THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 19/2014

In the matter of:
HENRY EMOMOTIMI OKAH
APPELLANT

and

THE STATE
FIRST RESPONDENT
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS
SECOND RESPONDENT
THE MINISTER OF POLICE
THIRD RESPONDENT
THE MINISTER OF INTERNATIONAL RELATIONS
FOURTH RESPONDENT
THE MINISTER OF JUSTICE AND
CORRECTIONAL SERVICES
FIFTH RESPONDENT
Neutral Citation:
Okah v S (19/2014) [2016] ZASCA 155 (3 October 2016)
Coram:
Navsa, Shongwe, Dambuza and van der Merwe JJA and
Schoeman AJA

Heard:

24 August 2016
Delivered:

3 October 2016
Summary:

Interpretation and application of s 15 of the Protection of
Constitutional Democracy Against Terrorist and Related Activities Act 33 of 2004 :
extra-territorial jurisdiction : extent of.

___________________________________________________________________
ORDER
___________________________________________________________________

On appeal from: South Gauteng High Court, Johannesburg (Claassen J sitting as
court of first instance) judgment reported sub nom S v Okah 2015 (2) SACR 561
(GJ):

1. The appeal is upheld to the extent reflected in the substituted order of the court
below, set out hereafter.
2. In respect of conviction, the order of the court below is set aside and substituted
as follows:
„The appellant is convicted on counts 2, 4, 6, 8, 9, 10, 11 and 12.‟
3. In respect of sentence, the order of the court below is set aside and substituted as
follows:
„Counts 2, 4, 6, 8, 10 and 12 are taken together for purposes of sentence and the accused is
sentenced to 12 years‟ imprisonment.
Counts 9 and 11 are taken together for purposes of sentence and the accused is sentenced
to 8 years‟ imprisonment.
The effective sentence is thus 20 years‟ imprisonment.‟

__________________________________________________________________
JUDGMENT
___________________________________________________________________
Navsa and Van der Merwe JJA (Shongwe & Dambuza JJA and Schoeman AJA
concurring)
[1] This appeal concerns the prosecution on criminal charges, in the South
Gauteng High Court, Johannesburg, of the appellant, a Nigerian citizen who has
permanent residence status in South Africa. The prosecution followed on two
separate bombings in Nigeria, as a result of which 12 people were killed, 64 severely
injured and property was damaged. It was alleged by the State that the appellant, Mr
Henry Okah, had been involved in the planning and execution of these bombings.

[2] During 2005, the appellant had made the Republic of South Africa his
principal place of residence and was granted permanent residency status on 13
March 2007. He was arrested in South Africa on 2 October 2010 and was charged
with 13 counts under the Protection of Constitutional Democracy Against Terrorist
and Related Activities Act 33 of 2004 (the Act). The first 12 counts were related to
bombings that occurred in Nigeria: at Government House Annex, Warri, on 15 March
2010 and Eagle Square, Abuja on 1 October 2010. Count 13 alleged that the
appellant had threatened certain South African entities that were commercially active
in Nigeria with destabilising terrorist activities.

[3] The court below (Claassen J), in its judgment, at the outset, posed the
following question: „One may well ask: Why is the accused being tried in a South
African Court?‟ It answered the question by reference to a number of international
conventions adopted by the United Nations General Assembly1 and the Organisation

1 The Convention on the Prevention and Punishment of Crimes against Internationally Protected
Persons including Diplomatic Agents, adopted by the General Assembly of the United Nations on 14
December 1973; the International Convention Against the Taking of Hostages, adopted by the
General Assembly of the United Nations on 17 December 1979; the International Convention for the
Suppression of Terrorist Bombings, adopted by the General Assembly of the United Nations on 15
December 1997; and the International Convention on the Suppression of the Financing of Terrorism,
adopted by the General Assembly of the United Nations on 9 December 1999.

of African Unity,2 in respect of which South Africa was a signatory, and a resolution
by the United Nations Security Council,3 in response to international terrorism, and
the resultant enactment by the legislature of the Act, which ostensibly enables extra-
territorial prosecution of criminal offences comprising acts of terrorism and related
activities. The counts in question, based on the provisions of the Act, range from
engaging in terrorist activities to delivering, placing and or detonating explosives
causing death and serious bodily injury, to attempts to cause harm to internationally
protected persons and financing terrorist activities. The indictment contained a
number of alternative counts. We shall, in due course, explore our law in relation to
extra-territorial jurisdiction. We will also deal with the specific counts when we
engage in determining whether the convictions set out below were well founded.

[4] Claassen J undertook an examination of the Act, and specifically considered
s 15, dealing with „jurisdiction‟, and was satisfied that the court was competent to try
the appellant on all the counts in the indictment.

[5] The court below had regard to certain admissions by the appellant and to the
common cause facts. It was not disputed that the bombings had occurred in Warri
and Abuja in Nigeria on 15 March 2010 and 1 October 2010 respectively, and were
caused on each occasion by two explosive-laden vehicles being detonated remotely.
It is common cause, as described earlier, that as a result of the Warri and Abuja
bombings, several people died, many suffered bodily injury, and property was
damaged.

[6] It was uncontested that the appellant was a leader of the Movement for the
Emancipation of the Niger Delta (MEND) during 2010 and that he had in the past
supplied arms and ammunition to that organisation. It was accepted during the trial
that MEND had claimed responsibility for the two bombings.

2 The OAU Convention on the Prevention and Combatting of Terrorism, adopted by the Organisation
of African Unity at Algiers on 14 July 1999.
3 United Nations Security Council Resolution 1373, adopted under Chapter VII of the Charter of the
United Nations on 28 September 2001.

[7] MEND appears to have its origins in an uprising by people of the oil-rich
region of the Niger Delta,4 against what appears to have been regarded as the
Nigerian government‟s lack of concern about the severe degradation of the
environment and the lack of benefit to the local population from oil revenue.
Antagonisms also appear to have arisen from dispossession of land due to
commercial activity linked to exploitation of oil deposits. A number of militant groups
had attacked oil pipelines that served foreign oil companies. Executives of those
companies were kidnapped and held for ransom. Ultimately, the militant groups
united under MEND‟s umbrella and waged an armed struggle against the Nigerian
government.

[8] It is necessary to record that the former President of Nigeria, Mr Goodluck
Jonathan (who was the president of Nigeria when the Abuja bombing occurred)
himself came from the southern regions of Nigeria where MEND operated. His
predecessor, President Umaru Musa Yar‟Adua,5 who was the President of Nigeria
during the Warri bombing, had initiated an amnesty programme in 2009 which, inter
alia, involved the voluntary surrender of arms and ammunition by armed MEND
militants and other rebel factions associated with the conflict in the Niger Delta. One
of the conditions in negotiating the amnesty with the militants was that the appellant
as leader of MEND, who was in custody at that time on charges of treason and gun-
running, should be released.

[9] During July 2009 the appellant accepted an offer of amnesty extended to him
by the Nigerian government. In so doing the appellant also offered to work with the
Nigerian government towards the restoration of peace in the Niger Delta region. He
was released as a result of the amnesty. It would appear that the appellant had
subsequently become increasingly dissatisfied with post-amnesty conditions in the
oil-rich regions of southern Nigeria. After his release, during August 2009, the
appellant returned to South Africa. As stated earlier, the he was arrested in South
Africa on 2 October 2010 on the counts he faced in the court below.

4 The Niger Delta is the delta of the Niger River, sitting directly on the Bight of Biafra side of the Gulf
of Guinea on the Atlantic Ocean, in Nigeria.
5 President Yar‟Adua passed away on 5 May 2010.

[10] We return to the trial in the court below where Claassen J took the view that
the evidence led to the following ineluctable conclusions:
(i)
the appellant had acted as a spokesperson for MEND and used the
pseudonym „Jomo Gbomo‟ in e-mails to and correspondence with the media;
(ii)
shortly before the Warri bombing he had entered Nigeria unlawfully from
Benin, that is, not at an official point of entry;
(iii)
the two bombings were caused by motor vehicles laden with explosives, and
the make of at least three of the four motor vehicles had been identified;
(iv)
MEND had accepted responsibility for the bombings which had caused death
and destruction and which fell within the definition of „terrorist activities‟ and the
offence of terrorism in the Act;
(v)
a number of people who had attended gatherings at Warri and Abuja fell
within the definition of „internationally protected person‟ in the Act; and
(vi)
the buildings damaged during the bombing fell within the definition „state or
government facility‟ in the Act.

[11] Claassen J had regard to the evidence by key witnesses for the State in
relation to the Warri bombing on 15 March 2010, from which it appeared that the
appellant, who was in Nigeria at the time, had given instructions to a Nigerian
national, Mr Obi Nwabueze, for the purchase of two vehicles to be used to detonate
explosives. The appellant had arranged for hidden compartments to be constructed
within those vehicles. The appellant had also provided money for the purchase of the
explosives and detonators, and for the construction of the compartments. In addition,
the appellant had supplied the timing devices for use in the explosives, being clocks
and/or mobile phones. The appellant had also demonstrated how the detonators
were to be attached to the explosives.

[12] At the instance of the appellant, the location at Government House Annex,
Warri, was chosen because it was where the Vanguard Newspaper had scheduled a
post-amnesty dialogue meeting. That meeting intended to explore such issues as
skills acquisition and training programs for the former militants; strategies to
reconstruct the communities devastated by militant activities and oil pollution;
rehabilitation programs for such militants; disarmament and amnesty; bunkering and
economic sabotage; resource control; demilitarisation of the Niger Delta; and the

security, economic development and peace in that area in general. The Minister of
the Niger Delta, the Delta State Governor, the Imo State Governor, the Edo State
Governor and other State officials were present. During the course of the morning,
Jomo Gbomo, on behalf of MEND, sent a warning via the internet, that a bomb
would be detonated in the vicinity of Government House Annex. The appellant had
given instructions to operators to park the vehicles inside the venue, but due to there
being a school directly adjacent to the venue and security being tight, they chose
instead to park close to the entrance of the venue, and have the explosives
detonated there. The appellant was, according to the evidence, still in Nigeria
immediately after the explosion.

[13] In relation to the Abuja bombing on 1 October 2010, the following evidence
was adduced. The planning and the instructions for the bombing took place in South
Africa. The appellant telephonically planned the bombing, and chose Abuja as the
location because of the celebration of Nigeria‟s 50th National Independence Day. The
appellant was the driving force behind the bombing, and sent money to his
accomplices for the purchase of equipment for the bombing. He had also sent timing
devices from South Africa. Former Nigerian President Goodluck Jonathan and
foreign dignitaries and Nigerian state officials were in attendance to celebrate the
Independence Day anniversary.

[14] In respect of both the Warri and Abuja bombings, two sets of explosives had
been utilised, and timing devices had been used to delay the detonation of the
second explosion until some time after the first explosion. The intention was that a
crowd would be attracted to the site of the first explosion, which would then be
caught in the blast zone of the second explosion, resulting in maximum injury and
death.

[15] In relation to count 13, the State relied on a communiqué – an e-mail – on 27
January 2012, from one Mr Peter Timi (Timi), proclaiming himself to be the European
representative of MEND, threatening the commercial interests of South African
companies operating in Nigeria. The court below also had regard to a similar threat
uttered by the appellant on 30 January 2012 to the investigating officer.

[16] In the court below, the appellant‟s legal representative denied that he had
been involved in the terrorist activities alleged by the State and suggested, when his
legal representative cross-examined witnesses, that he had been the victim of a
conspiracy between them and the Nigerian government to falsely implicate him. This
was rejected by Claassen J who held that no basis had been laid for the alleged
conspiracy and said the following (para 64):
„On the contrary, many of the State witnesses were the accused‟s former accomplices who
were intimately involved with the actions of the accused in planning and executing the
bombings in Warri and Abuja.‟
The appellant chose not to testify.

[17] In the end, the court held that the material evidence, which it dealt with in
some detail, proved the appellant‟s guilt on counts 1 to 12. Claassen J said the
following (paras 142 – 143):
„The evidence of the two main accomplices is congruent and corroborates one another.
There are no contradictions or discrepancies which may negatively affect their testimony. . .
The evidence of these witnesses overwhelmingly established that the accused was the
planner, funder, supplier, instructor, expert and leader in the execution of the bombings in
Warri and Abuja. Although he was not present at the moment the car bombs exploded, it
cannot be gainsaid that they exploded at his instance and direction. To my mind that makes
him guilty beyond all reasonable doubt of the charges in counts 1 to 12 as the main
perpetrator.‟

[18] It is necessary, in relation to count 13, first, to have regard to the e-mail by
Timi containing the threat to South African interests in Nigeria, the relevant parts of
which read as follows:
„
27 January 2012
. . .
I am Mr Peter Timi the Europe representative of the Movement for the Emancipation of the
Niger Delta (MEND). I have been mandated to communicate our displeasure over your
country‟s involvement through the South African judiciary as it concerns our leader Mr Henry
Okah.
It was a shock when we learnt that the trial of Mr Henry Okah was once again postponed till
the 1st of October 2012 which to us is totally unacceptable.

We should remind you of the South African investments in Nigeria such as the few stated
below and we will not hesitate to disrupt their business activities and take the South African
nationals working for these companies hostage.
-
Ethnix Designs
-
Pepkoro Limited
-
Standard Bank
-
Nampak
-
KPMG
-
MTN
-
Phillips Consulting
-
Plessey
-
Legacy Hotels
-
Enterprise LG
-
Dimension Data
-
Johnnic Africa
-
Pace Property
-
Altech Namitech
-
Sun International
-
ABSA and Southern Sun
The South African Government through her judiciary is hereby advised to within the next two
weeks release our leader or else the South African citizens and companies will be at risk.
Don‟t forget that no amount of Nigerian Government‟s security guarantee can stop us.
We will carry out these „PROMISES‟ to the letter, enough is enough.‟

[19] In relation to this e-mail, the court below also had regard to the evidence of
Mr Simon Kerry (Kerry), the group risk manager for Plessey (Pty) Ltd (Plessey),
which
installs
and
builds
telecommunications
infrastructure
for
the
telecommunications industry in South Africa and other parts of the continent. Plessey
employed four South African nationals in Lagos, Nigeria. After receiving the e-mail
referred to above, a discussion ensued with company executives and it was
accepted that there was cause for concern. There was communication with
Dimension Data, another company whose interests were threatened in the e-mail.
Whilst not evacuating their personnel, both companies put contingency plans in
place for rapid evacuation should the need arise. There was no evidence that the

threats materialised. As must by now be apparent, the appellant was in custody in
South Africa at the time that the e-mail threat was made.

[20] Finally, in relation to count 13, the court below took into account the evidence
of Colonel Noel Zeeman (Zeeman), the investigating officer who had been called as
a witness by the appellant. Zeeman testified about a conversation he had engaged in
with the appellant, on 30 January 2012, in the reception area of the holding cells of
the court below. According to Zeeman, the appellant had complained about his
exorbitant legal fees and then went on to say the following:
„South Africa is going to pay as South Africa should not be involved in the matter and that
was not their problem. He went on further to say that there was nothing stopping him from
attacking South African interests in Nigeria as he is a warrior and will continue fighting . . . .‟
Zeeman was subsequently made aware of the e-mail by Timi and saw a copy of it.

[21] In respect of count 13, Claassen J concluded as follows (para 300):
„I am satisfied that the State proved beyond a reasonable doubt that the accused is
also guilty on count 13. The evidence of Kerry and Zeeman is uncontroverted and prove that
the accused and/or one of his supporters, Timi, voiced threats of danger to South African
companies and their employees operating in Nigeria.‟

[22] Being cautious, Claassen J considered, in the event of his conclusions in
relation to the main charges being wrong, the alternative charges of conspiracy to
commit those offences. The court below had regard to case law on conspiracy and
held that the evidence clearly disclosed that the appellant had conspired with some
or all of the individuals mentioned in the indictment in counts 1 to 12.

[23] Having convicted the appellant, the court below proceeded to sentence the
appellant as follows. In respect of the Warri bombing, the convictions on counts 1, 3,
5, 7, 9 and 11 were taken together for sentencing, and the appellant received a
sentence of 12 years‟ imprisonment. In respect of the Abuja bombing, the
convictions on counts 2, 4, 6, 8, 10 and 12 were taken together, and the appellant
was sentenced to a further 12 years‟ imprisonment. In respect of the conviction on
count 13, the court below imposed a sentence of 10 years‟ imprisonment. The latter
sentence was ordered to run concurrently with the sentence imposed in respect of

counts 2, 4, 6, 8, 10 and 12 referred to above. Thus, the effective sentence was 24
years‟ imprisonment.

[24] The appellant applied for leave to appeal against his convictions on counts 1
to 12, principally on the basis that the court had no jurisdiction to adjudicate on those
counts because they were acts of terrorism committed beyond the borders of South
Africa, namely in Nigeria. A secondary ground on which leave to appeal was sought
was that there had been a duplication of charges. In respect of count 13, leave to
appeal was sought on the basis that no link could be established between the
appellant and the e-mail threatening South African interests in Nigeria. Claassen J
made the following order:
„1. Leave is granted to the Supreme Court of Appeal against this court‟s finding that it
had jurisdiction in terms of Act 33 of 2004 to hear and adjudicate counts 1, 2, 3, 4, 5, 6, 7, 8,
9, 10, 11 and 12.
2. The application for leave to appeal the convictions on the merits of counts 3 to 8, based
on an alleged duplication of charges, is dismissed.
3. Leave is granted to the Supreme Court of Appeal against the conviction only on count 13.‟

[25] The appeal was first enrolled in this court for hearing on 26 November 2014.
There had been no attack in the court below on the constitutionality of the provisions
of the Act. For the first time, in this court, counsel for the appellant sought to launch
an attack on the constitutionality of the Act insofar as it purported to grant a South
African court extra-territorial jurisdiction. After an exchange between this court and
counsel on behalf of the State and the appellant, it was agreed that the matter be
postponed to enable the responsible Minister, namely the Minister of Safety and
Security, to be given notice of the constitutional challenge. Subsequently, an order
was obtained by the appellant in the high court in terms of which the National
Director of Public Prosecutions, the Minister of Police, the Minister of International
Relations and Cooperation and the Minister of Justice and Correctional Services
were joined as parties to the appeal in this court.6

6 For present purposes and for reasons provided in para 26 below, it will become apparent that it is
not necessary to address the correctness of that procedure.

[26] Subsequently, the appellant filed an application to extend his grounds of
appeal, to include a constitutional challenge against certain provisions of the Act.
Before us, however, when the present appeal was heard, the attack against the
constitutionality of the Act was abandoned. Counsel on behalf of the appellant also
accepted the factual findings of the court below in relation to counts 1 to 12.
Therefore, the only issues on appeal were (a), whether the court below had
jurisdiction to entertain any or all of counts 1 to12, and, (b), whether the evidence in
the court below justified a conviction on count 13. It is to those issues that we now
turn.

[27] At the outset it is necessary to conduct a brief overview of our law relating to
jurisdiction prior to the introduction of the Act. Jurisdiction is an important aspect of
the sovereignty of the State. Sovereignty entitles a state to exercise its functions
within a particular territory to the exclusion of other states. Jurisdiction encompasses
the authority that a state has to exercise its functions by legislation, executive and
enforcement action, and judicial decrees in relation to persons and property. In most
circumstances the exercise of state power, as aforesaid, is limited to its own
territory.7 It is a fundamental principle that a state can assert its jurisdiction over all
criminal acts that occur within its territory and over all persons present in its territory,
who are responsible for such acts, whatever their nationality.

[28] In Kaunda & others v President of the Republic of South Africa & others 2005
(4) SA 235 (CC), para 38, Chaskalson CJ said the following:
„It is a general rule of international law that the laws of a State ordinarily apply only
within its own territory.‟
The European Court of Human Rights, in Bankovic & others v Belgium & others
ECHR 2001-XII; [2001] ECHR 890 (para 59), said the following:
„[F]rom the standpoint of public international law, the jurisdictional competence of a State is
primarily territorial.‟

[29] In our law in relation to territorial jurisdiction, the principle that the State may
assert its jurisdiction over all criminal acts that occur within its territory over all
persons responsible for such criminal acts, whatever their nationality, when present

7 John Dugard International Law: A South African Perspective 4 ed (2011) at 146.

in South Africa is well established.8 However, in more recent years there has been a
broadening of the basis of jurisdiction. There is now recognition that the basic
principle referred to above is losing ground. For a start, there is a trend indicating
that, where the constituent elements of a crime occurred in different countries, the
offence may be tried in any jurisdiction where any of those elements or their harmful
effect occurred.9

[30]  In S v Basson,10 the Constitutional Court in dealing with the presumption
against extra-territorial jurisdiction and the exceptions to that rule said the following:
„[223] We accept that as a general proposition our courts have declined to exercise
jurisdiction over persons who commit crimes in other countries. This, as Dugard points out,
is an aspect of sovereignty which has given rise to a presumption against the extraterritorial
operation of criminal law.
[224] There are, however, exceptions to the general rule. As Watermeyer CJ observed in R v
Holm; R v Pienaar the basis of this rule is international comity:
“'An independent state does not claim a wider jurisdiction because it does not wish to
encroach upon the corresponding rights of other independent states.”
Watermeyer CJ goes on to refer to Wheaton International Law as saying that the judicial
power of the State extends:
“'(1) To the punishment of all offences against municipal laws of the State, by whomsoever
committed, within the territory.
(2) To the punishment of all such offences, by whomsoever committed, on board its public
and private vessels on the high seas and on board its public vessels in foreign ports.
(3) To the punishment of all such offences by its subjects wheresoever committed.
(4) To the punishment of piracy and other offences against the law of nations by
whomsoever and wheresoever committed.”
Watermeyer CJ points out that this proposition is not accepted by all sovereign states and
that England makes the smallest claim to punish its own subjects or others for extraterritorial
offences. Other countries go so far as to exercise jurisdiction over nationals who commit
crimes in any country.
[225] It seems generally to be recognised, even by those countries which limit their
jurisdiction to crimes committed within their territories, that there are exceptions to the

8 See R v Holm; R v Pienaar 1948 (1) SA 925 (A) at 929-930; and S v Basson [2005] ZACC 10; 2007
(3) SA 582 (CC) paras 223-225.
9 Alfred V Lansdown and Jean Campbell, South African Criminal Law and Procedure, vol 5 (1982), at
3 and 9.
10 See S v Basson above.

territorial rule. Treason is such an exception, for it is considered that the State that is
threatened has a greater interest than any other state in punishing the offender. Exceptions
are also made in respect of transnational crimes where more than one state may have an
interest in holding the offender liable for the crime.‟ (Footnotes omitted.)

[31] Further, with the increase in international terrorist activity, states have largely
co-operated in order to combat that scourge. This has resulted in international
instruments in that regard, which include the Conventions and the United Nations
Resolutions mentioned above that are binding on signatories and/or member states.
In order for the effective combatting of the terrorist activities, participating or member
states are required to adopt the legislation that confers jurisdiction on domestic
courts to adjudicate crimes committed extra-territorially.

[32] The long title11 and the preamble12 of the Act set out the purposes it seeks to
achieve, which include that set out at the end of the preceding paragraph.

[33] We now turn to examine the relevant provisions of the Act. It must be
understood that central to the Act is the creation of the offence of terrorism and
related crimes. Section 2 of the Act provides as follows:
„Any person who engages in a terrorist activity is guilty of the offence of terrorism.‟
The definition of „terrorist activity‟ in s 1 is extensive. For present purposes, it is not
necessary to set out the definition in full, save to state that it is couched in wide
terms and applies to acts committed both inside and outside the Republic.

11 The long title of the Act provides:
„To provide for measures to prevent and combat terrorist and related activities; to provide for an
offence of terrorism and other offences associated or connected with terrorist activities; to provide for
Convention offences; to give effect to international instruments dealing with terrorist and related
activities; to provide for a mechanism to comply with United Nations Security Council Resolutions,
which are binding on member States, in respect of terrorist and related activities; to provide for
measures to prevent and combat the financing of terrorist and related activities; to provide for
investigative measures in respect of terrorist and related activities; and to provide for matter
connected therewith.‟
12 The preamble includes the following:
„AND REALISING the importance to enact appropriate domestic legislation necessary to implement
the provisions of relevant international instruments dealing with terrorist and related activities, to
ensure that the jurisdiction of the courts of the Republic of South Africa enables them to bring to trial
the perpetrators of terrorist and related activities; and to co-operate with and provide support and
assistance to other States and relevant international and regional organisations to that end; . . . .‟

[34] The sections that follow on s 2 create offences that are subsidiary to or
associated with the main offence of terrorism. So, for example, s 3 provides for
„Offences associated or connected with terrorist activities‟, s 4 provides for „Offences
associated or connected with financing of specified offences‟ and s 5 creates an
offence in relation to the delivery, placing, discharging and/or detonation of
explosives or other lethal devices.

[35] The primary question in this case is to what extent extra-territorial jurisdiction
is conferred by the Act in relation to offences created thereby. For that the starting
point is s 15 of the Act, which is entitled „Jurisdiction in respect of offences‟. It is
necessary to consider the provisions of subsecs 15(1) to (4), which read as follows:
„(1) A court of the Republic has jurisdiction in respect of any specified offence as defined in
paragraph (a) of the definition of “specified offence”, if –
(a)
the accused was arrested in the territory of the Republic, or in its territorial
waters or on board a ship or aircraft registered or required to be registered in the
Republic; or
(b)
the offence was committed –
(i)       in the territory of the Republic;
(ii)
on board a vessel, a ship, an off-shore installation, or a fixed platform, or
an aircraft registered or required to be registered in the Republic at the
time the offence was committed;
(iii) by a citizen of the Republic or a person ordinarily resident in the Republic;
(iv) against the Republic, a citizen of the Republic or a person ordinarily resident
in the Republic;
(v) on board an aircraft in respect of which the operator is licensed in terms of the
Air Services Licensing Act, 1990 (Act 115 of 1990), or the International Air
Services Act, 1993 (Act 60 of 1993);
(vi) against a government facility of the Republic abroad, including an embassy or
other diplomatic or consular premises, or any other property of the
Republic;
(vii) when during its commission, a national of the Republic is seized, threatened,
injured or killed;
(viii)
in an attempt to compel the Republic to do or to abstain or to refrain from
doing any act; or
(c)
the evidence reveals any other basis recognised by law.

(2)
Any act alleged to constitute an offence under this Act and which is committed
outside the Republic by a person other than a person contemplated in subsection (1),
shall, regardless of whether or not the act constitutes an offence or not at the place of
its commission, be deemed to have been committed also in the Republic if that –
(a)
act affects or is intended to affect a public body, any person or business in the
Republic;
(b)
person is found to be in the Republic; and
(c)
person is for one or other reason not extradited by the Republic or if there is
no application to extradite that person.
(3)
Any offence committed in a country outside the Republic as contemplated in
subsection (1) or (2), is, for the purpose of determining the jurisdiction of a court to try
the offence, deemed to have been committed –
(a)
at the place where the accused is ordinarily resident; or
(b)
at the accused person‟s principal place of business.
(4)
Where a person is charged with conspiracy or incitement to commit an offence or as
an accessory after that offence, the offence is deemed to have been committed not
only at the place where the act was committed, but also at every place where the
conspirator, inciter or accessory acted or, in case of an omission, should have acted.‟
(Our emphasis.)

[36] As can be seen from the introductory wording of s 15(1), the definition of
„specified offence‟ assumes importance. That expression is defined in s 1 as follows:
„“specified offence”, with reference to section 4, 14 (in so far as it relates to section 4),
and 23, means –
(a) the offence of terrorism referred to in section 2, an offence associated or connected
with terrorist activities referred to in section 3, a Convention offence, or an
offence referred to in section 13 or 14 (in so far as it relates to the
aforementioned sections); or
(b) any activity outside the Republic which constitutes an offence under the law of
another state and which would have constituted an offence referred to in
paragraph (a), had that activity taken place in the Republic.‟

[37] Para (b) of the definition refers to an activity outside the Republic, whereas
para (a) thereof makes no reference to territory. In supplementary heads of
argument, counsel for the appellant submitted that para (a) of the definition requires
that the offences in terms of the Act listed therein, must be committed in the

Republic. We are unable to agree. The offences in para (a) consist of terrorist and
related activities which, in terms of the definition of „terrorist activity‟ in the Act, may
take place anywhere in the world. Para (a) of the definition of „specified offence‟ does
not contain any limitation in respect of territory. It must be borne in mind that s 15
was inserted for the very purpose of empowering a domestic court to try offences in
relation to terrorist activity committed elsewhere. There is no conceivable other
reason for including such a provision relating to jurisdiction.

[38] Both paras (a) and (b) of the definition of „specified offence‟ are qualified by
the introductory reference to ss 4, 14 and 23. Section 4 deals with the financing of
specified offences. Section 14, on the other hand, provides for criminal liability in
relation to threats, attempts, conspiracies and assistance, inducements, etc to
commit an offence. However, s 14, is in turn, qualified by the reference to s 4.
Section 23 deals with prohibition and freezing orders in respect of property believed
to be owned or controlled by an entity which has committed a specified offence and
need not detain us further. It follows that the definition of „specified offence‟ provides
for two categories of offences, namely, (i) the financing of an offence listed in para
(a) of the definition, ie an offence in terms of the Act wherever committed and (ii) the
financing of an activity outside the Republic described in para (b) of the definition ie,
one which constitutes an offence under the law of another state that would have
constituted an offence in terms of the Act had that activity taken place in the
Republic. Section 15(1) caters only for extra-territorial jurisdiction in relation to (i)
above. It does so when the accused person was arrested in South Africa or any of
the requirements set out in s 15(1)(b)(i) to (viii) were met or the evidence reveals any
other basis for jurisdiction recognised by law. It was not suggested by counsel for
any of the parties that subparagraph (b) of the definition of „specified offence‟ found
application in this case. It is thus not necessary to determine the circumstances
under which it will find application.

[39] Counsel on behalf of the State was constrained to concede that the Act was
not a model of clarity and in parts badly drafted. He also accepted that, read literally,
s 15(1) read with paragraph (a) of the definition of „specified offence‟, cannot have a
meaning other than that set out above. However, it was contended by counsel on
behalf of the State, that to interpret it in that manner would emasculate the Act and

that one should assume that the intention of the legislature was to broaden the
application of the legislation rather than to have it restricted. It was submitted further,
that to follow the literal wording would lead to absurd results and could not have
been what the legislature had intended. As we understood the argument, it was
suggested that it would be absurd for the legislation to provide for extra-territorial
jurisdiction in respect of the more circumscribed offence of financing of terrorist
activities, rather than what is covered by the wide definition of „terrorist activity‟ ─
which the Act was intended to regulate.

[40] The argument must be rejected. First, as we will show, extra-territorial
jurisdiction in respect of offences in terms of the Act other than financing thereof, are
provided for in s 15(2). Secondly, counsel on behalf of the State was constrained to
accept that in order to reach the interpretation he contended for, it would be
necessary not only to strain the language of the legislation, but also either to exclude
certain words, or read in others, or both. Thirdly, it is the legislature‟s prerogative to
decide to what degree it would extend the jurisdiction of domestic courts in respect of
all terrorist and related activities. It chose to do so in the terms set out above. It
chose, in its wisdom, to restrict the category to those of financing or assisting in the
financing of terrorist activities and those mentioned in s 15(2). It is not within our
province to question the legitimate policy choices made by the legislature.13

[41] We turn to deal with the wording of s 15(2), set out in para 35 above. Its
introductory words are couched widely. It provides for extra-territorial jurisdiction in
relation to a person other than one catered for in 15(1), if the conditions in s 15(2)(a),
(b) and (c) are met. A person contemplated in s 15(1), as demonstrated above, is
one who has committed an offence referred to therein and to whom the provisions of
s 15(1)(a), (b) or (c) apply. Section 15(2), on the other hand, involves jurisdiction in
relation to any person who has committed an offence in terms of the Act other than a
person contemplated in s 15(1), provided sections 15(1)(a), (b) or (c) apply. Those
subsections must be read conjunctively. This means that the act must affect or be
intended to affect a public body, person or business in the Republic, the accused
must be found to be in the Republic, and there is no application for the accused‟s

13 See Weare & another v Ndebele NO & others [2008] ZACC 20; 2009 (1) SA 600 (CC) para 58.

extradition or the accused has, for one or other reason, not been extradited. As none
of the offences in counts 1 to 12 affected South African interests, s 15(2) does not
provide for extra-territorial jurisdiction in this case.

[42] Section 15(3) requires only brief attention. It was inserted purely in order to
determine which domestic court within the Republic will hear a matter once
jurisdiction had been established in terms of s 15(1) or s 15(2).

[43] It is now necessary to examine the facts and relate them to the counts in the
indictment. Counts 1, 3, 5 and 7 are all related to the Warri bombing. It is clear that
the appellant had departed from South Africa almost a month before it occurred.
There was evidence that the appellant had travelled to Nigeria and crossed the
border other than at an official crossing point. Every act committed by the appellant
which constituted those offences as set out in the indictment, was committed by him
outside of the Republic of South Africa. None of the counts set out at the beginning
of this paragraph involve the financing of offences. As discussed above, our courts
have extra-territorial jurisdiction in terms of s 15(1) of the Act only in relation to the
crimes of the financing of the offences set out in para (a) of the definition of „specified
offence‟.

[44] The provisions of s 15(4), which deal with conspiracy and incitement, set out
above, are not applicable to the counts dealt with in the preceding paragraph
because none of the offences envisaged in that section occurred within South Africa.
There is no compelling evidence of a conspiracy or incitement here to commit the
offences in question.14

[45] Claassen J did not engage in the interpretative exercise as set out above. The
court below thus erred in assuming jurisdiction in relation to counts 1, 3, 5 and 7. In
respect of those convictions, the appeal is thus bound to succeed.

14 In para 96 of the judgment the court a quo referred to evidence of a witness who at the instruction
of the appellant had conducted a reconnaissance of the venue where the post-amnesty dialogue
would initially have taken place. This is far removed from the indictment and in any event it is unclear
whether the appellant gave the instruction whilst in South Africa.

[46] We now turn to deal with count 9, which does implicate the financing of
terrorist activities. It concerns a contravention of s 4(1)(f) of the Act, read with the
necessary associated sections. In the present case, the appellant was charged with
providing more than 2 million Nigerian naira to three individuals for the purposes of
acquiring and adapting vehicles and to purchase explosives for use in the Warri
bombing. This constituted financing of offences within the meaning of para (a) of the
definition of „specified offence‟. The appellant was arrested in the Republic of South
Africa and the bombing was essentially perpetrated by him, being a person ordinarily
resident within the Republic. It follows that in respect to count 9, the court a quo was
clothed with extra-territorial jurisdiction in terms of s 15(1). That conviction can thus
not be faulted on the basis of lack of jurisdiction.

[47] In respect of count 11, it is necessary to have regard to the particulars set out
in the indictment. The appellant was charged with contravening the provisions of
s 3(1)(a) of the Act. That subsection reads as follows:
„(1) Any person who –
(a) does anything which will, or is likely to, enhance the ability of any entity to engage in
a terrorist activity, including to provide or offering to provide a skill or an
expertise; . . .
for the benefit of, at the direction of, or in association with any entity engaging in a terrorist
activity, and who knows or ought reasonably to have known or suspected, that such act was
done for the purpose of enhancing the ability of such entity to engage in a terrorist activity, is
guilty of the offence associated with a terrorist activity.‟
The factual averments in the indictment are that the appellant provided two clock
timer devices that were fitted into the two vehicle-borne improvised explosive
devices that were used in the Warri bombing. The court below found that the two
timing devices used in the Warri bombing were acquired by the appellant in South
Africa or were in his possession and that he had then transported them to Nigeria for
the purposes of the bombing. The appellant thus contravened the provisions of
s 3(1)(a) of the Act while still in South Africa, and the conviction on this count did not
involve an assumption of extra-territorial jurisdiction. That conviction, too, cannot be
faulted.

[48] We now turn our attention to the counts related to the bombing in Abuja,
namely, counts 2, 4, 6, 8, 10 and 12.15 The appellant conspired, planned and
instructed people in relation to the execution of the bombing in Abuja whilst in South
Africa. Simply put, there is no need in relation to these counts to examine the ambit
of the extra-territorial application of the Act because he orchestrated the Abuja
bombing from within the Republic of South Africa. It is as elementary as follows. The
appellant was arrested here and charged locally for acts he committed within the
country and a domestic court would therefore obviously have jurisdiction. In respect
of these counts, the convictions by the court below must therefore also remain in
stead.

[49] It now remains for us to deal with count 13. It will be recalled that Claassen J
relied in this regard on the evidence of Kerry and Zeeman.16 The essential problem
for the State is that there was no acceptable evidence connecting the appellant with
the e-mail referred to in para 18 above. The evidence of Kerry, that he had been
made aware of the threat contained therein and that it was a cause for concern, is
therefore of no assistance to the State. The expert evidence adduced by the State in
relation to information technology did not cure the defect. What remains to be dealt
with is the evidence of Zeeman. It is clear from the indictment that it is inextricably
reliant on the Timi e-mail. The evidence of Zeeman would only be of assistance if it
would link the email to the appellant, which it does not. For these reasons the court
below erred in convicting the appellant on this count.

[50] The result of the abovementioned convictions being set aside is that the
sentences imposed have to be looked at afresh. Counsel for the parties were agreed

15 Count 2 is a contravention of s 2 of the Act, which involves engaging in terrorist activities and the
alternative charges related thereto. Count 4 is a contravention of s 5(a) of the Act which involves the
delivery, placing, discharge or detonation of an explosive device causing death and/or serious bodily
injury and the alternatives relating thereto. Count 6 is a contravention of s 5(b) of the Act which
involves the delivery, placing, discharge or detonation of an explosive device with the purpose of
causing extensive damage to and/or destruction of inter alia a place of public use and/or public
transport facility and/or government facilities, and the alternatives relating thereto. Count 8 is a
contravention of s 8(a) read with s 14(b) of the Act, which deals with attempts to cause harm to
internationally protected persons, and relates to the figures referred to earlier in the judgment who
were in the vicinity of where the Abuja bombing occurred. Count 10 is a contravention of s 4(1)(f) of
the Act involving financing of terrorist activities, and the alternatives relating thereto. Count 12 is a
contravention of s 3(1)(a) of the Act involving enhancing the ability of an entity engage in a terrorist
activity.
16 See para 20 above.

that it would be in the interest of justice for this court to finalise that question without
the need for it to be remitted for consideration afresh by the trial court. It will be
recalled that the sentence in relation to count 13, which was that of 10 years‟
imprisonment, was ordered to run concurrently with the sentence in relation to the
Abuja bombing. The effective sentence was one of 24 years‟ imprisonment.

[51] In relation to the Warri bombing the only convictions that were not displaced
were in relation to counts 9 and 11. In respect of an appropriate sentence, it is
necessary to bear in mind that that these counts involved the appellant  providing
finance and equipment without which the bombing would not have been executed. It
is also necessary to take into account that there was an amnesty in place, which
appears to have been accepted by all the major actors involved in the past struggles
in the Niger Delta, including the appellant and his cohorts. The subsequent
bombings took place despite the acceptance of the amnesty and in contravention
thereof. The Warri event at which the bombing occurred, appears to have been one
arranged by a newspaper to air, discuss and address the grievances of persons
living in the Niger Delta affected by the prior lack of concern on the part of the
government of Nigeria. The bombing disrupted that event and prevented those
discussions from taking their course. Furthermore, it is significant that a school was
located within the immediate vicinity of the bombing and the appellant was aware of
that fact. Fortunately, it was decided to close the school for the day because of the
event.

[52] It is also necessary to take into account that the two bombs were set up so
that they did not explode simultaneously, with the second bomb only exploding ten
minutes after the first. As explained above, the intention was that the first explosion
would create chaos and confusion and draw a crowd to the scene of the disruption,
ensuring that the second explosion would wreak even more havoc. It is also
necessary to record that the appellant was upset that the bombs had not been
placed closer to the buildings at which the event took place, despite being warned
that this would result in more deaths, as he desired the bombings to have a greater
devastating effect.

[53] Having regard to what is set out above, limited interference with the sentence
imposed in relation to the Warri bombings is called for.

[54] In our view, the following sentences ought to be imposed:
(i)
In respect of the convictions on counts 9 and 11 (relating to the Warri
bombing), taken together, 8 years‟ imprisonment is appropriate.
(ii)
The sentence in relation to the Abuja bombing, namely, 12 years‟
imprisonment, remains in place.
(iii)
The two sentences are not to run concurrently.
(iv)
The effective sentence is thus one of 20 years‟ imprisonment.

[55] The following order is made:
1. The appeal is upheld to the extent reflected in the substituted order of the court
below, set out hereafter.
2. In respect of conviction, the order of the court below is set aside and substituted
as follows:
„The appellant is convicted on counts 2, 4, 6, 8, 9, 10, 11 and 12.‟
3. In respect of sentence, the order of the court below is set aside and substituted as
follows:
„Counts 2, 4, 6, 8, 10 and 12 are taken together for purposes of sentence and the accused is
sentenced to 12 years‟ imprisonment.
Counts 9 and 11 are taken together for purposes of sentence and the accused is sentenced
to 8 years‟ imprisonment.
The effective sentence is thus 20 years‟ imprisonment.‟

______________________
M S Navsa
Judge of Appeal

______________________
C H G van der Merwe
Judge of Appeal

Appearances:

Counsel for Appellant:
J P Marais (and P I Uriesi) (Supplementary heads of
argument prepared by G C Muller SC)

Instructed by:

MVB Incorporated, Pretoria

Botha & De Jager Attorneys, Bloemfontein

Counsel for First Respondent:
J P Pretorius SC (and J J du Toit) (Heads of argument
prepared by S K Abrahams)

Instructed by:

Director of Public Prosecutions, Johannesburg

Director of Public Prosecutions, Bloemfontein

Counsel for Third and
Fifth Respondent:

M T K Moerane SC (and E B Ndebele)

Instructed by:

State Attorney, Pretoria

State Attorney, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

3 October 2016

STATUS

Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment.

Okah v S (19/2014) [2016] ZASCA 155 (3 October 2016)

MEDIA STATEMENT

Today, the Supreme Court of Appeal (SCA) upheld only in part an appeal by Mr Henry Emomotimi
Okah against his convictions on a number of charges under the Protection of Constitutional
Democracy Against Terrorist and Related Activities Act 33 of 2004 (the Act), imposed by the South
Gauteng High Court, Johannesburg. As a result, Mr Okah’s convictions on five of thirteen counts
were set aside, and an effective sentence of 24 years’ imprisonment was reduced to an effective 20
years’ imprisonment.

The two issues before the SCA were (i) whether the court below had jurisdiction to try Mr Okah on
each of the various charges against him; and (ii) whether, in respect of count 13, the evidence
adduced by the State was sufficient to prove his guilt beyond a reasonable doubt.

Mr Okah was charged with 13 counts of terrorism-related offences under the Act, following on two
separate bombings in Nigeria, as a result of which 12 people were killed, 64 severely injured and
property was damaged. Mr Okah had allegedly been involved in the planning and execution of these
bombings. Six counts related to the first bombing, in Warri, Nigeria, on 15 March 2010. Six counts
related to the second bombing, in Abuja, Nigeria, on 1 October 2010. And count 13 related to an
allegation that Mr Okah had threatened certain South African entities in Nigeria with destabilising
terrorist activities.

Before the SCA, Mr Okah accepted the correctness of the factual findings of the court below in
respect of the convictions on counts 1 to 12, and also abandoned a constitutional challenge against
the provisions of the Act. On appeal, Mr Okah’s argument in respect of the first 12 counts was solely

that the court below had no jurisdiction to try him, because the bombings had taken place outside of
South Africa.

The SCA held that, on a proper interpretation of the Act, a South African court would have extra-
territorial jurisdiction if the provisions of either s 15(1) or s 15(2) were applicable. On the facts, s 15(2)
did not apply to any of the counts, and so extra-territorial jurisdiction would only apply if the
requirements of s 15(1) were met. Essentially, this section grants extra-territorial jurisdiction in
respect of financing offences, ie offences related to the financing of terrorist activities, and applies
regardless of where the financing occurred. In addition, however, the SCA noted that a South African
court could have jurisdiction where the ordinary requirements of territorial jurisdiction were met.

In relation to the Warri bombings, the SCA held that the court below did not have jurisdiction in
respect of four of the six counts, because these offences had taken place outside of South Africa and
were not financing offences (and therefore s 15(1) did not apply). Accordingly, the convictions on
these counts were set aside. However, in relation to the other two counts, the SCA held that the court
below did have jurisdiction. One count was a financing offence, and the other count consisted of
actions taken wholly within South Africa, and therefore the court could assert its conventional
territorial jurisdiction.

In relation to the Abuja bombings, the court held that Mr Okah had conspired, planned and instructed
people in relation to the execution of the bombing in Abuja whilst in South Africa. Therefore, the court
below had jurisdiction in respect of all six counts on the basis of its ordinary territorial jurisdiction.

Finally, in relation to count 13, Mr Okah’s challenge was that the evidence adduced by the State did
not prove beyond a reasonable doubt that he was responsible for the threats made against the South
African entities in Nigeria, which took the form of an email sent in the name of another person while
Mr Okah was in custody. The SCA upheld this challenge and set aside that conviction and sentence.

Having set aside these convictions, it was necessary for the SCA to amend Mr Okah’s sentence
accordingly. The court below had taken the counts in relation to each of the two bombings together
for purposes of sentencing, and had sentenced Mr Okah to 12 years’ imprisonment in respect of the
Warri bombing and 12 years’ imprisonment in respect of the Abuja bombing.

On appeal, the SCA did not interfere with the sentence for the Abuja bombing, but reduced the 12
years’ in respect of the Warri bombing to 8 years’ imprisonment. This resulted in an effective 20
years’ imprisonment.

--- ends ---