FOR SA Successfully Defuses Problematic Clauses in Proposed Anti-Terrorism Legislation

by Michael Swain
6 December 2022

Government introduces legislation to avoid “grey listing”
In 2021, the Financial Action Task Force (FATF), an international body responsible for setting the international standards that countries should implement to prevent money laundering and terrorist financing, threatened to “grey list” South Africa for not having sufficiently robust laws in place to prevent international terrorism from being e.g. financed from SA.  If South Africa is “grey-listed”, it will lead to higher costs for businesses and individuals to have bank and investment accounts abroad and make it more difficult for individuals and organisations to send/receive money internationally.  In response – and very late in the day – Government introduced two Bills before Parliament – the “Anti-Money Laundering Bill” and the “Terrorism and Related Activities Bill”, both of which are problematic in the unintended consequences which could adversely impact and unnecessarily burden religious organisations in particular.

FOR SA intervention results in positive amendments to the Anti Money Laundering Bill
The Anti Money Laundering Bill will effectively amend the Nonprofit Organisations Act, 1997. Here it is important to note that many religious organisations are voluntary associations, or are trusts and NPCs, and will therefore fall within the NPO Act’s definition of NPO. Some of the changes proposed by the Bill to the NPO Act, which up till now has not required mandatory registration of NPOs, are that NPOs which donate money or provide humanitarian, charitable, religious, educational or cultural services to overseas entities MUST be registered with the Department of Social Development (DSD) as NPOs.  This will also mean adhering to the rest of the Act’s requirements placed on registered NPOs, such as the filing of narrative reports etc. with the DSD, which will add a greater administrative and financial burden.

FOR SA was concerned that failure to register as an NPO under the NPO Act was originally going to be a criminal offence.  We were equally concerned that the initial draft of the Bill potentially infringed upon the internal procedures and processes of faith-based organisations.  The NPO Act says that the DSD may ask for changes to certain aspects of the constitution of an entity seeking NPO registration, which could include (e.g.) membership, leadership etc. We lobbied hard for the Bill to expressly state that the State should not interfere with the NPO’s constitution because this could directly infringe on their religious freedom right to e.g. define membership requirements. 

FOR SA made submissions and gave a presentation to Parliament to express our concerns about the impact this law could have on religious freedom.  This resulted in the changes now incorporated in the latest version of the Bill where – in the draft currently in front of Parliament’s second house – only administrative sanctions will be imposed for failing to (e.g.) register etc. and no religious organisation will be forced to amend its constitution. However, the NPO Amendment Bill – which is currently still before the Department of Social Development – will make registration compulsory if you want to operate, so there is certainly a push by Government to ensure that charitable and civic organisations are properly registered.

FOR SA’s submission results in the removal of criminal sanctions for “terrorism-related content
The “Terrorism and Related Activities Bill” is also potentially problematic for two primary reasons. Its wide proposed definition of “terrorist activity” runs over two (2) pages in length and contains numerous broad and vague phrases that are potentially open to abuse. For example, it is problematic that no specified criteria for either a “serious public emergency” or a “general insurrection” are listed. Neither are these instances defined.  This vagueness opens up the possibility for abuse, which is concerning given that civil society organisations have recently been labelled by Government as “instigating terrorism” and/or “sabotage”. An unintended consequence of the Bill could criminalise the voices of those opposing Government actions and/or curb civil society’s dialogue and actions in what is a participatory democracy.

The second area of concern was that, in its original draft, the Bill proposed the criminalisation of possession and distribution of whatever is deemed to be “terrorism-related content”, a new crime for which the Bill proposed a jail sentence of up to five (5) years.  Given the role that the religious community plays in keeping the State accountable, FOR SA was very concerned that this would have the effect of muzzling or even sanctioning religious organisations and communities who may criticise Government actions and/or its decisions.  Even online/social media sharing of any content from organisations and/or people labelled as being involved in “terrorist activity” was criminalised.  

However, the good news is that Parliament chose to scrap this proposed new crime completely as a direct result of FOR SA’s legal submission.  Although the definition of “terrorist activity” still remains overly broad, FOR SA will keep working to narrow this down as the Bill now works its way through Parliament’s second house, the National Council of Provinces.

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Michael Swain

Michael Swain has been a successful businessman and also spent over 30 years in Christian ministry. He serves as FOR SA’s Executive Director and its (primary) media spokesperson. See full bio here.

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