The problem with the removal of the motive requirement from the offence of terrorism – A short commentary

Abstract

ABSTRACT The Protection of Constitutional Democracy Against Terrorist and Related Activities Amendment Act 23 of 2022 amends South Africa’s anti-terrorism legislation, the Protection of Constitutional Democracy Against Terrorist and Related Activities Act 33 of 2004, by, among other things, removing the requirement of motive from the definitional elements of the offence of terrorism. Before the amendment of the original legislation, motive was the third and final requirement to be satisfied before the intentional (and possibly even the negligent) commission of the various listed acts could officially constitute the offence of terrorism. This commentary sets out the detail of the three original elements of the offence of terrorism and ultimately exposes the major problem with the removal of the motive requirement, particularly if negligence is found to also be the envisaged form of fault. A solution which could help overcome the identified problem and sustain the removal of the motive requirement, is suggested in the commentary.