Practice Relating to Rule 161. International Cooperation in Criminal Proceedings
Section D. Political offence exception to extradition
South Africa’s Extradition Act (1962), taking into accounts amendments up to 2004, states:
In this Act, unless the context otherwise indicates–
‘Minister’ means the Minister of Justice;
15 Minister may order cancellation of warrants of arrest or discharge of detained persons
The Minister may at any time order the cancellation of any warrant for the arrest of any person issued or endorsed under this Act, or the discharge from custody of any person detained under this Act, if he is satisfied that the offence in respect of which the surrender of such person is or may be sought, is an offence of a political character or that the surrender of such person will not be sought.
22 Extradition in respect of terrorist and related activities
(1) Notwithstanding the provisions of section 15, a request for extradition based on the offences referred to in section 4 or 5 of the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004 [which designate offences associated or connected with financing of certain specified offences in that Act, and offences relating to explosive or other lethal devices, respectively], may not be refused on the sole ground that it concerns a political offence, or an offence connected with a political offence or an offence inspired by political motives, or that it is a fiscal offence.
(2) The provisions of this section shall in no way affect the application of sections 11([b])(iv) or 12(2)[(c)](ii) of this Act [which provide for refusal of extradition on the basis that the person concerned will be prosecuted, punished or prejudiced at trial by reason of gender, race, religion, nationality or political opinion].
South Africa’s Protection of Constitutional Democracy Against Terrorist and Related Activities Act (2004) states:
(4) 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).
(5) 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.
The Act defines “terrorist activity” as follows:
In this Act, unless the context indicates otherwise–
(xxv) “terrorist activity”, with reference to this section and sections 2, 3 and 17(2), means–
(a) any act committed in or outside the Republic [of South Africa], which–
(i) involves the systematic, repeated or arbitrary use of violence by any means or method;
(ii) involves the systematic, repeated or arbitrary release into the environment or any part of it or distributing or exposing the public or any part of it [to]–
(aa) any dangerous, hazardous, radioactive or harmful sub-
(bb) any toxic chemical; or
(cc) any microbial or other biological agent or toxin;
(iii) endangers the life, or violates the physical integrity or physical freedom of, or causes serious bodily injury to or the death of, any person, or any number of persons;
(iv) causes serious risk to the health or safety of the public or any segment of the public;
(v) causes the destruction of or substantial damage to any property[,] natural resource[,] or the environmental or cultural heritage, whether public or private;
(vi) is designed or calculated to cause serious interference with or serious disruption of an essential service[,] facility or system, or the delivery of any such service[,] facility or system, whether public or private, including[,] but not limited [to]–
(aa) a system used for, or by, an electronic system[,] including and information system;
(bb) a telecommunication service or system;
(cc) a banking or financial service or financial system;
(dd) a system used for the delivery of essential government services;
(ee) a system used for, or by, an essential public utility or transport provider;
(ff) an essential infrastructure facility; or
(gg) any essential emergency services, such as police, medical or civil defence services;
(vii) causes any major economic loss or extensive destabilisation of an economic system or substantial devastation of the national economy of a country; or
(viii) creates a serious public emergency situation or a general insurrection in the Republic,
whether the harm contemplated in paragraphs (a)(i) to (vii) is or may be suffered in or outside the Republic, and whether the activity referred to in subparagraphs (ii) to (viii) was committed by way of any means or method; and
(b) which is intended, or by its nature and context, can reasonably be regarded as being intended, in whole or in part, directly or indirectly, to–
(i) threaten the unity and territorial integrity of the Republic;
(ii) intimidate, or to induce or cause feelings of insecurity within, the public, or a segment of the public, with regard to its security, including its economic security, or to induce, cause or spread feelings of terror, fear or panic in a civilian population; or
(iii) unduly compel, intimidate, force, coerce, induce or cause a person, a government, the general public or a segment of the public, or a domestic or an international organisation or body or intergovernmental organisation or body, to do or to abstain or refrain from doing any act, or to adopt or abandon a particular standpoint, or to act in accordance with certain principles,
whether the public or the person, government, body, or organisation or institution referred to in subparagraphs (ii) or (iii), as the case may be, is inside or outside the Republic; and
which is committed, directly or indirectly, in whole or in part, for the purpose of the advancement of an individual or collective political, religious, ideological or philosophical motive, objective, cause or undertaking.