The rather inelegantly named Prohibition of Mercenary Activities and Regulation of Certain Activities in Country (sic) of Armed Conflict Act No. 27 of 2006 (“the Act”) was published in the Government Gazette of 16 November 2007, but will only come in to operation on a later date to be determined by the President by proclamation in the Gazette.

It repeals the Regulation of Foreign Military Assistance Act No. 15 of 1998 (which led to the dissolution of the notorious Executive Outcomes company), and seeks principally to do the following:

- to prohibit mercenary activity;

- to regulate the provision of assistance or service of a military-related nature in a country of armed conflict;

- to regulate the enlistment of South African citizens or permanent residents in other armed forces;

- to regulate the provision of humanitarian aid in a country of armed conflict;

- to provide for extra-territorial jurisdiction for the courts of the Republic with regard to certain offences.

From the above it is clear that the ambit of the act is rather wide, and that it goes much further than just criminalizing mercenary activities, but it is certainly in response to the turbulent international climate. While there are no accurate statistics available, it is generally believed that as many as several thousand South Africans are currently employed as security contractors or private military personnel in Iraq alone. The Iraq Coalition Casualty Counter (www.icasualties.org) statistics show that at least twenty one South Africans employed as security contractors have been killed in Iraq during the period from 31 January 2003 to 28 August 2007.

While the Act prohibits direct or indirect mercenary activities (participation in an armed conflict as a combatant for private gain) outright, it stipulates that no South African may directly or indirectly provide any assistance or render any service to a party to an armed conflict without consent of the National Conventional Arms Committee.

Similarly, no South African may enlist with any armed force (other than the SANDF) without the committee’s authorisation. Ironically however, this authorization may be revoked as soon as the person to whom the authority was granted takes place in an armed conflict while enlisted with any other armed force.

Even the provision of humanitarian assistance in an armed conflict is regulated, in that no South African humanitarian organization may provide such assistance unless such organization has been registered with the Committee for that purpose.

Perhaps the most interesting aspect of the Act is the introduction of extra-territorial jurisdiction for South African courts. The Act stipulates in peremptory language that any offence under this act committed outside the Republic by a South African citizen or resident (or company or body of persons) must be regarded as having been committed in the Republic, and the person who committed it may be tried in a South African court. Likewise, any person found in South Africa that participated in mercenary activities outside our borders against either the Republic, its citizens or residents, may be prosecuted here, as if the crime was committed in South Africa.

Another interesting clause provides that the courts may, upon the convicting any person of any offence in terms of the Act, declare “any armament, weapon, vehicle, uniform, equipment or other property or object in respect of which the offence was committed or which was used for, or in connection with the commission of the offence” to be forfeited to the State.

Since there are, for example, numerous South African citizens currently enlisted in the British armed forces, imagine for a moment the following scene as an illustration of the potentially extreme consequences of this Act: a young South African enlists with the Royal Navy, works his way into Royal Marines and is posted to 9 Assault Squadron, which is permanently-embarked on the HMS Ocean, an amphibious assault ship over 200 meters in length with a displacement of 21,578 tons, and is soon shipped off to Sierra Leone where he participates in suppressing rebel activities in a bloody civil unrest.

Even if our young soldier obtained the authorization of the Committee before enlisting with the Royal Navy, such authorization would most likely be revoked due to his involvement in an armed conflict as a member of an armed force other than the SANDF. The young sailor may now be prosecuted in Pretoria for acts performed in Freetown, and the court may declare the HMS Ocean (presumably with its fleet of helicopters) to be forfeited to the State…