National Conventional Arms Control Amendment Act

2. Section 3 of the principal Act is hereby amended by the substitution for paragraphs (a), (b), (c) and (d) of the following paragraphs, respectively: ‘‘(a) implement Government policy and applicable legislation regarding trade in [conventional arms in] or possession of controlled items, prohibition of mercenary activity and rendering of certain assistance or services in a country of armed conflict in order to establish, apply and ensure a legitimate, effective and transparent control process in and for the Republic, which— (i) conforms to international law and the guiding principles and criteria contained in section 15 and in section 9 of the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act; and is applicable to the control and regulation of trade in [conventional arms] or possession of controlled items, and to the regulation of the rendering of certain assistance or services in a country of armed conflict; (ii) 25 30 35 40 45 50 55 8 (c) (b) protect the economic and national security interests of the Republic by ensuring adequate control of trade in [conventional arms] controlled items and rendering of certain assistance or services in a country of armed conflict in accordance with the policy referred to in paragraph (a); [and] foster national and international confidence in the Committee’s procedures for control over trade in [conventional arms] controlled items and rendering of certain assistance or services in a country of armed conflict; and fulfil any obligation imposed under the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act.’’. (d) Amendment of section 4 of Act 41 of 2002

3. Section 4 of the principal Act is hereby amended— (a) by the substitution for subsection (1) of the following subsection: ‘‘(1) The Committee must— (a) establish processes and structures necessary for effective control of trade in [conventional arms] and possession of controlled items; (aA) establish processes and structures necessary for effective regulation of the rendering of certain assistance or services in a country of armed conflict in accordance with section 3 of the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act; (b) establish guidelines, structures and processes necessary for the scrutiny and assessment of an application for the issue of a permit under this Act and the Prohibition of Mercenary Activities and Regulation of Rendering of Certain Activities in Country of Armed Conflict Act; (c) where necessary, liaise with relevant Government agencies regard- ing the enforcement of this Act and the Prohibition of Mercenary Activities and Regulation of Rendering of Certain Activities in Country of Armed Conflict Act; 5 10 15 20 25 (d) authorise or refuse the issue of any permit contemplated in section 30 14; (e) (dA) grant or refuse an application for authorisation as contemplated in section 7 of the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conflict Act; ensure that the conditions under which a permit is issued, are complied with; keep a register in the prescribed form of persons involved in trade in [conventional arms] and possession of controlled items; (f) (g) keep a register of every permit issued; and (h) issue reports as specified in section 23.’’; (b) by the substitution for subsection (2) of the following subsection: ‘‘(2) The Committee may— (a) inside or outside the Republic, conduct any investigation into, inspection of and research in connection with any trade in [conventional arms] and possession of controlled items; (b) consult with the Minister with regard to any aspect that falls within (c) the powers of the Minister in terms of this Act; evaluate and comment on trade in [conventional arms] and possession of controlled items; (d) make recommendations to the Cabinet concerning the control of trade in [conventional arms] and possession of controlled items; and (e) direct any subcommittee to make information which it has in its possession available to the Committee, the Cabinet, Parliament or any committee of Parliament.’’; and 35 40 45 50 55 10 (c) by the addition of the following subsections after subsection (3): ‘‘(4) The Committee may determine that a specific quantity or type of any controlled item may only be imported, exported, conveyed, traded in or disposed of in terms of any other Act with the approval of the Committee, in addition to the approval required in terms of any such Act. (5) For the purposes of subsection (4), any application for the import, export, conveyance, trade in or disposal of a controlled item determined in terms of subsection (4), received under the relevant Act, must be submitted to the Committee.’’. Amendment of section 5 of Act 41 of 2002

4. Section 5 of the principal Act is hereby amended by the substitution for subsection (3) of the following subsection: ‘‘(3) The President must designate one member of the Committee as the chairperson and another as the deputy chairperson, such members being Ministers who do not have a line-function interest in trade in [conventional arms] controlled items.’’. Amendment of section 9 of Act 41 of 2002

5. Section 9 of the principal Act is hereby amended— (a) by the substitution in subsection (2) for paragraph (a) of the following paragraph: ‘‘(a) that trade in [conventional arms] and possession of controlled items is conducted in compliance with this Act; and’’; and (b) by the addition of the following subsections: ‘‘(6) (a) The Minister may, with the concurrence of the Committee, designate any employee of the State as an inspector. (b) Any employee designated as an inspector must exercise his or her powers under this Act in consultation with the Inspectorate. (7) In the exercise of powers vested in an inspector in terms of this section, the inspector may call upon a police officer to assist with the execution of that power.’’. Amendment of section 12 of Act 41 of 2002 5 10 15 20 25 30

6. Section 12 of the principal Act is hereby amended by the substitution for subsection (2) of the following subsection: ‘‘(2) In addition to the audit of the financial statements of the Department in terms of the Public Finance Management Act, 1999 (Act No. 1 of 1999), the Auditor-General must audit the [registers and processes contemplated in section 4] affairs of the Committee.’’. 35 Substitution of section 13 of Act 41 of 2002

7. The following section is hereby substituted for section 13 of the principal Act: ‘‘Control over [conventional arms and provision of service] controlled items 40 13. (1) No person may trade in [conventional arms] or possess controlled items referred to in section 27(3), unless that person is registered with the secretariat and in possession of a permit authorised by the Committee and issued by the secretariat. (2) For the purposes of subsection (1) ‘‘possess controlled items’’ does not include the possession of such items under the following circumstances: (a) In the case of firearms, ammunition, prohibited firearms and restricted firearms, referred to in the Firearms Control Act, 2000 (Act No. 60 of 2000), if these items are— 45 50 12 (i) institutions and members of official possessed by official institutions, referred to in Chapter 11 of the Firearms Control Act, 2000, in accordance with the procedures laid down by, or a licence, permit or authorisation issued under, Chapter 11 of the Firearms Control Act, 2000; (iii) (ii) possessed by any person, business, firearms dealer or manu- facturer, security service provider or as part of a public or private collection, in accordance with a licence, permit or authorisation issued or recognised in terms of the Firearms Control Act, 2000; imported, exported, stored, used or transported by a defence force or police force of any country or any multinational or international defence force or policing agency, or possessed by any member of such force or agency while on official duty, by virtue of an exemption from the provisions of the Firearms Control Act, 2000, granted by the Minister of Safety and Security, after consultation with the Ministers of Defence and of Foreign Affairs, by notice in the Gazette; (b) in the case of explosives— (ii) (i) which in terms of the Explosives Act, 2003 (Act No. 15 of 2003), are defined as explosives, unauthorised explosives, authorised explosives or plastic explosives if such explosives are possessed by a person, manufacturer or dealer by virtue of a permit, licence or authorisation issued in terms of that Act; if the transfer, storage, transportation, manufacturing, destruc- tion, distribution or any other use thereof relate to occupational health or occupational safety and are governed and approved by or under the Mine Health and Safety Act, 1996 (Act No. 29 of 1996), or the Occupational Health and Safety Act, 1993 (Act No. 85 of 1993); if the explosives are imported, exported, stored, used, manu- factured or transported by a defence force or police force of any country or any multinational or international defence force or policing agency, by virtue of an exemption from the provisions of the Explosives Act, 2003 (Act No. 15 of 2003), granted by the Minister of Safety and Security to any such force or agency, or any member thereof while on official duty, after consultation with the Ministers of Defence and of Foreign Affairs and by notice in the Gazette; (iii) (c) (d) (e) (f) in the case of controlled goods as defined in section 1 of the Non-Proliferation of Weapons of Mass Destruction Act, 1993 (Act No. 87 of 1993), if such goods are possessed by virtue of a permit issued by the South African Council for the Non-Proliferation of Weapons of Mass Destruction, under section 13(2) of that Act; in the case of radio apparatus as defined in the Electronic Communi- cations Act, 2003 (Act No. 36 of 2003), if such apparatus is possessed by virtue of a licence issued in terms of that Act; in the case of nuclear material, restricted material and nuclear-related equipment and material as defined in section 1 of the Nuclear Energy Act, 1999 (Act No. 46 of 1999), if such material is possessed by virtue of a written authorisation issued in terms of section 34 of that Act; in the case of other controlled items, not mentioned in paragraphs (a) to (e)— (i) if such items are required to be possessed by the security services of the Republic referred to in section 199 of the 5 10 15 20 25 30 35 40 45 50 55 14 (ii) Constitution and security services established by national legislation, in the performance of their functions; if the possession thereof is necessary for the transfer of such controlled item that a permit authorising such possession has been issued and the possession of such controlled item is in accordance with the provisions and conditions stipulated in such permit; and (iii) being a vehicle, aircraft or vessel, if the possession is necessitated for emergency repairs; (i) in the case of maintenance, repair, or upgrade of controlled items— possession is permitted if such possession is only for the purposes of maintenance, repair or upgrade of controlled items belonging to a duly registered person as contemplated in section 13; such possession as referred to in subparagraph (i) is limited to the following conditions: (aa) Maintenance, repair or upgrade must be carried out (ii) (g) within a reasonable time; and (bb) while the controlled items are in possession of the person carrying out the maintenance, repair or upgrade, such person may not use such controlled items for any purpose other than for testing.’’. Amendment of section 14 of Act 41 of 2002

8. Section 14 of the principal Act is hereby amended— (a) by the substitution for subsection (4) of the following subsection: ‘‘(4) A permit issued under subsection (2)— (a) must prescribe the quantity, type and value of the [conventional arms] controlled items, where applicable, which may be transferred or destroyed domestically, exported, re-exported, marketed, im- ported, conveyed, manufactured, traded or brokered thereunder; (b) may prescribe the period within which, the harbour, port or airport through or from which, the person, country or territory from or to which, the route along which and the manner in which the [conventional arms] controlled items in question must be trans- ferred or destroyed domestically, exported, re-exported, marketed, imported, conveyed, manufactured [or], traded or rendered; and (c) may prescribe such other conditions as the Committee deter- mines.’’; (b) by the substitution for subsection (5) of the following subsection: ‘‘(5) An application for a permit for the re-exportation of [conven- tional arms] controlled items must be accompanied by a notification issued by the government of the country from which such [conventional arms] controlled items were originally imported, indicating that government’s consent that such [conventional arms] items may be so re-exported.’’; and (c) by the insertion of the following subsection after subsection (5): ‘‘(5A) Any person who applies for a permit contemplated in this section, must give an undertaking to the Committee in the prescribed form and manner that the re-exportation of controlled items does not violate end-user requirements set by any foreign supplier.’’. 5 10 15 20 25 30 35 40 45 50 Amendment of section 15 of Act 41 of 2002

9. Section 15 of the principal Act is hereby amended by the substitution for paragraphs (d), (e) and (k) of the following paragraphs, respectively: ‘‘(d) avoid transfers of [conventional arms] controlled items to governments that systematically violate or suppress human rights and fundamental freedoms; 55 16 (e) (k) avoid transfers of [conventional arms] controlled items that are likely to contribute to the escalation of regional military conflicts, endanger peace by introducing destabilising military capabilities into a region or otherwise contribute to regional instability; avoid the export of [conventional arms] controlled items that may be used for purposes other than the legitimate defence and security needs of the government of the country of import.’’. 5 Substitution of section 16 of Act 41 of 2002

10. The following section is hereby substituted for section 16 of the principal Act: ‘‘Accountability where [conventional arms] controlled items are exported 10

16. Where [conventional arms] controlled items are exported, and— (a) ownership thereof is transferred, the Committee must satisfy itself that the government of the country of import has given an undertaking, reflected in an end-user certificate, that the [conventional arms] controlled items in question will not be transferred, re-sold or re-exported to any other country without the prior approval of the Committee, acting on behalf of the Government of South Africa; transfer of ownership does not take place, the Committee must— (b) (i) obtain a letter from the government of the country of import the [arms] controlled items in question are stating that intended for demonstration or evaluation purposes and whether they will be returned; or (ii) obtain a letter from the applicant stating that the arms in question are being exported for repair or integration only and will be returned; (c) where there is an undertaking that the [arms] controlled items in question are to be returned, the Committee must satisfy itself that the [conventional arms] controlled items have been returned to the Republic in accordance with the undertaking; the [arms] controlled items in question have been expended during demonstration, the Committee must obtain a certificate from the government of the country of import verifying that fact.’’. (d) 15 20 25 30 Substitution of section 17 of Act 41 of 2002

11. The following section is hereby substituted for section 17 of the principal Act: 35 ‘‘End-user certificate 17. (1) Subject to section 16, whenever [conventional arms] controlled items are exported, a person authorised by the government of the country to which the [arms] controlled items referred to in section 27(3)(a) and (b) are exported must issue an end-user certificate— (a) (b) giving a description of the [conventional arms] controlled items and setting out the name and address of the declared end-user; quantities involved, as well as the use of such items; (c) undertaking that the [conventional arms] controlled items will not be transferred or re-exported to any other [party] person or country without the authorisation of the South African Government; (d) undertaking that proof of importation will be supplied, by way of a [Delivery Verification Certificate] delivery verification; containing the authorisation to issue the certificate in question; and (e) 40 45 18 (f) containing such other matters as may be prescribed. (2) Whenever controlled items referred to in section 27(3)(c) are exported, the Committee may require a person authorised by the government of the country to which the controlled items are being exported to issue a certificate undertaking that the controlled items shall not be— (a) transferred or re-exported to any other person or country without the authorisation of the Committee; and (b) used in developing or manufacturing weapons of mass destruction or 5 for related purposes. (3) The Committee may on such terms and conditions as may be 10 prescribed exempt any exporter from compliance with subsection (1). (4) Whenever controlled items and services are imported into the Republic, the competent authority of the South African Government may issue an end-user certificate wherein an undertaking is given that the controlled items in question will not be transferred, re-sold or re-exported to any other country without the prior approval of the relevant authority of the exporting country.’’. Amendment of section 19 of Act 41 of 2002

12. Section 19 of the principal Act is hereby amended by the substitution in subsection (3) for paragraph (a) of the following paragraph: ‘‘(a) in relation to premises on or from which there is reason to believe that trade in [conventional arms] controlled items is being conducted in contravention of this Act; and’’. Amendment of section 22 of Act 41 of 2002 15 20

13. Section 22 of the principal Act is hereby amended by the substitution for 25 subsection (1) of the following subsection: ‘‘(1) Upon the written request of any competent authority, any person who trades in [conventional arms] controlled items in the course of his or her business must furnish the competent authority, within a specified period or at specified intervals, with such information at his or her disposal as may be specified in the request.’’. 30 Substitution of section 23 of Act 41 of 2002

14. The following section is hereby substituted for section 23 of the principal Act: ‘‘Disclosure and non-disclosure of information 23. (1) The Committee must— (a) annually prepare a report and cause such report to be submitted to the Secretary-General of the United Nations for the purposes of the United Nations Register of Conventional Arms, established in terms of United Nations Resolution 46/36L of 6 December 1991; (b) annually or from time to time prepare a report and cause such report to be submitted to any international body as may be required in terms of the Republic’s international obligations; and report to Cabinet and Parliament on all transfers of controlled items concluded during the preceding quarter. (c) 35 40 (2) A copy of the report contemplated in subsection (1)(a) must be tabled 45 in Parliament before it is submitted to the United Nations. (3) (a) The Committee must at the end of the first quarter of each year present to Parliament an annual report on all transfers of controlled items concluded during the preceding calendar year. 20 (b) The report contemplated in paragraph (a) must— (i) (ii) reflect the country, type and description of controlled items involved, the total value per type exported to the country for the year; and reflect the quantity of controlled items involved, except if disclosure is prohibited in terms of a confidentiality clause in the contract of sale. (4) In the case of information contemplated in subsection (3)(b)(ii), the Committee must submit such information to Parliament on a confidential basis. (5) Information concerning the technical specifications of controlled items may be omitted from a report contemplated in this section in order to protect military and commercial secrets. (6) No person may disclose any information concerning the business of the Committee except— (a) with the permission of a competent authority; (b) as required in terms of the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000); to a person who needs the information for performance of official functions; or to execute the decisions of the Committee. (c) (d) (7) For the purposes of this section ‘transfers’ include the following: (a) registration; (b) marketing; (c) contracting; (d) export; (e) (f) import; or conveyance.’’. Substitution of section 24 of Act 41 of 2002

15. Section 24 of the principal Act is hereby amended— (a) by the substitution in subsection (1) for paragraph (a) of the following paragraph: 5 10 15 20 25 30 ‘‘(a) [trades in conventional arms in contravention of section 13] contravenes section 13;’’; (b) by the substitution in subsection (1) for paragraph (d) of the following 35 paragraph: ‘‘(d) contravenes section 23[(3)](6);’’; and (c) by the substitution for subsection (3) of the following subsection: ‘‘(3) A court convicting any person of an offence referred to in subsection (1)(a) [, (b)] or (c) may, in addition to any other penalty which it may impose, order seizure of any goods, or any other article, or any material or substance in respect of which such offence was committed[, and the goods, article, material or substance so seized, must be disposed of as the Secretary either generally or in any particular case may order].’’. 40 45 Insertion of section 24A in Act 41 of 2002

16. The following section is hereby inserted in the principal Act after section 24: ‘‘Administrative fines 24A. (1) Notwithstanding anything to the contrary in this Act, the Committee may impose an administrative fine on any person, hereinafter called ‘‘the offender’’— (a) who is alleged to have committed an offence contemplated in section 24(1)(b) to (j); or (b) who fails to keep the prescribed records, minutes, registers and financial statements as required by the regulations. (2) An administrative fine imposed under subsection (1) may not exceed 10 per cent of the offender’s annual turnover in the Republic and its exports from the Republic during the offender’s preceding financial year. (3) When determining an appropriate fine, the Committee must consider the following factors: 50 55 60 22 (a) The nature, duration, gravity and extent of the contravention; (b) any damage to the economic or national security interests suffered as (c) (d) (e) a result of the contravention; the market circumstances in which the contravention took place; the level of profit derived from the contravention; the degree to which the offender has co-operated with the Committee; and (f) whether the offender has previously contravened this Act. (4) Where the Committee is considering the imposition of an adminis- trative fine it must cause to be delivered by hand to the offender an infringement notice which must contain the particulars of the offences contemplated in subsection (1). (a) (b) (c) (d) (5) A notice contemplated in subsection (4) must— specify the name and address of the offender; specify the particulars of the alleged offence; specify the amount of the administrative fine the Committee intends to impose; and inform the offender that he or she is entitled to elect to be tried in court instead of paying the administrative fine. 5 10 15 (6) The imposition of an administrative fine is subject to compliance with 20 the rules relating to a fair administrative action. (7) If an offender elects to be tried in court the Committee must hand the matter over to the National Prosecuting Authority and inform the offender accordingly. (8) (a) If an offender fails to comply with the requirements of a notice contemplated in subsection (4), the Committee may file with the clerk or registrar of any competent court a statement setting forth the alleged offence and the amount of the administrative fine payable by the offender. (b) Any such statement has the effect of a civil judgment lawfully given by the court in favour of the Committee for a liquid debt to the amount specified in the statement. (9) The Committee may not impose an administrative fine contemplated in this section if the person concerned has been charged with a criminal offence in respect of the same set of facts. (10) No prosecution may be instituted against a person if the person concerned has paid an administrative fine in terms of this section in respect of the same set of facts. (11) An administrative fine imposed in terms of this section does not constitute a previous conviction as contemplated in Chapter 27 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977). (12) A fine payable in terms of this section must be paid into the National Revenue Fund referred to in section 213 of the Constitution.’’. Insertion of sections 25A and 25B in Act 41 of 2002

17. The following sections are hereby inserted in the principal Act after section 25: ‘‘Exemptions 25A. (1) The Chairperson and one member of the Committee may, in cases of an emergency or special operations and at the request of the National Commissioner of the South African Police Service or Chief of the South African National Defence Force, grant an exemption to the South African Police Service or South African National Defence Force from the provisions of this Act relating to the export and import of controlled items. (2) Any request for an exemption under subsection (1) must be— (a) lodged with the secretariat; and 25 30 35 40 45 50 24 (b) accompanied by a comprehensive list of controlled items sought to be imported or exported and the name of the country from which the controlled items are being imported or to which they are exported. (3) Any exemption granted under subsection (1) must be tabled before the next ensuing meeting of the the Committee for ratification at Committee. 5 Industry Internal Compliance Programme 25B. (1) The Committee may determine guidelines for an Industry Internal Compliance Programme. (2) The Industry Internal Compliance Programme contemplated in 10 subsection (1) must, among others, provide for— (a) (b) (c) the principles of trade in and possession of controlled items; internal compliance procedures and methods to be followed; and standards to be maintained in the execution of certain activities relating to trade in and possession of controlled items. (3) In order to encourage good practices, in concurrence with the Committee, prescribe a grading system and terms of grading in terms of which persons may be graded in accordance with their history of compliance with the Industry Internal Compliance Programme.’’. the Minister may, Substitution of section 27 of Act 41 of 2002

18. The following section is hereby substituted for section 27 of the principal Act: ‘‘Regulations and notices 27. (1) The Minister may make regulations, with the concurrence of the Committee, regarding— (a) the types of permits to be issued and the procedure to be followed when applying for any permit in terms of this Act and the disclosure of information relating thereto; the conditions under which a permit may be issued and the disclosure of information relating thereto; (b) (c) matters which must be contained in an end-user certificate; (d) the keeping of records, minutes, registers and financial statements by any person who is the holder of a permit in terms of this Act; (dA) terms and conditions for domestic transfers of controlled items; (dB) trade in and possession of controlled items; (e) the format of reports to be furnished to the Minister, the Committee, the Cabinet or Parliament in terms of this Act; the procedure to be followed in connection with requests for reasons for decisions by a competent authority; and (f) (g) any other matter which it may be necessary or expedient to prescribe in order to achieve the objects of this Act or which may or must be prescribed in terms of this Act. [(3)] (2) A regulation may prescribe a penalty of a fine or of imprisonment for a period not exceeding five years, or both a fine and such imprisonment, for any contravention thereof or any failure to comply therewith. [(4) Any regulation which is likely to result in state expenditure must be made with the concurrence of the Minister of Finance.] (3) The Committee may, by notice in the Gazette, publish a list of controlled items to which this Act is applicable, including— (a) weapons, munitions, explosives, bombs, armaments, vessels, vehicles and aircraft designed or manufactured for use in war, and any other articles of war; 15 20 25 30 35 40 45 50 26 (b) any component, equipment, system, processes and technology of whatever nature capable of being used in the design, development, manufacture, upgrading, refurbishment or maintenance of anything contemplated in paragraph (a); (c) products, technologies, services or other goods which, besides their normal use and application for civilian purposes, can also be used for the furtherance of general military capability; and (d) any services relating to controlled items of whatever nature or form to any institution or country, including— aid; advice; assistance; training; (i) (ii) (iii) (iv) (v) product support; (vi) (vii) brokering. contractual after-sales and warranty services; and (4) The Committee may, by notice in the Gazette, publish a list of prohibited items, which items may not be manufactured, possessed or transferred under this Act.’’. Amendment of long title of Act 41 of 2002

19. The following long title is hereby substituted for the long title to the principal Act: ‘‘To establish the National Conventional Arms Control Committee; to ensure compliance with the policy of the Government in respect of arms control; to ensure the implementation of a legitimate, effective and transparent control process; to foster national and international confidence in the control procedures; to provide for an Inspectorate to ensure compliance with the provisions of this Act; to provide for guidelines and criteria to be used when assessing applications for permits made in terms of this Act; to ensure adherence to international treaties and agreements; to ensure proper accountability in the trade in [conventional arms] controlled items; to provide for matters connected with the work and conduct of the Committee and its secretariat; and to provide for matters connected therewith.’’. 5 10 15 20 25 30 Short title and commencement

20. This Act is called the National Conventional Arms Control Amendment Act, 2008, and takes effect on a date determined by the President by proclamation in the Gazette. 35