No. 73 of 2008: National Conventional Arms Control Amendment Act, 2008.
by the insertion after the deï¬nition of ''prescribe'' of the following deï¬nition: '' 'Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conï¬ict Act' means the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conï¬ict, 2006 (Act No.
by the substitution for the deï¬nition of ''Secretary'' of the following deï¬nition: '' 'Secretary' means the Secretary for Defence appointed in terms of section [7B of the Defence Act, 1957 (Act No. 44 of 1957)] 7ofthe Defence Act, 2002 (Act No.
[the renderings of brokering services] domestic transfers such as sale, takeover, letting, lending, donation or transfer within the Republic; and the rendering of services.''.
Amendment of section 3 of Act 41 of 2002 2.
foster national and international conï¬dence 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 conï¬ict; and fulï¬l any obligation imposed under the Prohibition of Mercenary Activities and Regulation of Certain Activities in Country of Armed Conï¬ict Act.''.
Amendment of section 4 of Act 41 of 2002 3.
keep a register of every permit issued; and issue reports as speciï¬ed in section 23.'
make recommendations to the Cabinet concerning the control of trade in [conventional arms] and possession of controlled items; and direct any subcommittee to make information which it has in its possession available to the Committee, the Cabinet, Parliament or any committee of Parliament.'
''(4) The Committee may determine that a speciï¬c 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.
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.
''(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.
''(a) that trade in [conventional arms] and possession of controlled items is conducted in compliance with this Act; and''; and 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.
Any employee designated as an inspector must exercise his or her powers under this Act in consultation with the Inspectorate.
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 6.
''(2) In addition to the audit of the ï¬nancial 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.''.
Substitution of section 13 of Act 41 of 2002 7.
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.
In the case of ï¬rearms, ammunition, prohibited ï¬rearms and restricted ï¬rearms, referred to in the Firearms Control Act, 2000 (Act No.
which in terms of the Explosives Act, 2003 (Act No.
if the transfer, storage, transportation, manufacturing, destruction, 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.
if the explosives are imported, exported, stored, used, manufactured 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.
in the case of controlled goods as deï¬ned in section 1 of the Non-Proliferation of Weapons of Mass Destruction Act, 1993 (Act No.
in the case of radio apparatus as deï¬ned in the Electronic Communications Act, 2003 (Act No.
in the case of nuclear material, restricted material and nuclear-related equipment and material as deï¬ned in section 1 of the Nuclear Energy Act, 1999 (Act No.
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.
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 transferred or destroyed domestically, exported, re-exported, marketed, imported, conveyed, manufactured [or], traded or rendered; and may prescribe such other conditions as the Committee determines.'
''(5) An application for a permit for the re-exportation of [conventional arms] controlled items must be accompanied by a notiï¬cation 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.'
''(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.''.
Amendment of section 15 of Act 41 of 2002 9.
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.''.
Substitution of section 16 of Act 41 of 2002 10.
the [arms] controlled items in question have been expended during demonstration, the Committee must obtain a certiï¬cate from the government of the country of import verifying that fact.''.
Substitution of section 17 of Act 41 of 2002 11.
containing the authorisation to issue the certiï¬cate in question; and containing such other matters as may be prescribed.
reï¬ect the country, type and description of controlled items involved, the total value per type exported to the country for the year; and reï¬ect the quantity of controlled items involved, except if disclosure is prohibited in terms of a conï¬dentiality clause in the contract of sale.
In the case of information contemplated in subsection (3)(b)(ii), the Committee must submit such information to Parliament on a conï¬dential basis.
Information concerning the technical speciï¬cations of controlled items may be omitted from a report contemplated in this section in order to protect military and commercial secrets.
as required in terms of the Promotion of Access to Information Act, 2000 (Act No.
to a person who needs the information for performance of official functions; or to execute the decisions of the Committee.
import; or conveyance.''.
used in developing or manufacturing weapons of mass destruction or for related purposes.
The Committee may on such terms and conditions as may be 10 prescribed exempt any exporter from compliance with subsection (1).
Republic, the competent authority of the South African Government may issue an end-user certiï¬cate wherein an undertaking is given that the controlled items in question will not be transferred, re-sold or re-exported 15 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.
[conventional arms] controlled items is being conducted in contravention of this Act; and''.
Amendment of section 22 of Act 41 of 2002 13.
Substitution of section 23 of Act 41 of 2002 14.
report to Cabinet and Parliament on all transfers of controlled items concluded during the preceding quarter.
A copy of the report contemplated in subsection (1)(a) must be tabled 45 in Parliament before it is submitted to the United Nations.
(a) The Committee must at the end of the ï¬rst quarter of each year present to Parliament an annual report on all transfers of controlled items concluded during the preceding calendar year.
Substitution of section 24 of Act 41 of 2002 15.
''(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].''.
Insertion of section 24A in Act 41 of 2002 16.
who is alleged to have committed an offence contemplated in section 24(1)(b) to (j);or who fails to keep the prescribed records, minutes, registers and ï¬nancial statements as required by the regulations.
An administrative ï¬ne 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 ï¬nancial year.
the degree to which the offender has co-operated with the Committee; and whether the offender has previously contravened this Act.
Where the Committee is considering the imposition of an administrative ï¬ne 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).
specify the amount of the administrative ï¬ne 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 ï¬ne.
The imposition of an administrative ï¬ne is subject to compliance with the rules relating to a fair administrative action.
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.
If an offender fails to comply with the requirements of a notice contemplated in subsection (4), the Committee may ï¬le with the clerk or registrar of any competent court a statement setting forth the alleged offence and the amount of the administrative ï¬ne payable by the offender.
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 speciï¬ed in the statement.
The Committee may not impose an administrative ï¬ne contemplated in this section if the person concerned has been charged with a criminal offence in respect of the same set of facts.
No prosecution may be instituted against a person if the person concerned has paid an administrative ï¬ne in terms of this section in respect of the same set of facts.
An administrative ï¬ne 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).
A ï¬ne 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.
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.
lodged with the secretariat; and 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.
Any exemption granted under subsection (1) must be tabled before the Committee for ratiï¬cation at the next ensuing meeting of the Committee.
Internal Compliance Programme.
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.
In order to encourage good practices, the Minister may, 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.''.
Substitution of section 27 of Act 41 of 2002 18.
the procedure to be followed in connection with requests for reasons for decisions by a competent authority; and 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 ï¬ne or of imprisonment for a period not exceeding ï¬ve years, or both a ï¬ne 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.
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.
''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 conï¬dence 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.''.
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.