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[2018] ZACC 3
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S v Okah (CCT 315/16; CCT 193/17) [2018] ZACC 3; 2018 (4) BCLR 456 (CC); 2018 (1) SACR 492 (CC) (23 February 2018)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case
CCT 315/16 and CCT 193/17
CCT
315/16
In the matter
between:
THE
STATE
First Applicant
NATIONAL DIRECTOR
OF PUBLIC PROSECUTIONS
Second Applicant
and
HENRY EMOMOTIMI
OKAH
Respondent
CCT
193/17
In the matter
between:
HENRY EMOMOTIMI
OKAH
Applicant
and
THE
STATE
Respondent
and
INSTITUTE
FOR SECURITY
STUDIES
First Amicus Curiae
and
SOUTHERN
AFRICA LITIGATION CENTRE
Second Amicus Curiae
Neutral citation:
S v Okah
[2018] ZACC 3
Coram:
Zondo ACJ, Cameron J, Froneman J, Jafta J,
Kathree Setiloane AJ, Kollapen AJ, Madlanga J, Mhlantla J,
Theron J and Zondi
AJ
Judgment:
Cameron J (unanimous)
Heard on:
28 November 2017
Decided on:
23 February 2018
Summary:
Protection of Constitutional Democracy against Terrorist and
Related Activities Act 33 of 2004 — section 15(1) —
extra territorial
jurisdiction — specified offence —
South African courts have jurisdiction to try terrorist acts
committed abroad, beyond
the financing of terrorism
Protection of Constitutional Democracy against Terrorist and Related
Activities Act 33 of 2004 — section 1(4) — exemption
to
the definition of terrorist activity — international
humanitarian law — indiscriminate bombings violate
international
humanitarian law and do not qualify for exemption
Criminal Procedure Act 51 of 1977
—
section 317
— special
entries — irregularities should be refused only when the
application is in bad faith, frivolous or absurd,
or because granting
the application would amount to an abuse of court process
ORDER
On appeal from a
judgment and order of the Supreme Court of Appeal:
1. The application
for leave to appeal by the State is granted.
2. The appeal by the
State is upheld.
3. The order of the
Supreme Court of Appeal upholding Mr Okah’s appeal is set aside
and is substituted with:
“The appeal is dismissed.”
4. Mr Okah’s
application for leave to appeal regarding exemption from prosecution
under
section 1(4)
of
the Protection of
Constitutional Democracy against Terrorist and Related Activities Act
is dismissed.
5. The portion of Mr
Okah’s application for leave to appeal regarding the special
entry on the High Court’s failure
to inform Mr Okah of his
right to consular access under Article 7(3) of the International
Convention for the Suppression of
Terrorist Bombings is granted and
the special entry is made.
6. Mr Okah’s
appeal against his entire conviction on the basis of this special
entry is dismissed.
7. The remaining
portions of Mr Okah’s application for leave to appeal regarding
the special entries are dismissed.
JUDGMENT
CAMERON J
(Zondo ACJ, Froneman J, Jafta J, Kathree-Setiloane AJ, Kollapen AJ,
Madlanga J, Mhlantla J, Theron J and Zondi AJ
concurring):
Introduction
[1]
Mr Henry Emomotimi Okah, a citizen of
Nigeria and a permanent resident of South Africa, was charged with 13
counts relating to terrorism
under the Protection of Constitutional
Democracy against Terrorist and Related Activities Act
[1]
(Act).  Six counts arose from two car bombings detonated
successively in Warri, Nigeria on 15 March 2010.  Six
additional counts related to a further double car bombing six months
later in Abuja, Nigeria on 1 October 2010.  One person
was
killed in the Warri bombings, and at least eight people were killed
in the Abuja bombings.  Injuries and damage in both
bombings
were extensive.
[2]
[2]
In the High Court of South Africa,
Gauteng Local Division, Johannesburg (High Court), the State
established that Mr Okah masterminded
and bankrolled both
bombings.
[3]
The High Court convicted him on all 13 counts.
[4]
However, because he was in South Africa when he planned and executed
the Abuja bombings and in Nigeria at the time of the
Warri
bombings,
[5]
the Supreme Court of Appeal overruled the High Court in part and
acquitted Mr Okah on four of the Warri charges
[6]
on the ground that the Act established only limited jurisdiction over
acts committed outside South Africa.
[7]
The result was that the Supreme Court of Appeal replaced the sentence
of 24 years’ imprisonment the High Court imposed
with a
sentence of 20 years.
[8]
[3]
The State seeks to appeal against the
conclusion by the Supreme Court of Appeal that the Act has narrow
jurisdictional reach.
It thereby seeks to reinstate Mr Okah’s
convictions on all the Warri charges with consequent reinstatement of
the sentence
the High Court imposed.
[9]
Shortly before this Court was due to hear the State’s
application on 1 August 2017, Mr Okah himself sought leave
to
appeal on four issues.  These were the High Court’s
refusal to exempt him from culpability for the bombings on the
basis
of section 1(4) of the Act,
[10]
and its refusal to make three special entries on the record of the
proceedings before it under
section 317
of the
Criminal Procedure
Act.
[11
]
Mr Okah claimed that these omissions on the part of the trial
court rendered his trial unfair.  As a result of
Mr Okah’s
application, this Court consolidated the State’s and Mr Okah’s
applications and postponed the hearing
from 1 August 2017 to 28
November 2017.
[4]
The issues in this Court are: first,
whether South African courts have jurisdiction under section 15(1) of
the Act to try alleged
offences – beyond the financing of an
offence – that occurred outside South Africa; second, whether
Mr Okah qualifies
for exemption under section 1(4) of the Act;
and, third, whether the High Court wrongly refused to make three
special entries on
the record.
Background
[5]
The High Court found that Mr Okah –
who did not testify in his own defence
[12]
–
was the leader of the Movement for the Emancipation of the
Niger Delta (MEND), an umbrella organisation
of militant
resistance groups in the southern states of Nigeria.
[13]
MEND represents individuals who believe that the government of
Nigeria, with the connivance of international oil companies,
is
generating vast sums of money from the oil extracted from the Niger
Delta, while affording no benefit to the impoverished local

inhabitants and simultaneously degrading their environment.
[14]
[6]
In 2007, Mr Okah was arrested and
prosecuted by the federal government of Nigeria on charges of treason
and gun-running.
[15]
However, in 2009, that government implemented an amnesty to restore
peace in the Niger Delta.
[16]
Mr Okah accepted the Nigerian government’s offer of
amnesty and was later released.
[17]
Warri bombings
[7]
On 15 March 2010, following instructions
from Mr Okah, two bombs were detonated at Government House Annex in
Warri.
[18]
At the time, the Vanguard Newspaper was due to hold a post-amnesty
dialogue meeting.
[19]
This was attended by stakeholders in the Niger Delta region as well
as dignitaries.
[20]
One person died in the bombing, and several others were injured.
[21]
The Warri bombings were the subject of counts 1, 3, 5, 7, 9 and
11.
[22]
Counts 9 and 11 related to the financing of the Warri bombings.
[23]
The Supreme Court of Appeal upheld convictions on these two
counts,
[24]
but dismissed counts 1, 3, 5 and 7.
[25]
Abuja bombings
[8]
On 1 October 2010, on the instruction of
Mr Okah, two vehicles packed with hidden explosives were parked on a
public road in close
proximity to where the then President of
Nigeria, Dr Goodluck Jonathan, and other dignitaries were celebrating
the country’s
fiftieth independence anniversary.
[26]
The bombs were successively detonated for maximum carnage.
[27]
Eight people died, and many others sustained serious injuries.
[28]
The Abuja bombs accounted for counts 2, 4, 6, 8, 10 and 12.
[29]
The Supreme Court of Appeal upheld convictions on all six counts.
[30]
In the High Court
High Court judgment on the merits and section 1(4)
[9]
Aside
from challenging the Court’s jurisdiction, Mr Okah, at the
close of his trial, invoked section 1(4) of the Act for the
first
time to exempt him from liability for the bombings.  The trial
court held that this was misplaced.
[31]
It found that, in the light of the government amnesty and Mr Okah’s
own acceptance of it, “
no further armed struggle was
legitimate
”.
[32]
In any event,
Mr Okah had laid no basis for invoking section
1(4).
[33]
High Court judgment on the special entries
[10] At the close of
the trial, Mr Okah applied to the Court to make three special entries
on its record regarding alleged irregularities
in its proceedings.
The alleged irregularities were:
(a) the presence at the trial of Mr Clifford Osagie, a barrister
employed by the Nigerian State Security Services as a prosecutor;
(b) the State’s admitted failure to inform Mr Okah of his right
to consular access under Article 7(3) of the International
Convention
for the Suppression of Terrorist Bombings, 15 December 1997
(Terrorist Bombings Convention); and
(c) the trial court’s failure to issue a letter of request
under section 2(1) of the International Co-operation in Criminal

Matters Act
[34]
to secure evidence from witnesses in proceedings that took place in
Nigeria.
[35]
[11] The trial court
refused the application.
[36]
The Supreme Court of Appeal refused leave to appeal.  There the
matter lay until, days before the initial set-down in
this Court of
the State’s challenge to Mr Okah’s acquittal on the Warri
bombings, Mr Okah sought to revive the
alleged irregularities.
In the Supreme Court
of Appeal
[12]
The trial court granted Mr Okah leave to
appeal against his convictions on counts 1 to 12 on only the narrow
basis that the Court
lacked jurisdiction because the acts were
committed beyond South Africa’s borders.
[37]
Mr Okah’s counsel abandoned the attempt to invoke section 1(4)
before the Supreme Court of Appeal.
[13] The Supreme
Court of Appeal provided an overview of our law relating to
extra-territorial jurisdiction preceding the Act.
[38]
The Court noted that section 15(1) of the Act now constitutes the
main basis of South African courts’ jurisdiction
to try
terrorism offences committed outside South Africa.
[39]
This section confers extra territorial jurisdiction only in
respect of a “specified offence” as defined.
[40]
Because each of the sections referred to in the introductory words to
the definition deals specifically with financing terrorist
acts,
[41]
the Supreme Court of Appeal interpreted a “specified offence”
itself to include only offences of financing.
[42]
[14] The Supreme
Court of Appeal thus held that the South African courts “have
extra-territorial jurisdiction in terms of
section 15(1) of the Act
only in relation to the crimes of the financing of the offences”.
[43]
On this limited reading, the Court overturned the Warri
convictions.  The Court, however, confirmed Mr Okah’s

convictions on counts 2, 4, 6, 8, 10 and 12.  This was because
he had orchestrated the Abuja bombings from within South Africa.
[44]
Friends of the Court
(amici curiae)
[15] Shortly before
the hearing, this Court directed that the papers be brought to the
attention of certain persons and organisations
with expertise in
international law.
[45]
In response, the Institute for Security Studies and the Southern
Africa Litigation Centre applied for and were admitted as
first and
second amici.  Both assisted this Court with written and oral
submissions.  The amici made common cause with
the State in
regard to the interpretation of “specified offence” as
well as, given the facts, the inapplicability of
section 1(4) under
international humanitarian law.  This Court is greatly indebted
to the amici.
Leave to appeal
[16] Deciding the
scope of jurisdiction of South African courts is a constitutional
matter;
[46]
therefore, this Court has jurisdiction.  It also became evident
during argument that determining the South African courts’

jurisdiction under the Act relates to a number of pending
prosecutions.  That question, which is clearly arguable, is thus

one of general public importance, which this Court ought to
consider.
[47]
This Court thus also has general jurisdiction.
[17] The ambit of
section 1(4) of the Act is, likewise, a matter of general public
importance, though whether the Court ought to
hear it in the form in
which Mr Okah raises it depends on the interests of
justice.
[48]
I consider, later, whether Mr Okah’s application for leave
to appeal against the refusal of the special entries
should be
granted.
Extra-territorial
jurisdiction under section 15(1) of the Act
[18] As the Supreme
Court of Appeal noted, the primary question is the extent to which
section 15 of the Act confers extra-territorial
jurisdiction on our
courts to try alleged offences – beyond the financing of an
offence – that occurred outside South
Africa.  This, in
turn, centres on what is meant by “specified offence”.
[19] Section 15(1)
confers jurisdiction over “specified offences”, a term
defined in section 1(1).  That provision
in turn refers to six
other sections: 2, 3, 4, 13, 14 and 23.  Section 15(2) acts
as a residual jurisdiction-granting
clause.
[49]
It provides that any act alleged to constitute an offence
committed by a person not contemplated by section 15(1) may

nonetheless be brought to justice in our courts so long as there is a
particular nexus between the act or person and South Africa.

The charges that are the subject of this appeal do not meet the
section 15(2) nexus requirements.
[20] Section 1(1)
sets out the definitions of various terms used throughout the Act.
Regarding the term at issue, it states:
“‘[S]pecified 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.”
The Supreme Court of
Appeal concluded that the term “specified offence” means
the financing of activities listed in
paragraphs (a) or (b).  The
core of its reasoning proceeded from the introductory words “with
reference to section 4,
14 (in so far as it relates to section 4),
and 23”.
[21] In ascribing
this meaning, the Supreme Court of Appeal did not undertake a
grammatical or other analysis of the words “with
reference
to”.  It said only that the definition of “specified
offence” was “qualified by” the
introductory
words.
[50]
Although not making this explicit, it appears to have taken the words
to mean something like “co-extensively with”
or “limited
to” or “only to the extent of”.
[22] But this seems
wrong.  The usual meaning of “with reference to” is
not limiting.  It is generally just
a neutral connective phrase,
meaning “in relation to” or “alluding to” or
“in connection with”
or “having to do with”.
The job it does is just to connect one concept or subject with
another.  It does
not do this by limiting or constricting the
former by alluding to the latter.
[51]
[23] That the usual
meaning of “with reference to” is the right one here
emerges from two textual indicators.
First, that meaning makes
sense of the many other instances in which the statute’s
definitions provision – section
1 – uses “with
reference to”.  Second, and more dramatically, that
meaning avoids absurd constructions of
sections 4, 14 and 23.
[24] The term “with
reference to” is used no fewer than 17 times in the Act, all
within the definitions section.  Each
time, “with
reference to” is used to connect a particular term to textual
locations in which it is used later.  It
either alludes to
provisions, as is the case with “specified offence”, or
it alludes to other terms.  For example:
“‘[I]nfrastructure facility’, with reference to the
definition of ‘terrorist activity’ in this section
and
section 5, means . . .”
In turn, the
definition of “terrorist activity” contains the term
“infrastructure facility”.  The term
“with
reference to” has been included simply to assist readers in
locating terms.
[25] What
complicates the issue before us is that some terms, including the
term “specified offence”, are used beyond
the provisions
that are in fact alluded to.
[52]
This, however, is the result of poor drafting.  Both
parties acknowledged that the statute is anything but a paragon
of
clear or deft drafting.
[26] Aside from
this, the Supreme Court of Appeal’s narrow interpretation
creates a series of absurdities.  First, the
effect of its
interpretation is to grant courts wide jurisdiction over
terrorism-financing crimes, but very narrow jurisdiction
over the
crime of terrorism itself.
[53]
This (in the words of counsel for the first amicus) would
create instances in which it would be possible to “prosecute

the banker, but not the bomber”.
[27] Absurdity is
also apparent in section 11.  This section makes it a crime to
harbour a person “who has committed
a specified offence”.
According to the Supreme Court of Appeal’s interpretation
of “specified offence”,
a court would have no
jurisdiction to try someone for harbouring a terrorist, but it would
have jurisdiction to try someone for
harbouring a
terrorist-financier.  That can’t be.
[28] Second, the
Supreme Court of Appeal’s interpretation radically and absurdly
restricts section 4.  Section 4 is titled
“Offences
associated or connected with financing of specified offences”.
It criminalises the acquisition, possession,
use or provision
of property intending that it be used – or knowing or being
obliged reasonably to know or suspect that the
property will be used
– “to commit or facilitate the commission of a specified
offence”.
[54]
If the definition of “specified offence” is limited –
because of the reference to section 4 – to
mean
the
financing of
terrorism, then section 4 becomes “offences
associated or connected with
financing the financing of
terrorism”.  On the Supreme Court of Appeal’s
reading, instead of criminalising any use of property with the
specified
intention and knowledge
to commit any terrorist offence
here or abroad, section 4 would criminalise only using property with
the specified intention and knowledge
to finance terrorist
activities
.
[29] Third, the
Supreme Court of Appeal’s approach fails to explain how
section 23 – which is one of the provisions
implicated
“with reference to” – could limit the definition of
a specified offence.  Unlike sections 4 and
14, which define
derivative crimes, section 23 does not define criminal activity at
all.  Instead, it empowers a court to
issue a freezing order.  A
High Court may freeze property in respect of which reasonable grounds
exist for believing that
it is owned or controlled by any entity that
has committed a “specified offence”.
[55]
[30] The Supreme
Court of Appeal’s interpretation overlooks the fact that
section 23 is included in the list of provisions
“with
reference to” which “specified offence” is
defined.  Instead, the Court merely said tersely,
“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”.
[56]
Yet pausing at section 23 shows the weakness in the approach.
If “with reference to” means “limited
by”,
specified offences would be limited by a court’s discretionary
ability to make freezing orders.  This makes
no sense.  There
is no possible bearing that the judicial power to make freezing
orders can have on the ambit of the criminal
offence sought to be
defined.
[57]
[31] Fourth, the
Supreme Court of Appeal’s interpretation riddles the definition
of “specified offence” itself
with surplusage.  Paragraph
(a) of the definition provides four categories of offences.
[58]
The last of these is “an offence referred to in
section 13 or 14 (in so far as it relates to the aforementioned

sections)”.  If the definition were already limited by
“with reference to section . . . 14”, why would section

14 be repeated in paragraph (a)?
[32] What is more,
the definition of “specified offence” is closely
integrated with the offence of terrorism that lies
at the heart of
the entire legislative scheme.
[59]
Indeed, the definition reads: “specified offence . . . means
the offence of terrorism referred to in section 2”.
Section
2 provides that “any person who engages in a terrorist activity
is guilty of the offence of terrorism”.
Terrorist
activity is, in turn, widely defined in section 1.  In compacted
form, it includes any act committed “in or
outside the
Republic” that creates specified deleterious effects; is
intended to cause certain effects; and is committed
“for the
purpose of the advancement of an individual or collective political,
religious, ideological or philosophical motive,
objective, cause or
undertaking”.
[33] The Act here
creates a carefully interconnecting web linking the offence of
terrorism in section 2, the definition of terrorist
activity in
section 1 and the conferral of extra-territorial jurisdiction in
section 15.  The effect of the Supreme Court
of Appeal’s
interpretation is to unravel this structure.  It makes
“specified offence” a lame partner in
the statutory
mechanism.  This would disable the functional utility of the
entire statutory scheme.
[34] On its own, the
statutory scheme compels a broad reading of section 15(1) and, hence,
the conferral of extra-territorial jurisdiction.
[60]
Yet we are of course obliged by ordinary good sense and by the
hermeneutic precepts articulated by both this Court and the
Supreme
Court of Appeal to take account of the statute’s purpose.
[61]
Doing so likewise commands the broader interpretation.
[35] The long title
and preamble record that the Act is designed primarily to create an
offence of terrorism that gives effect to
international instruments,
which are listed in the preamble,
[62]
and that extends the South African courts’ jurisdiction over
these offences wherever they are committed.  As the preamble

acknowledges, “terrorist and related activities are an
international problem, which can only be effectively addressed by

means of international co-operation”.  The definition of
“terrorist activity” does this by expressly including
any
act committed “in or outside the Republic”.
[63]
[36] The statute
fulfils a number of international instruments.  These establish
that South Africa is under both a general
duty to combat terrorism
and a specific duty to bring to trial perpetrators of terrorism,
wherever perpetrated, whom it does not
extradite.  The
international instruments establishing these twin duties include
conventions, protocols and UN Security Council
resolutions.
[64]
[37] The general
duty to combat terrorism is broad.  It commands a reading of the
Act that enables South Africa to participate,
as a member of the
international community, in the fight against an international and
transnational phenomenon.  The conspicuous
consequence of the
contested interpretation is that it would pull the Act’s teeth,
rendering futile its expressed endeavour
to give bite to this duty.
[38] The specific
duty to prosecute or extradite provides a yet stronger imperative to
overturn that interpretation.
[65]
Even if one were to assume that interpretation were reasonable,
which a textual analysis shows it is not, section 233 of
the
Constitution requires this Court to interpret the Act in line with
international law.  Here, there is a clear obligation
that South
Africa prosecute or extradite persons like Mr Okah.  The
interpretation in this judgment gives effect to that obligation,

whereas the Supreme Court of Appeal’s interpretation does not.
[39] There are two
possible reasons that the Supreme Court of Appeal reached the
conclusion that it did.  The first may be
a wish to give meaning
to section 15(2).  The second may be concerns about
international comity.
[40] The Supreme
Court of Appeal rejected the State’s argument on the breadth of
section 15(1) because it was satisfied
that all other offences
mentioned in the Act, besides the offence of financing, would fit
within section 15(2).  This seems
wrong.  The Court’s
understanding of the relationship between section 15(1) and (2)
is not consonant with the text.
The residual nature of
section 15(2) relates primarily to other
persons
, not to
other offences.  This is shown by the fact that section 15(2)
says, “Any act alleged to constitute an offence
under this Act
. . .
by a person other than a person
contemplated in
subsection (1)”.  In other words, section 15(2) is
meant to cover a
person
who neither was arrested within the
South African jurisdiction nor committed an act fulfilling one of the
criteria in section 15(1)(b).
[41] What is more,
invoking section 15(2) to give effect to the international duty to
prosecute-or-extradite is insufficient.
This is because of the
various restrictions on the provision’s applicability that are
set out in subsections (a) to (c).
[42] It is true, as
the Supreme Court of Appeal noted, that jurisdiction has
traditionally been limited to crimes occurring within
a state’s
territory, and that international terrorism conventions have, of
necessity, relaxed this limitation.
[66]
Before this Court, counsel for Mr Okah urged that a wide
reading of jurisdiction would violate principles of international

comity.  This argument cannot be sustained.
[43] While it is
true that territoriality has been the traditional basis on which
courts establish jurisdiction, international and
South African
jurisprudence recognise other methods of asserting jurisdiction.
[67]
Comity concerns fall away in cases where there is no
infringement on the sovereignty of another state.  This is
particularly
true when the crimes over which a court asserts
jurisdiction have an international dimension.
[68]
We should not, through a narrow interpretation of
section 15(1), mistakenly perpetuate an historical
disinclination
to extra-territoriality.
Section 1(4) of the
Act
[44] Mr Okah
belatedly sought to revive a claim for exemption under section 1(4)
of the Act,
[69]
which was abandoned before the Supreme Court of Appeal.
Section 1(4) of the Act exempts certain acts from the definition

of terrorism, and, thus, prosecution under the Act.  To fall
under section 1(4), the following criteria must all be met: (1) the

act must have taken place within the context of a “struggle
waged by peoples”; (2) that struggle must be “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”; and (3) the act must be taken “in
accordance
with the principles of international law, especially
international humanitarian law”.
[70]
[45] This
application for exemption under section 1(4) cannot be countenanced.
Not only is the evidential material relating
to the first two
criteria wholly insufficient for this Court to make a determination
in favour of Mr Okah, but the evidential material
that is available
indicates that the third criterion has not been met.  Therefore,
section 1(4) does not apply, and Mr Okah
cannot rely on it for
exemption from prosecution.
[46] The first two
criteria of the section 1(4) exemption raise many thorny factual and
conceptual questions, both in the abstract
and in the facts here.  Do
those for whose rights MEND fought count as a “people”
contemplated by the Act?  Can
one’s own government, or can
foreign corporations, be “alien or foreign forces”?  Can
a well-grounded complaint
about relentless, life- and
livelihood-threatening environmental degradation be the basis for a
legitimate right to self-determination
and national liberation?
[71]
[47] The questions
that arise cannot and should not be answered here.  This is
because evidence relevant to determining them
was not properly led
during the trial.  Consequently, the record does not enable us
to make any sort of determination that
might have assisted Mr
Okah.
[72]
[48] More
particularly, those questions need not be answered for a narrower
reason.  This is because Mr Okah’s actions
were not in
accordance with international humanitarian law.
[73]
Indeed, the High Court, in rejecting Mr Okah’s
section 1(4) argument, focussed on the legitimacy of Mr Okah’s

actions.
[49] One of the
cornerstones of international humanitarian law is the obligation to
distinguish between combatants and civilians
and between military
objectives and civilian objects.  Military action may not
directly target civilians, nor may it be taken
with indifference to
the effects on the civilian population.  Furthermore, particular
means and methods of warfare may be
unlawful because they are, either
by their nature or use, indiscriminate.
[74]
[50] The undisputed
facts before the trial court establish that both the Warri and Abuja
bombings were carried out in clear violation
of international
humanitarian law.
[75]
Each bombing entailed two sets of explosives crammed into
vehicles with timing devices set to delay the detonation of the

second vehicle until after the first.  As the Supreme Court of
Appeal noted, the intention was deadly.  And cruel.
It was
that “a crowd would be attracted to the site of the first
explosion, which would then be caught in a blast zone of
the second
explosion, resulting in maximum injury and death”.
[76]
[51] Counsel for Mr
Okah contended only feebly that the bombings were not aimed at
civilian targets, and that they were not designed
to inflict maximum
damage, including killing and maiming innocent people.  The
submission is not tenable.  It flies in
the face of the
established and uncontested facts.  And, even if the bombings
had a limited aim or design, as contended, they
would remain grossly
indiscriminate and, thus, in breach of international humanitarian
law.
[52] The result is
that Mr Okah’s section 1(4) argument can and should be decided
on narrow grounds, without attempting to
decide the broader questions
that may also be at issue.  The narrow facts are that the acts
in issue plainly violated international
humanitarian law and,
therefore, forfeited protection under the statute’s exemption
under section 1(4).
The special entries
[53] Belatedly, Mr
Okah also sought to bring three further issues before this Court.
These three issues arose from Mr Okah’s
application at the
trial court to make special entries on the record regarding three
alleged irregularities.
[77]
Section 317
of the
Criminal Procedure Act governs
special
entries at the close of a criminal trial.  An accused person may
“on good cause” shown make an application
for an
irregularity or illegality to be entered into the record either in
the course of his or her trial or within 14 days of conviction.
[54] The threshold
for granting special entries is far lower than that required for
granting leave to appeal.
[78]
Leave to appeal requires reasonable prospects on appeal.  By
contrast,
section 317(1)
spells out that any irregularity or
illegality must be entered on the record—
“unless the court to which . . . the application for a special
entry is made is of the opinion that the application is not
made bona
fide or that it is frivolous or absurd or that the granting of the
application would be an abuse of the process of the
court.”
[55] In
Xaba
,
the Appellate Division interpreted this to mean “that the power
of a trial judge to refuse to make a special entry of an
alleged
irregularity on the record is confined within very narrow
limits”.
[79]
That Court affirmed its earlier decisions in
Nzimande
[80]
and
Nafte
, which held that a special entry should be made even
where there are scant prospects of success on appeal—
“[i]f the incident of procedure which it is sought to make the
subject of a special entry is
in any way capable
of being
regarded as an irregularity or illegality, however little argument
there may be advanced in support of it, and however
little merit the
presiding Judge may consider there is in the application.”
[81]
[56] These
principles are sound, and this Court embraces them.  They mean
that, in assessing Mr Okah’s application for
special entries,
this Court must consider (1) whether the subjects of the special
entries are “in any way capable”
of being interpreted as
irregularities, and if so, (2) whether the irregularities should be
excluded from the record because the
application is in bad faith,
frivolous or absurd, or because granting the application would amount
to an abuse of court processes.
[57] Consequently,
even if the subject of a special entry is an irregularity, a trial
court could still rightly dismiss the application
if one or more of
the
section 317
exceptions were to apply.  If, however, a
trial court makes a special entry under
section 317
, an accused
may as of right note an appeal under
section 318
,
[82]
and leave to appeal is automatically afforded.
[58] Like Mr Okah’s
attempt to claim exemption under section 1(4) of the Act, this
application for special entries must fail.
This is not on the
formalistic basis that the Supreme Court of Appeal has refused leave
to appeal against the trial court’s
refusal to make the three
special entries.  Indeed, it is true that, after the Supreme
Court of Appeal refused leave to appeal
in 2013, Mr Okah took no
further action in relation to the special entries until the week
before the initial set-down in this Court.
Nevertheless, the
reason is rather substantive.  It is that the evidential
material is wholly insufficient to make a determination
in favour of
Mr Okah.  That was the reason why the High Court refused to
make these special entries on the record.
That reason remains
good.
[59] I now examine
in more detail why this is so.
Mr Osagie’s presence in court
[60] The first
application was based on the presence of Mr Clifford Osagie in the
trial court.  Mr Okah alleges that, as a
member of the Nigerian
State Security Services, Mr Osagie was placed in court deliberately
to intimidate witnesses into testifying
against him.  He
contends that Mr Osagie’s presence was a direct threat to the
trial.  He seeks to bring new evidence
on affidavit of Mr
Osagie’s involvement in state sanctioned torture in
Nigeria.  He seeks to call into question
the credibility of
state witnesses’ testimony on the basis that they were under
threat by Mr Osagie.  He insists that
he was not aware of Mr
Osagie’s position in the State Security Services until the
trial had ended.
[61] Mr Osagie’s
presence at trial is capable of being interpreted as an irregularity
and, thus, meets the first part of the
test for admission of a
special entry.  However, the application for special entry
nonetheless fails because granting it would
amount to an abuse of
court processes.
[62] First, there
was no evidence establishing that Mr Osagie was a State Security
Services “agent”.  Before us,
Mr Okah’s
counsel claimed that there was a concession by the State that he
was.  That is not so.  On the contrary,
the affidavit
submitted on behalf of the State recorded only that Mr Osagie was
“employed by the State Security Department
as a prosecutor
”
– not an “agent”.  What is more, Mr Okah
provided no plausible basis for inferring that Mr Osagie’s

presence during the trial was intrinsically sinister or that it did
in fact intimidate the state witnesses.  The sole evidence
Mr
Okah relied on came from affidavits that his brother, Mr Charles
Tombra Okah, and one other person, Mr Obi Nwabueze,

supplied after the High Court convicted him.  These made vague
and unsubstantiated claims against Mr Osagie without affording

any basis for determining their credibility.
[63] Second, the
State provided persuasive evidence, including from Mr Osagie
himself, indicating that Mr Okah knew Mr Osagie
– and that he
even knew his position in the state security apparatus before he
encountered him during the High Court
proceedings.  It is
also clear that Mr Okah is a person of considerable agency and
personal force.  At no stage, while
the trial was proceeding,
did he raise a murmur about Mr Osagie’s presence and its
supposed impact.  It is inconceivable
that Mr Okah would
not have complained immediately if Mr Osagie, by conduct or by his
mere presence, was intimidating the
state witnesses.
[64] In argument
before this Court, counsel for Mr Okah was obliged to fall back on
the contention that the perception had been
created that Mr Osagie’s
presence was improper – and that this was enough to make the
trial unfair.  But this,
too, is without merit.  No
perception of impropriety can reasonably be inferred from the
record.  The Nigerian government
sent a prosecutor to South
Africa to observe what transpired in the trial here.  That
person had been involved in the trial,
in Nigeria, of those
implicated in the self-same Warri and Abuja bombings.  The
propriety of this can hardly be impugned.
[65] Even if on
these scanty allegations Mr Osagie’s presence at the trial
could conceivably have given rise to an irregularity,
the fact is
that Mr Okah’s belated raising of the special entry is a
last-ditch attempt to re-open evidential proceedings
that
conclusively implicated him in terrorist activity.  Granting the
application for admission of this special entry would
have
constituted an abuse of court processes.  It falls into the
section 317 exclusions, and the trial court rightly dismissed
it.
Letters of request
[66] The second
basis on which Mr Okah seeks to impugn his trial is the trial court’s
failure to issue letters of request
on his behalf under section 2(1)
of the International Co-operation in Criminal Matters Act.
[83]
This provides that, while a trial is in progress, the presiding
officer “may” make a request to a foreign state
for
assistance securing testimony from witnesses in that state.
Therefore, issuing letters of request falls within the High
Court’s
discretion.  An appellate court will not interfere in the
exercise of discretion unless it determines that the
High Court
failed to exercise its discretion judicially, had been influenced by
wrong principles or a misdirection of facts, or
reached a decision
that no reasonable court would have made.
[84]
[67] It is true
that, during his trial, Mr Okah initiated an application for certain
witnesses in Nigeria to be procured.
In fact, in an attempt to
assist him to do so, the trial judge postponed the trial twice.
But, on 3 December 2012, Mr Okah’s
counsel placed on record
that he was unable to secure the presence of the witnesses.  That
being so, he closed his case.
[68] In closing his
case, Mr Okah complained of obstruction by the Nigerian government.
This was because it insisted that
Mr Okah had to comply with the
correct procedures in international law and could not simply issue
South African subpoenas to secure
Nigerian witnesses from Nigeria.
The Nigerian government referred to an extradition and mutual legal
assistance treaty between
Nigeria and South Africa.
[85]
In this Court, the State conceded that this treaty had not yet been
brought into effect at the time of the trial (it has
still not been),
but urges that this is “of no consequence” because
section 2(1) is “clearly applicable”.
[69] This means that
Mr Okah was obliged to comply with section 2(1) before the Nigerian
government could act on his request.
He failed to do so.
[70] The decision
not to persist with the request to call the Nigerian witnesses in
these circumstances was that of counsel on behalf
of Mr Okah.
It seems to have been soundly based.  In any event, Mr Okah is
bound by the decision of his counsel, taken
in his presence, unless
he can show that the incompetence of his counsel vitiated the
fairness of his trial.
[86]
[71] During oral
argument in this Court, counsel for Mr Okah was asked whether he now
contended that there had been a mistrial through
incompetent
representation.  He hedged.  The most he was willing to say
was that the conduct of Mr Okah’s former
counsel “borders
on mistrial”.  This half-hearted submission was
understandable.  Nothing in the record suggests
anything other
than that Mr Okah was competently represented at every stage of the
trial, and moreover that his defence was conducted
under close
scrutiny by himself.  There can be no suggestion of a mistrial
because Mr Okah’s former counsel failed
to call any
Nigerian witnesses, nor on the basis that the trial court did not
issue letters of request.
[72] Considering Mr
Okah’s counsel explicitly abandoned this point, and there is no
evidence of incompetent representation
to indicate a mistrial, it is
untenable to contend now that the trial judge’s failure to
issue letters of request amounts
to an irregularity.  Moreover,
the High Court exercised its discretion judicially, and there is no
basis for this Court to
interfere.  Therefore, the trial court
rightly dismissed this application for special entry.
Consular access
[73] Mr Okah further
contended that an irregularity occurred in relation to the duty to
afford him consular access under Article
7(3) of the Terrorist
Bombings Convention.  Article 7(3)(a) and (b) provides that
a suspected terrorist has the right
to be informed of his or her
rights to “[c]ommunicate without delay with the nearest
appropriate representative of the state
of which that person is a
national or which is otherwise entitled to protect that person’s
rights” and to “[b]e
visited by a representative of that
state”.  Article 7(4) of the Terrorist Bombings
Convention provides:
“The rights referred to in paragraph 3 shall be exercised in
conformity with the laws and regulations of the state in the

territory of which the offender or alleged offender is present,
subject to the provision that the said laws and regulations must

enable full effect to be given to the purposes for which the rights
accorded under paragraph 3 are intended.”
[74] The State
correctly notes that Article 7(3) rights are intended to protect fair
trial rights, similar to those afforded by
the South African
Constitution.  However, the Terrorist Bombings Convention
specifically requires that a suspect be informed
of the right to
consular assistance.  The importance of that right cannot be
trivialised.  Nor can we assume that the
right is waived if a
person acquires permanent residence in South Africa – as
Mr Okah did, in 2007 – where the
person remains a
“national” of another state – as Mr Okah did.
[75] Although there
is a dearth of case law elucidating Article 7(3), the obligation it
places on states is analogous to that created
by Article 36(1)(b) of
the Vienna Convention on Consular Relations.
[87]
It is therefore helpful to consider some of the ample
comparative precedent on Article 36 of the Vienna Convention on
Consular
Relations.
[76] In
LaGrand
(Germany v United States of America)
,
[88]
the International Court of Justice heard a dispute concerning two
brothers who had lived in the United States since childhood but
had
never acquired nationality of that country.  They were arrested
on suspicion of murder but were not informed of their
right to
consular access.  The Court considered the requirement of
notifying the relevant consular authorities “without
delay”
and alerting the accused person of that right.
[89]
The failure to do so was held to be a violation of rights under
Article 1 of the Optional Protocol to the Vienna Convention
on
Consular Relations.
[90]
As a result, the Court concluded that the United States should “allow
the review and reconsideration of the conviction
and sentence by
taking account of the violation of rights set forth in the [Vienna]
Convention”.
[91]
[77] The High Court
made two findings here.  It found that Mr Okah was not warned of
his right to consular assistance, and
that this omission amounted to
an irregularity in his trial.  The Court nevertheless concluded
that this did not imperil the
fairness of the trial and for this
reason refused the special entry.
[78] Is Mr Okah’s
complaint about the irregularity made in bad faith, frivolous or
absurd, or an abuse of court process?
It would seem not.
Bad faith or abuse of court process requires intention on the part of
the accused person to mislead or
misuse the courts.
[92]
There is no basis for inferring bad faith on Mr Okah’s part.
And invoking a breach of South Africa’s international

obligations in trying a foreign national in its courts cannot be said
to be frivolous or absurd.
[79] As a result, I
conclude the High Court erred in refusing to make a special entry
regarding the State’s failure to notify
Mr Okah of his Article
7(3) right to consular access.  The High Court’s decision
must be reversed.  A special entry
must be made.
[80] The consequence
is that
section 318
of the
Criminal Procedure Act now affords
Mr Okah
a right of appeal against his entire conviction on the basis of the
special entry now made.
[81] In
Xaba
,
the Appellate Division established that whether remittal is necessary
pursuant to a special entry made on appeal depends on whether

everything relating to it has been fully canvassed and whether the
irregularity is so gross as to vitiate the proceedings.
[93]
This Court has the benefit of the full record and transcripts
of the High Court.  Both Mr Okah and the State afforded
the
Court the benefit of written and oral argument on how denying
consular access may have impinged on the fairness of Mr Okah’s

trial.  Nothing in all this evidences any irregularity that
could render Mr Okah’s trial unfair.  It is therefore

not necessary to remit the matter to the High Court.  This
Court is capable of deciding the appeal.
[94]
[82] In determining
the appeal, this Court must consider
section 322(1)
of the
Criminal
Procedure Act.  This
provides that “no conviction or
sentence shall be set aside or altered by reason of any irregularity
or defect in the record
or proceedings, unless it appears to the
court of appeal that a failure of justice has in fact resulted from
the irregularity”.
A failure of justice has in fact
occurred when the irregularity affects the outcome.
[95]
[83] Did the failure
to notify Mr Okah of his right to consular access result in a failure
of justice?  The answer is No.
[84] As the High
Court noted, Mr Okah’s own complaint was not that the omission
vitiated the entire trial; his complaint was
in fact much narrower
and more specific.  It sprang from the emollient evidence a
Nigerian official gave during the trial.
The official was
Mr Godsday Peter Orubebe, Minister of Niger Delta Affairs.
He testified that, had Mr Okah approached
the authorities, “a
different solution might have been arrived at”.
[96]
Mr Okah’s complaint seems to be directed, belatedly, at now
establishing “a different solution”.
[85] But this,
perhaps poignantly, is to clutch at straws.  The bombings took
place, and terrible carnage resulted.  The
trial and this appeal
are the result.  No denial of consular access can change what
happened, and Mr Orubebe’s conciliatory
statement cannot
ameliorate Mr Okah’s responsibility for the carnage he caused.
[86] There is an
even more practical point.  The entitlements that would have
accrued to Mr Okah had he been informed of his
Article 7(3) rights
under the Terrorist Bombings Convention were, in any event, in
practical terms, bestowed upon him at the trial.
A Nigerian
consular representative was present in court for most of the trial.
This person could readily have been approached
to afford Mr
Okah any home-country assistance he may have needed or sought.
[97]
In the vivid language of the trial judge, had Mr Okah at any
stage wanted consular assistance, “then he needed merely
to
have raised his hand and stretched out his arm towards the consular
representative (a very well dressed lady)
[98]
who sat in court, just a few rows behind him”.
[99]
Whether or not Mr Okah knew of his right, he was in substance not
prejudiced in any way.
[87] To revert to Mr
Orubebe, he was well-acquainted with Mr Okah, whom he said he
regarded as a “friend”.  For
this reason, the trial
court was right to conclude that “failure to have afforded the
accused the necessary warning in terms
of Article 7 did not render
this trial unfair”.
[100]
[88] The blunt
reality is that it was Mr Okah himself who did not approach the
Nigerian consulate – and this was presumably
because he was
persona non grata
in Nigeria.
[101]
More grimly, he was not extradited to Nigeria because, had he stood
trial there, he would have faced the death penalty.
[89] The clincher is
this.  The trial court found that Mr Okah did in fact receive
some assistance from Nigerian authorities.
[102]
These findings of fact were not challenged before us.
They drove counsel for Mr Okah to a more speculative contention.

This was that the warning was required to enable him to explore
unspecified “alternatives”.  That, then, is the

high-water mark of Mr Okah’s case on this point.  And it
is wholly unpersuasive.  It also has no bearing on the
South
African courts’ jurisdiction to hear this matter, or the trial
court’s obligation to convict where a terrorism
offence is
proven.
[90] Hence, although
the special entry on Mr Okah’s right to be informed of his
right to consular access is now made, his
appeal to overturn his
conviction on the basis of that special entry fails under
section
322(1)
of the
Criminal Procedure Act.  The
application to admit
the two further special entries is dismissed.
[91] The State’s
application for leave to appeal must succeed.  The convictions
overturned in the Supreme Court of Appeal
must be reinstated together
with the sentences the High Court imposed.  Both of Mr Okah’s
applications for leave to
appeal must be dismissed, barring the
special entry on consular access, in which the appeal for the special
entry to be made succeeds.
The appeal against his entire
conviction on the basis of the special entry that has been made in
this Court is dismissed.
Order
[92] The following
order is made:
1. The application for leave to appeal by the State is granted.
2. The appeal by the State is upheld.
3. The order of the Supreme Court of Appeal upholding Mr Okah’s
appeal is set aside and is substituted with:
“The
appeal is dismissed.”
4. Mr Okah’s application for leave to appeal regarding
exemption from prosecution under
section 1(4)
of
the
Protection of Constitutional Democracy against Terrorist and Related
Activities Act is dismissed.
5. The portion of Mr Okah’s application for leave to appeal
regarding the special entry on the High Court’s failure
to
inform Mr Okah of his right to consular access under Article 7(3)
of the International Convention for the Suppression of
Terrorist
Bombings is granted and the special entry is made.
6. Mr Okah’s appeal against his entire conviction on the basis
of this special entry is dismissed.
7. The remaining portions of Mr Okah’s application for leave to
appeal regarding the special entries are dismissed.
For the Applicant in
CCT 315/16: W Trengove SC and P Khoza instructed by the State
Attorney.
For the Respondent
in CCT 193/17: R C Macadam instructed by the State Attorney.
For the Respondent
in CCT 315/16 and for the Applicant in CCT 193/17: A P S Nxumalo and
P M Mahlatsi instructed by PI Uriesi Attorneys.
For the First Amicus
Curiae: M Du Plessis and A Coutsoudis instructed by Nortons Inc.
For the Second
Amicus Curiae:K Premhid instructed by Webber Wentzel Attorneys.
[1]
33 of 2004.
[2]
The 13th count of which Mr Okah was convicted was for threatening to
engage in terrorist activity against South African
nationals
and companies in Nigeria in contravention of section 14 of the Act:
S v Okah
2015 (2) SACR 561
(GJ) (Claassen J) (High Court
judgment I) at para 4.  The Supreme Court of Appeal acquitted
Mr Okah on this count,
and the State does not seek to appeal:
S
v Okah
[2016] ZASCA 155
;
2017 (1) SACR 1
(SCA) (
Navsa
JA and Van der Merwe JA; Shongwe JA, Dambuza JA and Schoeman AJA
concurring)
(Supreme Court of Appeal judgment) at paras 24
and 49.
[3]
High Court judgment I id at para 143.
[4]
Id at para 306.
[5]
Supreme Court of Appeal judgment above n 2 at paras 11 and 13.
[6]
Id at para 55.
[7]
Id
at paras 39-40.
[8]
Id at paras 23 and 55.
[9]
Mr Okah at no stage put in issue the propriety of the High Court’s
exercise of its discretionary power in passing sentence
on him.
[10]
Section 1(4) provides:
“Notwithstanding any provision of this Act or any other law,
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, 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 in accordance with the said Charter, shall not, for any
reason, including for purposes of prosecution or extradition,
be
considered as a terrorist activity, as defined in subsection (1).”
[11]
51 of 1977.  Section
317(1) provides:
“
If an accused is of the view that any of
the proceedings in connection with or during his or her trial before
a High Court are
irregular or not according to law, he or she may,
either during his or her trial or within a period of 14 days after
his or her
conviction or within such extended period as may upon
application (in this section referred to as an application for
condonation)
on good cause be allowed, apply for a special entry to
be made on the record (in this section referred to as an application
for
a special entry) stating in what respect the proceedings are
alleged to be irregular or not according to law, and such a special

entry shall, upon such application for a special entry, be made
unless the court to which or the judge to whom the application
for a
special entry is made is of the opinion that the application is not
made bona fide or that it is frivolous or absurd or
that the
granting of the application would be an abuse of the process of the
court.”
[12]
High Court judgment I above n 2 at para 12.
[13]
Id at paras 1 and 39.
[14]
Id at para 1.
[15]
Id at paras 46 and 150-1.
[16]
Id at para 46.
[17]
Id at para 47.
[18]
Id at para 52.
[19]
Id.
[20]
Id at para 53.
[21]
Id at para 55.
[22]
Id at para 3.
[23]
Supreme Court of Appeal judgment above n 2 at paras 46-7.
[24]
Id.
[25]
Id at para 45.
[26]
High Court judgment I above n 2 at para 59.
[27]
Supreme Court of Appeal judgment above n 2 at para 14.
[28]
High Court judgment I above n 2 at para 60.
[29]
Id at para 3.
[30]
Supreme Court of Appeal judgment above n 2 at para 48.
[31]
High Court judgment I above n 2 at para 8.
[32]
Id.
[33]
Id.
[34]
75 of 1996.
[35]
S v Okah
[2013] ZAGPJHC 85 (Claassen J) (High Court judgment
II) at paras 1-2.
[36]
Id at para 39.
[37]
Okah v S
[2013] ZAGPJHC 413 (Claassen J) (High Court
judgment III) at para 8.  As indicated above, leave to appeal
to the Supreme
Court of Appeal was granted also on count 13.
The Supreme Court of Appeal set aside that conviction: Supreme Court
of Appeal
judgment above n 2 at paras 24 and 49; the State does not
put this acquittal in issue.
[38]
Supreme Court of Appeal judgment above n 2 at paras 27-30.
[39]
Id at para 35.  Section 15(1) provides:
“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.”
[40]
See [20].
[41]
Supreme Court of Appeal judgment above n 2 at para 38.
[42]
Id at paras 39-40.
[43]
Id at para 43.
[44]
Id at para 48.
[45]
The directions, issued on 15 November 2017, directed the Registrar
to serve the parties’ written arguments on and make
all other
papers in the matter available to the Southern Africa Litigation
Centre, the International Committee of the Red Cross,
Dr Hannah
Woolaver of the University of Cape Town and her associates, and
Professor Max du Plessis of the Institute for Security
Studies.
[46]
See, for example,
Gcaba v Minister for Safety and Security
[2009] ZACC 26
;
2010 (1) SA 238
(CC);
2010 (1) BCLR 35
(CC) at para
75 and
Chirwa v Transnet Limited
[2007] ZACC 23
;
2008 (4) SA
367
(CC);
2008 (3) BCLR 251
(CC) at paras 155 and 169, where this
Court pronounced on the concurrent jurisdiction of the Labour Court
and the High Court.
[47]
Section 167(3)(b)(ii) of the Constitution.
[48]
See
Paulsen v Slip Knot Investments 777 (Pty) Ltd
[2015] ZACC
5
;
2015 (3) SA 479
(CC);
2015 (5) BCLR 509
(CC) at paras 17-8.
[49]
Section 15(2) provides:
“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.”
[50]
Supreme Court of Appeal judgment above n 2 at para 38.
[51]
This is helpfully illustrated by
Continental Illinois Bank v
Greek Seamen’s Pension Fund
1989 (2) SA 515
(D) at 528E-F,
where Thirion J noted that “with regard to”, “in
respect of” and “with respect or
reference to”—
“are all
expressions of wide import and are used merely to relate the claim
to the description of it.”
[52]
See section 11 of the Act.
[53]
A court would have jurisdiction over the terrorism crime only if the
conjunctive nexus requirements in section 15(2) were
met.
It would have jurisdiction over the terrorism-financing crimes if
any of the disjunctive requirements in section 15(1)(a)-(c)
were
met, or, alternatively, if the requirements in section 15(2) were
met.
[54]
Section 4 provides:
“(1) Any person who, directly or indirectly, in whole or in
part, and by any means or method—
[acquires, collects, possesses, uses, owns, provides property or
provides financial or economic support]
intending that the property, financial or other service or economic
support, as the case may be, be used, or while such person
knows or
ought reasonably to have known or suspected that the property,
service or support concerned will be used, directly or
indirectly,
in whole or in part—
(i) to commit or facilitate the commission of a specified offence;
(ii) for the benefit of, or on behalf of, or at the direction of, or
under the control of an entity which commits or attempts
to commit
or facilitates the commission of a specified offence
. . .
is guilty of an offence.
(2) Any person who, directly or indirectly, in whole or in part, and
by any means or method—
(a) deals with, enters into or facilitates any transaction or
performs any other act in connection with property which such person

knows or ought reasonably to have known or suspected to have been
acquired, collected, used, possessed, owned or provided—
(i) to commit or facilitate the commission of a specified offence;
(ii) for the benefit of, or on behalf of, or at the direction of, or
under the control of an entity which commits or attempts
to commit
or facilitates the commission of a specified offence
. . .
is guilty of an offence.
(3) Any person who knows or ought reasonably to have known or
suspected that property is property referred to in subsection (2)(a)

and enters into, or becomes concerned in, an arrangement which in
any way has or is likely to have the effect of—
(a) facilitating the retention or control of such property by or on
behalf of—
(i) an entity which commits or attempts to commit or facilitates the
commission of a specified offence
. . .
is guilty of an offence.”
[55]
Section 23 is titled “Freezing order”.  It
provides:
(1) A High Court may, on ex parte application by the National
Director to a judge in chambers, make an order prohibiting any

person from engaging in any conduct, or obliging any person to cease
any conduct, concerning property in respect of which there
are
reasonable grounds to believe that the property is owned or
controlled by or on behalf of, or at the direction of—
(a) any entity which has committed, attempted to commit,
participated in or facilitated the commission of a specified
offence;
or
. . .
(2) An order made under subsection (1) may include an order to
freeze any such property.”
[56]
Supreme Court of Appeal judgment above n 2 at para 38.
[57]
Another absurd result would be that courts would be able to make
section 23 freezing orders only in relation to financing offences

but not in relation to the offence of terrorism.  Counsel for
Mr Okah, in a spirited address, conceded that this is absurd,
but he
urged this Court to sever this consequence from its interpretation
of the statute as a whole.  He enjoined us to
read the impact
of the Supreme Court of Appeal’s interpretation on section 23
disjunctively, and separately to “test
absurdity in each and
every section” of the Act.  This approach is not
permissible.  It is well established in
this Court’s
jurisprudence that the provisions of a statute must be given a
sensible and cohesive meaning in light of the
wording, background
and context as a whole: see, for example,
AB v Minister of Social
Development
[2016] ZACC 43
;
2017 (3) SA 570
(CC);
2017 (3) BCLR
267
(CC) at para 274.
[58]
See [20].
[59]
See Supreme Court of Appeal above n 2 at para 33.
[60]
As the statute is clear on its face, the presumption under
Roman-Dutch law that in “case of doubt, we are obliged to

interpret [penal] prohibitions restrictively” does not apply:
see
Democratic Alliance v African National Congress
[2015]
ZACC 1
;
2015 (2) SA 232
(CC);
2015 (3) BCLR 298
(CC) at paras
129-30.  Even if the statute were not clear, the presumption
would likely not apply because the ambiguity
relates to jurisdiction
and not to the definition of a crime.  The rationale for the
presumption is that a “subject
must know clearly and certainly
when he or she is subject to penalty by the state”:
Democratic
Alliance
at para 130.  It is clear that Mr Okah’s
activities fall within the definition of the offence of terrorism in

section 2 of the Act.
[61]
Cool Ideas 1186 CC v Hubbard
[2014] ZACC 16
;
2014 (4) SA 474
(CC);
2014 (8) BCLR 869
(CC) at para 28(a) and
City Capital
SA Property Holdings Ltd v Chavonnes Badenhorst St Clair Cooper N.O.
[2017] ZASCA 177
; 2017 JDR 1955 (SCA) at para 26.
[62]
The preamble lists 14 instruments that South Africa is either bound
by, including UN Security Council Resolution 1373/2001 and
the OAU
Convention for the Prevention and Combating of Terrorism, 14 July
1999, or “desires to become a party to”.
[63]
See [32].  The preamble also explicitly states that one of the
purposes of the Act is to provide broad jurisdiction:
“And realizing 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
.”
[64]
As of the date of commencement of the Act, South Africa was party to
the Convention on Offences and Certain Other Acts Committed
on Board
Aircraft, 14 September 1963; Convention for the Suppression of
Unlawful Seizure of Aircraft, 16 December 1970; Convention
for the
Suppression of Unlawful Acts against the Safety of Civil Aviation,
23 September 1971; Convention on the Prevention and
Punishment of
Crimes against Internationally Protected Persons including
Diplomatic Agents, 14 December 1973; International Convention

against the Taking of Hostages, 17 December 1979; Protocol for the
Suppression of Unlawful Acts of Violence at Airports Serving

International Civil Aviation, 24 February 1988; Convention on the
Marking of Plastic Explosives for the Purpose of Detection,
1 March
1991; International Convention for the Suppression of Terrorist
Bombings (Terrorist Bombings Convention), 15 December
1997; and
International Convention on the Suppression of the Financing of
Terrorism, 9 December 1999.
The preamble of the
Act acknowledges UN Security Council Resolution 1373/2001 as binding
on all Member States.  UN Security
Council Resolution 1373/2001
requires that states shall—
“[e]nsure that any person who participates in the financing,
planning, preparation or perpetration of terrorist acts or
in
supporting terrorist acts is brought to justice and ensure that, in
addition to any other measures against them, such terrorist
acts are
established as serious criminal offences in domestic laws and
regulations and that the punishment duly reflects the
seriousness of
such terrorist acts.”
[65]
The duty to prosecute or extradite can be found in several
international and regional instruments to which South Africa is a

party and which are mentioned in the preamble of the Act.  For
example, Article 6(4) of the Terrorist Bombings Convention
obliges
South Africa to—
“take such measures as may be necessary to establish its
jurisdiction over the offences set forth in Article 2 in cases
where
the alleged offender is present in its territory and it does not
extradite that person to any of the States Parties which
have
established their jurisdiction.”
Article 7(4) of the
International Convention for the Suppression of the Financing of
Terrorism obliges South Africa to—
“take such measures as may be necessary to establish its
jurisdiction over the offences set forth in Article 2 in cases
where
the alleged offender is present in its territory and it does not
extradite that person to any of the States Parties that
have
established their jurisdiction.”
Article 6(4) of the
OAU Convention for the Prevention and Combating of Terrorism
provides:
“Each State Party shall likewise take such measures as may be
necessary to establish its jurisdiction over the acts set
forth in
Article 1 in cases where the alleged offender is present in its
territory and it does not extradite that person to any
of the States
Parties which have established their jurisdiction.”
[66]
Supreme Court of Appeal judgment above n 2 at paras 27-31.
[67]
Other methods of asserting jurisdiction include subjective and
objective territoriality, protection of the state, nationality,

passive personality and universal jurisdiction: see Dugard
I
nternational Law: A South African Perspective
4 ed (Juta
Ltd, Cape Town 2011) at 148-57.  See also
S v Basson
[2005]
ZACC 10
;
2007 (3) SA 582
(CC);
2005 (12) BCLR 1192
(CC) at paras
223-5.
[68]
While true universal jurisdiction applied only to crimes under
customary international law (piracy, slave trading, war crimes,

crimes against humanity and torture)—
“in recent years a number of international crimes have been
created by multilateral treaties, which confer wide jurisdictional

powers upon state parties.  Here there is a type of
quasi universal jurisdiction in that signatory states are
required
to prosecute or extradite persons who happen to be present
in their territory.”
Dugard id at 154.
See also
National Commissioner of The South African Police
Service v Southern African Human Rights Litigation Centre
[2014]
ZACC 30
;
2015 (1) SA 315
(CC);
2014 (12) BCLR 1428
(CC) at para 74,
noting that the—
“cornerstone of the universality principle, in general, and
the Rome Statute, in particular, is to hold torturers, genocidaires,

pirates
and their ilk
, the so-called
hostis humani
generis
, the enemy of all humankind, accountable for their
crimes, wherever they may have committed them or wherever they may
be domiciled.”
We need not
determine whether terrorism has crystallised into a crime under
customary international law, though the plethora of
UN resolutions,
treaties and state practice suggests that it has.  See
Interlocutory Decision of the Appeals Chamber of the Special
Tribunal for Lebanon
, Case No STL-11-01/1 at para 85.  It
is enough to note that there are 170 parties to the Terrorist
Bombings Convention,
including both South Africa and Nigeria.
[69]
See above n 10.
[70]
Section 1(5) complicates the applicability of section 1(4), though
it need not be addressed here.  Section 1(5) reads:
“Notwithstanding
any provision in any other law, and subject to subsection (4), 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.”
[71]
See also Cachalia “Counter-Terrorism and International
Cooperation Against Terrorism – An Elusive Goal: A South
African Perspective”
2010
SAJHR
510
at 519-25.
[72]
Section 1(4) was raised belatedly in argument at the very end of the
High Court trial.  No evidential inquiry took place
during the
trial regarding its terms.  The claim was abandoned before the
Supreme Court of Appeal and only raised before
this Court one week
before the initial set-down date of 1 August 2017.
[73]
The applicability of international humanitarian
law ordinarily requires the determination that either an
international or non-international
armed conflict exists.
However, under Article 1(4) of the First Additional Protocol to the
Geneva Conventions, 8 June 1977,
“international armed
conflict” includes “armed conflicts in which peoples are
fighting against colonial domination
and alien occupation and
against racist regimes in the exercise of their right to
self-determination”.  Therefore,
it may be assumed that
international humanitarian law will apply in any situation in which
criteria (1) and (2) of section 1(4)
have been met.
[74]
See, for example, Article 51(4) of the First
Additional Protocol to the Geneva Conventions, which states:
“
Indiscriminate
attacks are prohibited.  Indiscriminate attacks are:
(a) those which are not directed at a specific military objective;
(b) those which employ a method or means of combat which cannot be
directed at a specific military objective; or
(c) those which employ a method or means of combat the effects of
which cannot be limited as required by this Protocol; and
consequently, in each such case, are of a nature to strike military
objectives and civilians or civilian objects without distinction.”
[75]
Mr Okah’s actions violated core principles
of international humanitarian law.  Therefore, the Court need
not determine
the applicability of section 1(4) in instances where
only minor violations have been alleged.
[76]
Supreme Court of Appeal judgment above n 2 at para 14.
[77]
The three special entries sought are described in Mr Okah’s
notice of motion as follows:
“The
proceedings in the above matter are irregular in that:
(i) Mr Clifford Osagie, a member of the Nigerian State Security
Services, sat directly across from witnesses, who were participants

in the acts for which the Applicant was tried, during their
testimony;
(ii) The Applicant had not been warned of his rights in terms of
Article 7(3)(a), (b) and (c) of the International Convention
for the
Suppression of Terrorist Bombings;
(iii) The learned Judge should have, in the interests of justice,
issued a letter of request to obtain the Defence’s evidence

from witnesses in Nigeria.”
[78]
See
S v Xaba
1983 (3) SA 717
(A) (
Xaba
) at 731.
[79]
Id.
[80]
R v Nzimande
1957 (3) SA 772 (A) at 774, where
the Appellate Division noted:
“In the light
of the decisions of this Court it could happen, apparently, that a
convicted person might be able to bring
an irregularity appearing on
the record before this Court by way of a special entry even though
he would not be able to obtain
leave to appeal on account of the
same irregularity.”
[81]
R v Nafte
1929 AD 333
at 338-9.
[82]
Section 318(1) provides:
“If a special
entry is made on the record, the person convicted may appeal to the
Appellate Division against his conviction
on the ground of the
irregularity stated in the special entry if, within a period of
twenty-one days after entry is so made or
within such extended
period as may on good cause be allowed, notice of appeal has been
given to the registrar of the Appellate
Division and to the
registrar of the provincial or local division, other than a circuit
court, within whose area of jurisdiction
the trial took place, and
of which the judge who presided at the trial was a member when he so
presided.”
[83]
Section 2(1) provides:
“If it
appears to a court or to the officer presiding at proceedings that
the examination at such proceedings of a person
who is in a foreign
state, is necessary in the interests of justice and that the
attendance of such person cannot be obtained
without undue delay,
expense or inconvenience, the court or such presiding officer may
issue a letter of request in which assistance
from that foreign
state is sought to obtain such evidence as is stated in the letter
of request for use at such proceedings.”
[84]
Trencon Construction (Pty) Ltd v Industrial Development
Corporation of South Africa Ltd
[2015] ZACC 22
;
2015 (5) SA 245
(CC);
2015 (10) BCLR 1199
(CC) at para 88.
[85]
Treaty Between the Government of the Federal Republic of Nigeria and
the Government of the Republic of South Africa on Mutual
Legal
Assistance in Criminal Matters, 28 March 2002.
Article
1(2)(e) of the treaty specifies that mutual assistance between
Nigeria and South Africa will include “transferring
persons in
custody for testimony or other purposes”.  Article 2 then
specifies that requests pursuant to the treaty
would be made through
the Director-General of the Department of Justice and Constitutional
Development, who would then communicate
directly with the designated
Nigerian official.  The treaty goes on to stipulate the form
and required content of the request
at Article 4.
[86]
See
S v Tandwa
[2007] ZASCA 34
;
2008 (1) SACR 613
(SCA) at
paras 7-9.
[87]
The Vienna Convention on Consular Relations, 24 April 1963, provides
that “competent authorities of the receiving state
shall . . .
inform [a national of another state who has been arrested or
committed to prison or to custody pending trial or is
detained in
any other manner] without delay of his [or her] right” to
communicate with consular officials.
[88]
[2001] ICJ Rep 466.
[89]
Id at para 77.
[90]
Optional Protocol to the Vienna Convention on Consular Relations, 24
April 1963.
[91]
LaGrand
above n
88 at para 125.  See also
Avena
and Other Mexican Nationals (Mexico v United States of America)
[2004] ICJ Rep 12 and
Ahmadou
Sadio Diallo (Guinea v Democratic Republic of Congo)
(Merits)
[2010] ICJ Rep 639.
[92]
See, for example,
Price Waterhouse Coopers Inc v National Potato
Co-operative Ltd
[2004] ZASCA 64
;
2004 (6) SA 66
(SCA) at para
50.
[93]
Xaba
above n 78
at 736.
[94]
Id at 735
[95]
See
S v Nkata
1990 (4) SA 250
(A) at 257G, where the
Appellate Division admitted a special entry but held:
“Despite the
comparative seriousness of the irregularity as a matter of
principle, I do not think that, in the circumstances
of the present
case, the conviction of [the] accused . . . was in any way affected
by it, and an appeal based on this special
entry cannot succeed.”
[96]
High Court judgment II above n 2 at para 20.
[97]
Id at para 23.
[98]
We interpret this comment by the trial court, of course, not as
gender-directed, but merely to emphasise that the consular

representative, of whatever gender, was conspicuously present and,
thus, readily accessible to assist Mr Okah should he have

wanted this.
[99]
High Court judgment II above n 2 at para 23.
[100]
Id at para 22.
[101]
Id at para 23.
[102]
Id at para 24.