule.

(2) The Regulation of Foreign Military Assistance Act, 1998 (Act No. 15 of 1998), is hereby repealed.

Transitional provisions

15. (1) Any authorisation or approval granted in terms of the Regulation of Foreign Military Assistance Act, 1998 (Act No. 15 of 1998), remains in force and effect until withdrawn or amended or until expiry of the term for which it was granted,

(2) (a) A citizen of the Republic or a person ordinarily resident in the Republic who, at the time of the commencement of this Act, had already been enlisted in an armed force, must within six months of the date of commencement of this Act, apply for authorisation in the manner required by section 7; and

(b) If a citizen or person contemplated in paragraph (a), filed an application for authorisation within the period provided for in that paragraph, the citizen or person may remain so enlisted until the application is decided.

(3) (a) Any person who, at the time of the commencement of this Act, is involved in the activities contemplated in section 3(1)(a) to (e) that did not constitute an offence under the Regulation of Foreign Military Assistance Act, 1998 (Act No. 15 of 1998), must within six months of the date of commencement of this Act, apply for authorisation in the manner required by section 7.

(b) If a person contemplated in paragraph (a) filed an application for authorisation within the period provided for in that paragraph, the person who conducts that activity may continue with the activity until the application is decided.

(4) All formal hearings and court proceedings instituted, prior to the commencement of this Act, in terms of the Regulation of Foreign Military Assistance Act, 1998, and that have not been concluded before the commencement of this Act, must be continued with and concluded as if this Act had not been passed.

Short title and commencement

16. This Act is called the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act, 2006, and comes into operation on a date determined by the President by Proclamation in the Gazette.

SCHEDULE

AMENDMENT OF SCHEDULE 2 TO CRIMINAL LAW AMENDMENT ACT, 1997 (ACT NO. 105 OF 1997)

(Section 14)

No. and Year of Act Short Title Extent or Amendment

No. 105 of 1997 Criminal Law Amendment Act 1. The addition to Part I of Schedule 2 of the following item:

"Any offence referred to in section 2 of the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act, 2006;"

2. The addition to Part 11 of Schedule 2 of the following item:

"Any offence referred to in section 3 of the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act. 2006.".

12Nov07 - ZAF

Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act, 2006

[Source: Government Gazette, No. 30477, Vol. 509, South Africa, 16 November 2007]

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