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[2016] ZASCA 155
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Okah v S and Others (19/2014) [2016] ZASCA 155; [2016] 4 All SA 775 (SCA); 2017 (1) SACR 1 (SCA) (3 October 2016)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 19/2014
In
the matter of:
HENRY
EMOMOTIMI
OKAH
APPELLANT
and
THE
STATE FIRST
RESPONDENT
NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS SECOND
RESPONDENT
THE
MINISTER OF
POLICE THIRD
RESPONDENT
THE
MINISTER OF INTERNATIONAL RELATIONS FOURTH
RESPONDENT
THE
MINISTER OF JUSTICE AND
CORRECTIONAL
SERVICES FIFTH
RESPONDENT
Neutral
Citation:
Okah
v S
(19/2014)
[2016] ZASCA 155
(3 October 2016)
Coram:
Navsa,
Shongwe, Dambuza and van der Merwe JJA and Schoeman AJA
Heard:
24
August 2016
Delivered:
3
October 2016
Summary:
Interpretation
and application of s 15 of the Protection of Constitutional Democracy
Against Terrorist and Related Activities Act
33 of 2004 :
extra-territorial jurisdiction : extent of.
ORDER
On
appeal from
:
South Gauteng High Court, Johannesburg (Claassen J sitting as court
of first instance) judgment reported
sub
nom S v Okah
2015 (2) SACR 561
(GJ):
1. The appeal is upheld
to the extent reflected in the substituted order of the court below,
set out hereafter.
2. In respect of
conviction, the order of the court below is set aside and substituted
as follows:
‘
The
appellant is convicted on counts 2, 4, 6, 8, 9, 10, 11 and 12.’
3. In respect of
sentence, the order of the court below is set aside and substituted
as follows:
‘
Counts
2, 4, 6, 8, 10 and 12 are taken together for purposes of sentence and
the accused is sentenced to 12 years’ imprisonment.
Counts
9 and 11 are taken together for purposes of sentence and the accused
is sentenced to 8 years’ imprisonment.
The
effective sentence is thus 20 years’ imprisonment.’
JUDGMENT
Navsa
and Van der Merwe JJA (Shongwe & Dambuza JJA and Schoeman AJA
concurring)
[1]
This appeal concerns the prosecution on criminal charges, in the
South Gauteng High Court, Johannesburg, of the appellant, a
Nigerian
citizen who has permanent residence status in South Africa. The
prosecution followed on two separate bombings in Nigeria,
as a result
of which 12 people were killed, 64 severely injured and property was
damaged. It was alleged by the State that the
appellant, Mr Henry
Okah, had been involved in the planning and execution of these
bombings.
[2]
During 2005, the appellant had made the Republic of South Africa his
principal place of residence and was granted permanent
residency
status on 13 March 2007. He was arrested in South Africa on 2 October
2010 and was charged with 13 counts under the Protection
of
Constitutional Democracy Against Terrorist and Related Activities Act
33 of 2004 (the Act). The first 12 counts were related
to bombings
that occurred in Nigeria: at Government House Annex, Warri, on 15
March 2010 and Eagle Square, Abuja on 1 October 2010.
Count 13
alleged that the appellant had threatened certain South African
entities that were commercially active in Nigeria with
destabilising
terrorist activities.
[3]
The court below (Claassen J), in its judgment, at the outset, posed
the following question: ‘One may well ask: Why is
the accused
being tried in a South African Court?’ It answered the question
by reference to a number of international conventions
adopted by the
United Nations General Assembly
[1]
and the Organisation of African Unity,
[2]
in respect of which South Africa was a signatory, and a resolution by
the United Nations Security Council,
[3]
in response to international terrorism, and the resultant enactment
by the legislature of the Act, which ostensibly enables
extra-territorial
prosecution of criminal offences comprising acts of
terrorism
and
related activities. The counts in question, based on the provisions
of the Act, range from engaging in terrorist activities
to
delivering, placing and or detonating explosives causing death and
serious bodily injury, to attempts to cause harm to internationally
protected persons and financing terrorist activities. The indictment
contained a number of alternative counts. We shall, in due
course,
explore our law in relation to extra-territorial jurisdiction. We
will also deal with the specific counts when we engage
in determining
whether the convictions set out below were well founded.
[4]
Claassen J undertook an examination of the Act, and specifically
considered s 15, dealing with ‘jurisdiction’,
and
was satisfied that the court was competent to try the appellant on
all the counts in the indictment.
[5]
The court below had regard to certain admissions by the appellant and
to the common cause facts. It was not disputed that the
bombings had
occurred in Warri and Abuja in Nigeria on 15 March 2010 and 1 October
2010 respectively, and were caused on each occasion
by two
explosive-laden vehicles being detonated remotely. It is common
cause, as described earlier, that as a result of the Warri
and Abuja
bombings, several people died, many suffered bodily injury, and
property was damaged.
[6]
It was uncontested that the appellant was a leader of the Movement
for the Emancipation of the Niger Delta (MEND) during 2010
and that
he had in the past supplied arms and ammunition to that organisation.
It was accepted during the trial that MEND had claimed
responsibility
for the two bombings.
[7]
MEND appears to have its origins in an uprising by people of the
oil-rich region of the Niger Delta,
[4]
against what appears to have been regarded as the Nigerian
government’s lack of concern about the severe degradation of
the environment and the lack of benefit to the local population from
oil revenue. Antagonisms also appear to have arisen from
dispossession
of land due to commercial activity linked to
exploitation of oil deposits. A number of militant groups had
attacked oil pipelines
that served foreign oil companies. Executives
of those companies were kidnapped and held for ransom. Ultimately,
the militant groups
united under MEND’s umbrella and waged an
armed struggle against the Nigerian government.
[8]
It is necessary to record that the former President of Nigeria, Mr
Goodluck Jonathan (who was the president of Nigeria when
the Abuja
bombing occurred) himself came from the southern regions of Nigeria
where MEND operated. His predecessor, President Umaru
Musa
Yar’Adua,
[5]
who was the
President of Nigeria during the Warri bombing, had initiated an
amnesty programme in 2009 which, inter alia, involved
the voluntary
surrender of arms and ammunition by armed MEND militants and other
rebel factions associated with the conflict in
the Niger Delta. One
of the conditions in negotiating the amnesty with the militants was
that the appellant as leader of MEND,
who was in custody at that time
on charges of treason and gun-running, should be released.
[9]
During July 2009 the appellant accepted an offer of amnesty extended
to him by the Nigerian government. In so doing the appellant
also
offered to work with the Nigerian government towards the restoration
of peace in the Niger Delta region. He was released as
a result of
the amnesty. It would appear that the appellant had subsequently
become increasingly dissatisfied with post-amnesty
conditions in the
oil-rich regions of southern Nigeria. After his release, during
August 2009, the appellant returned to South
Africa. As stated
earlier, the he was arrested in South Africa on 2 October 2010 on the
counts he faced in the court below.
[10]
We return to the trial in the court below where Claassen J took the
view that the evidence led to the following ineluctable
conclusions:
(i) the appellant had
acted as a spokesperson for MEND and used the pseudonym ‘Jomo
Gbomo’ in e-mails to and correspondence
with the media;
(ii) shortly before the
Warri bombing he had entered Nigeria unlawfully from Benin, that is,
not at an official point of entry;
(iii) the two bombings
were caused by motor vehicles laden with explosives, and the make of
at least three of the four motor vehicles
had been identified;
(iv) MEND had accepted
responsibility for the bombings which had caused death and
destruction and which fell within the definition
of ‘terrorist
activities’ and the offence of terrorism in the Act;
(v) a number of people
who had attended gatherings at Warri and Abuja fell within the
definition of ‘internationally protected
person’ in the
Act; and
(vi) the buildings
damaged during the bombing fell within the definition ‘state or
government facility’ in the Act.
[11]
Claassen J had regard to the evidence by key witnesses for the State
in relation to the Warri bombing on 15 March 2010, from
which it
appeared that the appellant, who was in Nigeria at the time, had
given instructions to a Nigerian national, Mr Obi Nwabueze,
for the
purchase of two vehicles to be used to detonate explosives. The
appellant had arranged for hidden compartments to be constructed
within those vehicles. The appellant had also provided money for the
purchase of the explosives and detonators, and for the construction
of the compartments. In addition, the appellant had supplied the
timing devices for use in the explosives, being clocks and/or
mobile
phones. The appellant had also demonstrated how the detonators were
to be attached to the explosives.
[12]
At the instance of the appellant, the location at Government House
Annex, Warri, was chosen because it was where the Vanguard
Newspaper
had scheduled a post-amnesty dialogue meeting. That meeting intended
to explore such issues as skills acquisition and
training programs
for the former militants; strategies to reconstruct the communities
devastated by militant activities and oil
pollution; rehabilitation
programs for such militants; disarmament and amnesty; bunkering and
economic sabotage; resource control;
demilitarisation of the Niger
Delta; and the security, economic development and peace in that area
in general. The Minister of
the Niger Delta, the Delta State
Governor, the Imo State Governor, the Edo State Governor and other
State officials were present.
During the course of the morning, Jomo
Gbomo, on behalf of MEND, sent a warning via the internet, that a
bomb would be detonated
in the vicinity of Government House Annex.
The appellant had given instructions to operators to park the
vehicles inside the venue,
but due to there being a school directly
adjacent to the venue and security being tight, they chose instead to
park close to the
entrance of the venue, and have the explosives
detonated there. The appellant was, according to the evidence, still
in Nigeria
immediately after the explosion.
[13]
In relation to the Abuja bombing on 1 October 2010, the following
evidence was adduced. The planning and the instructions for
the
bombing took place in South Africa. The appellant telephonically
planned the bombing, and chose Abuja as the location because
of the
celebration of Nigeria’s 50
th
National Independence
Day. The appellant was the driving force behind the bombing, and sent
money to his accomplices for the purchase
of equipment for the
bombing. He had also sent timing devices from South Africa. Former
Nigerian President Goodluck Jonathan and
foreign dignitaries and
Nigerian state officials were in attendance to celebrate the
Independence Day anniversary.
[14]
In respect of both the Warri and Abuja bombings, two sets of
explosives had been utilised, and timing devices had been used
to
delay the detonation of the second explosion until some time after
the first explosion. The intention was that a crowd would
be
attracted to the site of the first explosion, which would then be
caught in the blast zone of the second explosion, resulting
in
maximum injury and death.
[15]
In relation to count 13, the State relied on a communiqué –
an e-mail – on 27 January 2012, from one Mr
Peter Timi (Timi),
proclaiming himself to be the European representative of MEND,
threatening the commercial interests of South
African companies
operating in Nigeria. The court below also had regard to a similar
threat uttered by the appellant on 30 January
2012 to the
investigating officer.
[16]
In the court below, the appellant’s legal representative denied
that he had been involved in the terrorist activities
alleged by the
State and suggested, when his legal representative cross-examined
witnesses, that he had been the victim of a conspiracy
between them
and the Nigerian government to falsely implicate him. This was
rejected by Claassen J who held that no basis had been
laid for the
alleged conspiracy and said the following (para 64):
‘
On the contrary, many of the
State witnesses were the accused’s former accomplices who were
intimately involved with the actions
of the accused in planning and
executing the bombings in Warri and Abuja.’
The
appellant chose not to testify.
[17]
In the end, the court held that the material evidence, which it dealt
with in some detail, proved the appellant’s guilt
on counts 1
to 12. Claassen J said the following (paras 142 – 143):
‘
The evidence of the two main
accomplices is congruent and corroborates one another. There are no
contradictions or discrepancies
which may negatively affect their
testimony. . . The evidence of these witnesses overwhelmingly
established that the accused was
the planner, funder, supplier,
instructor, expert and leader in the execution of the bombings in
Warri and Abuja. Although he was
not present at the moment the car
bombs exploded, it cannot be gainsaid that they exploded at his
instance and direction. To my
mind that makes him guilty beyond all
reasonable doubt of the charges in counts 1 to 12 as the main
perpetrator.’
[18]
It is necessary, in relation to count 13, first, to have regard to
the e-mail by Timi containing the threat to South African
interests
in Nigeria, the relevant parts of which read as follows:
‘
27 January 2012
. . .
I am Mr Peter Timi the Europe
representative of the Movement for the Emancipation of the Niger
Delta (MEND). I have been mandated
to communicate our displeasure
over your country’s involvement through the South African
judiciary as it concerns our leader
Mr Henry Okah.
It was a shock when we learnt that the
trial of Mr Henry Okah was once again postponed till the 1st of
October 2012 which to us
is totally unacceptable.
We should remind you of the South
African investments in Nigeria such as the few stated below and we
will not hesitate to disrupt
their business activities and take the
South African nationals working for these companies hostage.
- Ethnix Designs
- Pepkoro Limited
- Standard Bank
- Nampak
- KPMG
- MTN
- Phillips Consulting
- Plessey
- Legacy Hotels
- Enterprise LG
- Dimension Data
- Johnnic Africa
- Pace Property
- Altech Namitech
- Sun International
- ABSA and Southern Sun
The South African Government through
her judiciary is hereby advised to within the next two weeks release
our leader or else the
South African citizens and companies will be
at risk. Don’t forget that no amount of Nigerian Government’s
security
guarantee can stop us.
We will carry out these ‘PROMISES’
to the letter, enough is enough.’
[19]
In relation to this e-mail, the court below also had regard to the
evidence of Mr Simon Kerry (Kerry), the group risk manager
for
Plessey (Pty) Ltd (Plessey), which installs and builds
telecommunications infrastructure for the telecommunications industry
in South Africa and other parts of the continent. Plessey employed
four South African nationals in Lagos, Nigeria. After receiving
the
e-mail referred to above, a discussion ensued with company executives
and it was accepted that there was cause for concern.
There was
communication with Dimension Data, another company whose interests
were threatened in the e-mail. Whilst not evacuating
their personnel,
both companies put contingency plans in place for rapid evacuation
should the need arise. There was no evidence
that the threats
materialised. As must by now be apparent, the appellant was in
custody in South Africa at the time that the e-mail
threat was made.
[20]
Finally, in relation to count 13, the court below took into account
the evidence of Colonel Noel Zeeman (Zeeman), the investigating
officer who had been called as a witness by the appellant. Zeeman
testified about a conversation he had engaged in with the appellant,
on 30 January 2012, in the reception area of the holding cells of the
court below. According to Zeeman, the appellant had complained
about
his exorbitant legal fees and then went on to say the following:
‘
South Africa is going to pay as
South Africa should not be involved in the matter and that was not
their problem. He went on further
to say that there was nothing
stopping him from attacking South African interests in Nigeria as he
is a warrior and will continue
fighting . . . .’
Zeeman
was subsequently made aware of the e-mail by Timi and saw a copy of
it.
[21]
In respect of count 13, Claassen J concluded as follows (para 300):
‘
I am satisfied that the State
proved beyond a reasonable doubt that the accused is also guilty on
count 13. The evidence of Kerry
and Zeeman is uncontroverted and
prove that the accused and/or one of his supporters, Timi, voiced
threats of danger to South African
companies and their employees
operating in Nigeria.’
[22]
Being cautious, Claassen J considered, in the event of his
conclusions in relation to the main charges being wrong, the
alternative
charges of conspiracy to commit those offences. The court
below had regard to case law on conspiracy and held that the evidence
clearly disclosed that the appellant had conspired with some or all
of the individuals mentioned in the indictment in counts 1
to 12.
[23]
Having convicted the appellant, the court below proceeded to sentence
the appellant as follows. In respect of the Warri bombing,
the
convictions on counts 1, 3, 5, 7, 9 and 11 were taken together for
sentencing, and the appellant received a sentence of 12
years’
imprisonment. In respect of the Abuja bombing, the convictions on
counts 2, 4, 6, 8, 10 and 12 were taken together,
and the appellant
was sentenced to a further 12 years’ imprisonment. In respect
of the conviction on count 13, the court
below imposed a sentence of
10 years’ imprisonment. The latter sentence was ordered to run
concurrently with the sentence
imposed in respect of counts 2, 4, 6,
8, 10 and 12 referred to above. Thus, the effective sentence was 24
years’ imprisonment.
[24]
The appellant applied for
leave to appeal against his convictions on counts 1 to 12,
principally on the basis that the court had
no jurisdiction to
adjudicate on those counts because they were acts of terrorism
committed beyond the borders of South Africa,
namely in Nigeria. A
secondary ground on which leave to appeal was sought was that there
had been a duplication of charges. In
respect of count 13, leave to
appeal was sought on the basis that no link could be established
between the appellant and the e-mail
threatening South African
interests in Nigeria. Claassen J made the following order:
‘
1. Leave is granted to the
Supreme Court of Appeal against this court’s finding that it
had jurisdiction in terms of Act 33
of 2004 to hear and adjudicate
counts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12.
2. The application for leave to appeal
the convictions on the merits of counts 3 to 8, based on an alleged
duplication of charges,
is dismissed.
3. Leave is granted to the Supreme
Court of Appeal against the conviction only on count 13.’
[25]
The appeal was first enrolled in this court for hearing on 26
November 2014. There had been no attack in the court below on
the
constitutionality of the provisions of the Act. For the first time,
in this court, counsel for the appellant sought to launch
an attack
on the constitutionality of the Act insofar as it purported to grant
a South African court extra-territorial jurisdiction.
After an
exchange between this court and counsel on behalf of the State and
the appellant, it was agreed that the matter be postponed
to enable
the responsible Minister, namely the Minister of Safety and Security,
to be given notice of the constitutional challenge.
Subsequently, an
order was obtained by the appellant in the high court in terms of
which the National Director of Public Prosecutions,
the Minister of
Police, the Minister of International Relations and Cooperation and
the Minister of Justice and Correctional Services
were joined as
parties to the appeal in this court.
[6]
[26]
Subsequently, the appellant filed an application to extend his
grounds of appeal, to include a constitutional challenge against
certain provisions of the Act. Before us, however, when the present
appeal was heard, the attack against the constitutionality
of the Act
was abandoned. Counsel on behalf of the appellant also accepted the
factual findings of the court below in relation
to counts 1 to 12.
Therefore, the only issues on appeal were (a), whether the court
below had jurisdiction to entertain any or
all of counts 1 to12, and,
(b), whether the evidence in the court below justified a conviction
on count 13. It is to those issues
that we now turn.
[27]
At the outset it is necessary to conduct a brief overview of our law
relating to jurisdiction prior to the introduction of
the Act.
Jurisdiction is an important aspect of the sovereignty of the State.
Sovereignty entitles a state to exercise its functions
within a
particular territory to the exclusion of other states. Jurisdiction
encompasses the authority that a state has to exercise
its functions
by legislation, executive and enforcement action, and judicial
decrees in relation to persons and property. In most
circumstances
the exercise of state power, as aforesaid, is limited to its own
territory.
[7]
It is a
fundamental principle that a state can assert its jurisdiction over
all criminal acts that occur within its territory and
over all
persons present in its territory, who are responsible for such acts,
whatever their nationality.
[28]
In
Kaunda & others v President of the Republic of South Africa
& others
2005 (4) SA 235
(CC), para 38, Chaskalson CJ said
the following:
‘
It is a general rule of
international law that the laws of a State ordinarily apply only
within its own territory.’
The
European Court of Human Rights, in
Bankovic & others v Belgium
& others
ECHR 2001-XII;
[2001] ECHR 890
(para 59), said the
following:
‘
[F]rom the standpoint of public
international law, the jurisdictional competence of a State is
primarily territorial.’
[29]
In our law in relation to territorial jurisdiction, the principle
that the State may assert its jurisdiction over all criminal
acts
that occur within its territory over all persons responsible for such
criminal acts, whatever their nationality, when present
in South
Africa is well established.
[8]
However, in more recent years there has been a broadening of the
basis of jurisdiction. There is now recognition that the basic
principle referred to above is losing ground. For a start, there is a
trend indicating that, where the constituent elements of
a crime
occurred in different countries, the offence may be tried in any
jurisdiction where any of those elements or their harmful
effect
occurred.
[9]
[30]
In
S v
Basson
,
[10]
the Constitutional Court in dealing with the presumption against
extra-territorial jurisdiction and the exceptions to that rule
said
the following:
‘
[223] We accept that as a
general proposition our courts have declined to exercise jurisdiction
over persons who commit crimes in
other countries. This, as Dugard
points out, is an aspect of sovereignty which has given rise to a
presumption against the extraterritorial
operation of criminal law.
[224] There are, however, exceptions
to the general rule. As Watermeyer CJ observed in R v Holm; R v
Pienaar the basis of this rule
is international comity:
“
'An
independent state does not claim a wider jurisdiction because it does
not wish to encroach upon the corresponding rights of
other
independent states.”
Watermeyer
CJ goes on to refer to Wheaton International Law as saying that the
judicial power of the State extends:
“
'(1) To the punishment of all
offences against municipal laws of the State, by whomsoever
committed, within the territory.
(2) To the punishment of all such
offences, by whomsoever committed, on board its public and private
vessels on the high seas and
on board its public vessels in foreign
ports.
(3) To the punishment of all such
offences by its subjects wheresoever committed.
(4) To the punishment of piracy and
other offences against the law of nations by whomsoever and
wheresoever committed.”
Watermeyer
CJ points out that this proposition is not accepted by all sovereign
states and that England makes the smallest claim
to punish its own
subjects or others for extraterritorial offences. Other countries go
so far as to exercise jurisdiction over
nationals who commit crimes
in any country.
[225]
It seems generally to be recognised, even by those countries which
limit their jurisdiction to crimes committed within their
territories, that there are exceptions to the territorial rule.
Treason is such an exception, for it is considered that the State
that is threatened has a greater interest than any other state in
punishing the offender. Exceptions are also made in respect of
transnational crimes where more than one state may have an interest
in holding the offender liable for the crime.’ (Footnotes
omitted.)
[31]
Further, with the increase in international terrorist activity,
states have largely co-operated in order to combat that scourge.
This
has resulted in international instruments in that regard, which
include the Conventions and the United Nations Resolutions
mentioned
above that are binding on signatories and/or member states. In order
for the effective combatting of the terrorist activities,
participating or member states are required to adopt the legislation
that confers jurisdiction on domestic courts to adjudicate
crimes
committed extra-territorially.
[32]
The long title
[11]
and the
preamble
[12]
of the Act set
out the purposes it seeks to achieve, which include that set out at
the end of the preceding paragraph.
[33]
We now turn to examine the relevant provisions of the Act. It must be
understood that central to the Act is the creation of
the offence of
terrorism and related crimes. Section 2 of the Act provides as
follows:
‘
Any person who engages in a
terrorist activity is guilty of the offence of terrorism.’
The
definition of ‘terrorist activity’ in s 1 is extensive.
For present purposes, it is not necessary to set out the
definition
in full, save to state that it is couched in wide terms and applies
to acts committed both inside and outside the Republic.
[34]
The sections that follow on s 2 create offences that are
subsidiary to or associated with the main offence of terrorism.
So,
for example, s 3 provides for ‘Offences associated or
connected with terrorist activities’, s 4 provides
for
‘Offences associated or connected with financing of specified
offences’ and s 5 creates an offence in relation
to the
delivery, placing, discharging and/or detonation of explosives or
other lethal devices.
[35]
The primary question in this case is to what extent extra-territorial
jurisdiction is conferred by the Act in relation to offences
created
thereby. For that the starting point is s 15 of the Act, which is
entitled ‘Jurisdiction in respect of offences’.
It is
necessary to consider the provisions of subsecs 15(1) to (4), which
read as follows:
‘
(1) A court of the Republic has
jurisdiction
in respect of
any specified offence
as
defined in paragraph
(a)
of the definition of “specified offence”, if –
(a)
the accused was arrested in
the territory of the Republic, or in its territorial waters or on
board a ship or aircraft registered
or required to be registered in
the Republic; or
(b)
the offence was committed –
(i) in the territory of the Republic;
(ii) on board a vessel, a ship, an
off-shore installation, or a fixed platform, or an aircraft
registered or required to be registered
in the Republic at the time
the offence was committed;
(iii)
by a citizen of the Republic or
a person ordinarily resident in the Republic;
(iv)
against the Republic, a citizen
of the Republic or a person ordinarily resident in the Republic;
(v)
on board an aircraft in respect
of which the operator is licensed in terms of the Air Services
Licensing Act, 1990 (Act 115 of 1990),
or the International Air
Services Act, 1993 (Act 60 of 1993);
(vi)
against a government facility
of the Republic abroad, including an embassy or other diplomatic or
consular premises, or any other
property of the Republic;
(vii)
when during its commission, a
national of the Republic is seized, threatened, injured or killed;
(viii)
in an attempt to compel the
Republic to do or to abstain or to refrain from doing any act; or
(c)
the evidence reveals any
other basis recognised by law.
(2) Any act alleged to constitute an
offence under this Act and which is committed outside the Republic by
a person
other than a person contemplated in subsection (1)
,
shall, regardless of whether or not the act constitutes an offence or
not at the place of its commission, be deemed to have been
committed
also in the Republic if that –
(a)
act affects or is intended to affect a
public body, any person or business in the Republic;
(b)
person is found to be in the Republic;
and
(c)
person is for one or other reason not
extradited by the Republic or if there is no application to extradite
that person.
(3) Any offence committed in a country
outside the Republic as contemplated in subsection (1) or (2), is,
for the purpose of determining
the jurisdiction of a court to try the
offence, deemed to have been committed –
(a)
at the place where the accused is
ordinarily resident; or
(b)
at the accused person’s
principal place of business.
(4) Where a person is charged with
conspiracy or incitement to commit an offence or as an accessory
after that offence, the offence
is deemed to have 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
case of an omission, should have acted.’
(Our
emphasis.)
[36]
As can be seen from the introductory wording of s 15(1), the
definition of ‘specified offence’ assumes importance.
That expression is defined in s 1 as follows:
‘“
specified offence”
,
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.’
[37]
Para (b) of the definition refers to an activity outside the
Republic, whereas para (a) thereof makes no reference to territory.
In supplementary heads of argument, counsel for the appellant
submitted that para (a) of the definition requires that the offences
in terms of the Act listed therein, must be committed in the
Republic. We are unable to agree. The offences in para (a) consist
of
terrorist and related activities which, in terms of the definition of
‘terrorist activity’ in the Act, may take
place anywhere
in the world. Para (a) of the definition of ‘specified offence’
does not contain any limitation in respect
of territory. It must be
borne in mind that s 15 was inserted for the very purpose of
empowering a domestic court to try offences
in relation to terrorist
activity committed elsewhere. There is no conceivable other reason
for including such a provision relating
to jurisdiction.
[38]
Both paras (a) and (b) of the definition of ‘specified offence’
are qualified by the introductory reference to
ss 4, 14 and 23.
Section 4 deals with the financing of specified offences. Section 14,
on the other hand, provides for criminal
liability in relation to
threats, attempts, conspiracies and assistance, inducements, etc to
commit an offence. However, s 14,
is in turn, qualified by the
reference to s 4. Section 23 deals with prohibition and freezing
orders in respect of property
believed to be owned or controlled by
an entity which has committed a specified offence and need not detain
us further. It follows
that the definition of ‘specified
offence’ provides for two categories of offences, namely, (i)
the financing of an
offence listed in para (a) of the definition, ie
an offence in terms of the Act wherever committed and (ii) the
financing of an
activity outside the Republic described in para (b)
of the definition ie, one which constitutes an offence under the law
of another
state that would have constituted an offence in terms of
the Act had that activity taken place in the Republic. Section 15(1)
caters only for extra-territorial jurisdiction in relation to (i)
above. It does so when the accused person was arrested in South
Africa or any of the requirements set out in s 15(1)
(b)
(i)
to (viii) were met or the evidence reveals any other basis for
jurisdiction recognised by law. It was not suggested by counsel
for
any of the parties that subparagraph
(b)
of the definition of
‘specified offence’ found application in this case. It is
thus not necessary to determine the circumstances
under which it will
find application.
[39]
Counsel on behalf of the State was constrained to concede that the
Act was not a model of clarity and in parts badly drafted.
He also
accepted that, read literally, s 15(1) read with paragraph
(a)
of the
definition of ‘specified offence’,
cannot
have a meaning other than that set out above. However, it was
contended by counsel on behalf of the State, that to interpret
it in
that manner would emasculate the Act and that one should assume that
the intention of the legislature was to broaden the
application of
the legislation rather than to have it restricted. It was submitted
further, that to follow the literal wording
would lead to absurd
results and could not have been what the legislature had intended. As
we understood the argument, it was suggested
that it would be absurd
for the legislation to provide for extra-territorial jurisdiction in
respect of the more circumscribed
offence of financing of terrorist
activities, rather than what is covered by the wide definition of
‘terrorist activity’
─ which the Act was intended
to regulate.
[40]
The argument must be rejected. First, as we will show,
extra-territorial jurisdiction in respect of offences in terms of the
Act other than financing thereof, are provided for in s 15(2).
Secondly, counsel on behalf of the State was constrained to
accept
that in order to reach the interpretation he contended for, it would
be necessary not only to strain the language of the
legislation, but
also either to exclude certain words, or read in others, or both.
Thirdly, it is the legislature’s prerogative
to decide to what
degree it would extend the jurisdiction of domestic courts in respect
of all terrorist and related activities.
It chose to do so in the
terms set out above. It chose, in its wisdom, to restrict the
category to those of financing or assisting
in the financing of
terrorist activities and those mentioned in s 15(2). It is not
within our province to question the legitimate
policy choices made by
the legislature.
[13]
[41]
We turn to deal with the wording of s 15(2), set out in para 35
above. Its introductory words are couched widely. It provides
for
extra-territorial jurisdiction in relation to a person other than one
catered for in 15(1), if the conditions in s 15(2)
(a)
,
(b)
and
(c)
are met. A person contemplated in s 15(1), as
demonstrated above, is one who has committed an offence referred to
therein and to
whom the provisions of s 15(1)
(a)
,
(b)
or
(c)
apply. Section 15(2), on the other hand, involves
jurisdiction in relation to any person who has committed an offence
in terms
of the Act
other
than a person contemplated in s
15(1), provided sections 15(1)
(a)
,
(b)
or
(c)
apply.
Those subsections must be read conjunctively. This means that the act
must affect or be intended to affect a public body,
person or
business in the Republic, the accused must be found to be in the
Republic, and there is no application for the accused’s
extradition or the accused has, for one or other reason, not been
extradited. As none of the offences in counts 1 to 12 affected
South
African interests, s 15(2) does not provide for extra-territorial
jurisdiction in this case.
[42]
Section 15(3) requires only brief attention. It was inserted purely
in order to determine which domestic court within the Republic
will
hear a matter once jurisdiction had been established in terms of
s 15(1) or s 15(2).
[43]
It is now necessary to examine the facts and relate them to the
counts in the indictment. Counts 1, 3, 5 and 7 are all related
to the
Warri bombing. It is clear that the appellant had departed from South
Africa almost a month before it occurred. There was
evidence that the
appellant had travelled to Nigeria and crossed the border other than
at an official crossing point. Every act
committed by the appellant
which constituted those offences as set out in the indictment, was
committed by him outside of the Republic
of South Africa. None of the
counts set out at the beginning of this paragraph involve the
financing of offences. As discussed
above, our courts have
extra-territorial jurisdiction in terms of s 15(1) of the Act
only in relation to the crimes of the
financing of the offences set
out in para (a) of the definition of ‘specified offence’.
[44]
The provisions of s 15(4), which deal with conspiracy and
incitement, set out above, are not applicable to the counts
dealt
with in the preceding paragraph because none of the offences
envisaged in that section occurred within South Africa. There
is no
compelling evidence of a conspiracy or incitement here to commit the
offences in question.
[14]
[45]
Claassen J did not engage in the interpretative exercise as set out
above. The court below thus erred in assuming jurisdiction
in
relation to counts 1, 3, 5 and 7. In respect of those convictions,
the appeal is thus bound to succeed.
[46]
We now turn to deal with count 9, which does implicate the financing
of terrorist activities. It concerns a contravention of
s 4(1)
(f)
of the Act, read with the necessary associated sections. In the
present case, the appellant was charged with providing more than
2
million Nigerian naira to three individuals for the purposes of
acquiring and adapting vehicles and to purchase explosives for
use in
the Warri bombing. This constituted financing of offences within the
meaning of para (a) of the definition of ‘specified
offence’.
The appellant was arrested in the Republic of South Africa and the
bombing was essentially perpetrated by him,
being a person ordinarily
resident within the Republic. It follows that in respect to count 9,
the court a quo was clothed with
extra-territorial jurisdiction in
terms of s 15(1). That conviction can thus not be faulted on the
basis of lack of jurisdiction.
[47]
In respect of count 11, it is necessary to have regard to the
particulars set out in the indictment. The appellant was charged
with
contravening the provisions of s 3(1)
(a)
of the Act. That
subsection reads as follows:
‘
(1) Any person who –
(a)
does anything which will,
or is likely to, enhance the ability of any entity to engage in a
terrorist activity, including to provide
or offering to provide a
skill or an expertise; . . .
for the benefit of, at the direction
of, or in association with any entity engaging in a terrorist
activity, and who knows or ought
reasonably to have known or
suspected, that such act was done for the purpose of enhancing the
ability of such entity to engage
in a terrorist activity, is guilty
of the offence associated with a terrorist activity.’
The
factual averments in the indictment are that the appellant provided
two clock timer devices that were fitted into the two vehicle-borne
improvised explosive devices that were used in the Warri bombing. The
court below found that the two timing devices used in the
Warri
bombing were acquired by the appellant in South Africa or were in his
possession and that he had then transported them to
Nigeria for the
purposes of the bombing. The appellant thus contravened the
provisions of s 3(1)
(a)
of the Act while still in South
Africa, and the conviction on this count did not involve an
assumption of extra-territorial jurisdiction.
That conviction, too,
cannot be faulted.
[48]
We now turn our attention to the counts related to the bombing in
Abuja, namely, counts 2, 4, 6, 8, 10 and 12.
[15]
The appellant conspired, planned and instructed people in relation to
the execution of the bombing in Abuja whilst in South Africa.
Simply
put, there is no need in relation to these counts to examine the
ambit of the extra-territorial application of the Act because
he
orchestrated the Abuja bombing from within the Republic of South
Africa. It is as elementary as follows. The appellant was arrested
here and charged locally for acts he committed within the country and
a domestic court would therefore obviously have jurisdiction.
In
respect of these counts, the convictions by the court below must
therefore also remain in stead.
[49]
It now remains for us to deal with count 13. It will be recalled that
Claassen J relied in this regard on the evidence of Kerry
and
Zeeman.
[16]
The essential
problem for the State is that there was no acceptable evidence
connecting the appellant with the e-mail referred
to in para 18
above. The evidence of Kerry, that he had been made aware of the
threat contained therein and that it was a cause
for concern, is
therefore of no assistance to the State. The expert evidence adduced
by the State in relation to information technology
did not cure the
defect. What remains to be dealt with is the evidence of Zeeman. It
is clear from the indictment that it is inextricably
reliant on the
Timi e-mail. The evidence of Zeeman would only be of assistance if it
would link the email to the appellant, which
it does not. For these
reasons the court below erred in convicting the appellant on this
count.
[50]
The result of the abovementioned convictions being set aside is that
the sentences imposed have to be looked at afresh. Counsel
for the
parties were agreed that it would be in the interest of justice for
this court to finalise that question without the need
for it to be
remitted for consideration afresh by the trial court. It will be
recalled that the sentence in relation to count 13,
which was that of
10 years’ imprisonment, was ordered to run concurrently with
the sentence in relation to the Abuja bombing.
The effective sentence
wa one of 24 years’ imprisonment.
[51]
In relation to the Warri bombing the only convictions that were not
displaced were in relation to counts 9 and 11. In respect
of an
appropriate sentence, it is necessary to bear in mind that that these
counts involved the appellant providing finance
and equipment
without which the bombing would not have been executed. It is also
necessary to take into account that there was
an amnesty in place,
which appears to have been accepted by all the major actors involved
in the past struggles in the Niger Delta,
including the appellant and
his cohorts. The subsequent bombings took place despite the
acceptance of the amnesty and in contravention
thereof. The Warri
event at which the bombing occurred, appears to have been one
arranged by a newspaper to air, discuss and address
the grievances of
persons living in the Niger Delta affected by the prior lack of
concern on the part of the government of Nigeria.
The bombing
disrupted that event and prevented those discussions from taking
their course. Furthermore, it is significant that
a school was
located within the immediate vicinity of the bombing and the
appellant was aware of that fact. Fortunately, it was
decided to
close the school for the day because of the event.
[52]
It is also necessary to take into account that the two bombs were set
up so that they did not explode simultaneously, with
the second bomb
only exploding ten minutes after the first. As explained above, the
intention was that the first explosion would
create chaos and
confusion and draw a crowd to the scene of the disruption, ensuring
that the second explosion would wreak even
more havoc. It is also
necessary to record that the appellant was upset that the bombs had
not been placed closer to the buildings
at which the event took
place, despite being warned that this would result in more deaths, as
he desired the bombings to have a
greater devastating effect.
[53]
Having regard to what is set out above, limited interference with the
sentence imposed in relation to the Warri bombings is
called for.
[54]
In our view, the following sentences ought to be imposed:
(i) In respect of the
convictions on counts 9 and 11 (relating to the Warri bombing), taken
together, 8 years’ imprisonment
is appropriate.
(ii) The sentence in
relation to the Abuja bombing, namely, 12 years’ imprisonment,
remains in place.
(iii) The two sentences
are not to run concurrently.
(iv) The effective
sentence is thus one of 20 years’ imprisonment.
[55]
The following order is made:
1. The appeal is upheld
to the extent reflected in the substituted order of the court below,
set out hereafter.
2. In respect of
conviction, the order of the court below is set aside and substituted
as follows:
‘
The
appellant is convicted on counts 2, 4, 6, 8, 9, 10, 11 and 12.’
3. In respect of
sentence, the order of the court below is set aside and substituted
as follows:
‘
Counts
2, 4, 6, 8, 10 and 12 are taken together for purposes of sentence and
the accused is sentenced to 12 years’ imprisonment.
Counts
9 and 11 are taken together for purposes of sentence and the accused
is sentenced to 8 years’ imprisonment.
The
effective sentence is thus 20 years’ imprisonment.’
______________________
M
S Navsa
Judge
of Appeal
______________________
C
H G van der Merwe
Judge
of Appeal
Appearances:
Counsel
for Appellant: J P Marais (and P I Uriesi) (Supplementary heads of
argument prepared by G C Muller SC)
Instructed
by:
MVB
Incorporated, Pretoria
Botha
& De Jager Attorneys, Bloemfontein
Counsel
for First Respondent: J P Pretorius SC (and J J du Toit) (Heads of
argument prepared by S K Abrahams)
Instructed
by:
Director
of Public Prosecutions, Johannesburg
Director
of Public Prosecutions, Bloemfontein
Counsel
for Third and
Fifth
Respondent: M T K Moerane SC (and E B Ndebele)
Instructed
by:
State
Attorney, Pretoria
State
Attorney, Bloemfontein
[1]
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; the International Convention
Against the Taking of
Hostages, adopted by the General Assembly of
the United Nations on 17 December 1979; the International Convention
for the Suppression
of Terrorist Bombings, adopted by the General
Assembly of the United Nations on 15 December 1997; and the
International Convention
on the Suppression of the Financing of
Terrorism, adopted by the General Assembly of the United Nations on
9 December 1999.
[2]
The OAU Convention on the Prevention
and Combatting of Terrorism, adopted by the Organisation of African
Unity at Algiers on 14
July 1999.
[3]
United Nations Security Council
Resolution 1373, adopted under Chapter VII of the Charter of the
United Nations on 28 September
2001.
[4]
The Niger Delta is the delta of the
Niger River, sitting directly on the Bight of Biafra side of the
Gulf of Guinea on the Atlantic
Ocean, in Nigeria.
[5]
President Yar’Adua passed away
on 5 May 2010.
[6]
For
present purposes and for reasons provided in para 26 below, it will
become apparent that it is not necessary to address the
correctness
of that procedure.
[7]
John Dugard
International
Law: A South African Perspective
4 ed (2011) at 146.
[8]
See
R
v Holm; R v Pienaar
1948
(1) SA 925
(A) at 929-930; and
S
v Basson
[2005] ZACC 10
;
2007 (3) SA 582
(CC) paras 223-225.
[9]
Alfred V Lansdown and Jean Campbell,
South African Criminal Law
and Procedure
, vol 5
(1982), at 3 and 9.
[10]
See
S
v
Basson
above.
[11]
The long title of the Act provides:
‘
To
provide for measures to prevent and combat terrorist and related
activities; to provide for an offence of terrorism and other
offences associated or connected with terrorist activities; to
provide for Convention offences; to give effect to international
instruments dealing with terrorist and related activities; to
provide for a mechanism to comply with United Nations Security
Council Resolutions, which are binding on member States, in respect
of terrorist and related activities; to provide for measures
to
prevent and combat the financing of terrorist and related
activities; to provide for investigative measures in respect of
terrorist and related activities; and to provide for matter
connected therewith.’
[12]
The preamble includes the following:
‘
AND
REALISING the importance to enact appropriate domestic legislation
necessary to implement the provisions of relevant international
instruments dealing with terrorist and related activities, to ensure
that the jurisdiction of the courts of the Republic of South
Africa
enables them to bring to trial the perpetrators of terrorist and
related activities; and to co-operate with and provide
support and
assistance to other States and relevant international and regional
organisations to that end; . . . .’
[13]
See
Weare
& another v Ndebele NO & others
[2008] ZACC 20
;
2009 (1) SA 600
(CC) para 58.
[14]
In para 96 of the judgment the court
a quo referred to evidence of a witness who at the instruction of
the appellant had conducted
a reconnaissance of the venue where the
post-amnesty dialogue would initially have taken place. This is far
removed from the
indictment and in any event it is unclear whether
the appellant gave the instruction whilst in South Africa.
[15]
Count 2 is a contravention of s 2 of
the Act, which involves engaging in terrorist activities and the
alternative charges related
thereto. Count 4 is a contravention of s
5
(a)
of the Act which involves the delivery, placing, discharge or
detonation of an explosive device causing death and/or serious
bodily injury and the alternatives relating thereto. Count 6 is a
contravention of s 5
(b)
of the Act which involves the delivery, placing, discharge or
detonation of an explosive device with the purpose of causing
extensive damage to and/or destruction of inter alia a place of
public use and/or public transport facility and/or government
facilities, and the alternatives relating thereto. Count 8 is a
contravention of s 8
(a)
read with s 14
(b)
of the Act, which deals with attempts to cause harm to
internationally protected persons, and relates to the figures
referred
to earlier in the judgment who were in the vicinity of
where the Abuja bombing occurred. Count 10 is a contravention of
s 4(1)
(f)
of the Act involving financing of terrorist activities, and the
alternatives relating thereto. Count 12 is a contravention of
s 3(1)
(a)
of the Act involving enhancing the ability of an entity engage in a
terrorist activity.
[16]
See para 20 above.