summary

• • The “Secretariat”: Although introduced by Al Jama-ah, the Bill is piloted on behalf of a “secretariat” of eight parties, including the ANC, EFF, MK Party, PAC, and GOOD. This indicates broad cross-party support within the “progressive” bloc of Parliament.
  • Accession to Convention: The Bill follows the South African government’s accession to the 1973 UN Apartheid Convention on 14 May 2024. The Bill acts as the “enabling legislation” required to make that international commitment enforceable in domestic courts.
  • Palestine Focus: Al Jama-ah leader Ganief Hendricks has explicitly stated the Bill’s intent: “Israel is an apartheid state and those South Africans… who support it, are therefore complicit and must face the full might of the law”.

The Bill proposes three major shifts in South African criminal law:

A. Stand-Alone Crime
Currently, apartheid is prosecuted as a subset of “crimes against humanity” under the Rome Statute. This Bill makes it a distinct crime with its own specific definition derived from the 1973 Convention, potentially lowering the threshold for prosecution by focusing specifically on “institutionalised regimes of systematic oppression”.

B. Extraterritorial Jurisdiction (The “Long Arm”)
The Bill grants South African courts jurisdiction over the crime even if it is committed outside the country. This applies if:

• • The perpetrator is a South African citizen or resident.
  • The victim is a South African citizen or resident.
  • The perpetrator is present in South Africa after committing the crime (Universal Jurisdiction principle).

C. The “Gatekeeper” Clause
To prevent frivolous private prosecutions, the Bill creates a check: no prosecution can be instituted without the written consent of the National Director of Public Prosecutions (NDPP). This places the final decision to prosecute firmly within the state’s centralised legal authority.

The Bill represents a significant move to “weaponise” South Africa’s human rights laws for international justice causes. While it has strong support from the ruling ANC and major opposition parties (EFF, MK), its practical enforcement will depend heavily on the NDPP’s willingness to authorise prosecutions and the courts’ ability to navigate complex international jurisdictional issues.

Targeting Israel: The Bill is widely understood to be a strategic move to target the State of Israel and its officials. Critics, including the Democratic Alliance (DA) and Freedom Front Plus (FF+), view this as “lawfare”—using the legal system to fight foreign policy battles. There are fears that this could strain South Africa’s diplomatic relations with key trading partners who are allies of Israel (e.g., the US and UK).

“Apartheid State” Designation: By formally domesticating the crime of Apartheid as a stand-alone offense, the Bill creates a legal framework to label specific foreign nations as “Apartheid States.” This could force the South African government into diplomatic corners, obliging them to arrest visiting dignitaries from those nations, similar to the controversy surrounding the ICC and Omar al-Bashir.

Extraterritorial Jurisdiction (The “Long Arm”):

• • Enforceability: Legal experts raise concerns about the practicality of South African courts prosecuting crimes committed entirely on foreign soil. Investigating a crime in a hostile foreign jurisdiction (e.g., gathering evidence in Gaza or the West Bank without Israeli cooperation) is practically impossible.
  • Trial in Absentia: If the accused does not enter South Africa, the law may be toothless, serving only as a symbolic gesture rather than an effective legal tool.

The NDPP “Gatekeeper” Clause:

• • The Bill requires the written consent of the National Director of Public Prosecutions (NDPP) before any prosecution can start.
  • Concern: Supporters fear this could lead to political interference where the state blocks prosecutions to avoid diplomatic embarrassment. Conversely, opponents fear a “rogue” NDPP could authorise politically motivated prosecutions.

Fracturing the GNU: The Bill is championed by a “Progressive Caucus” (including ANC, EFF, MK) but opposed by key members of the Government of National Unity (GNU), specifically the DA and FF+. Pushing this Bill through could create fissures within the coalition government, as the DA has historically voted against motions labeling Israel an apartheid state.

Symbolism vs. Substance: Critics argue that the Bill is performative politics designed to rally voter bases around the Palestinian cause rather than legislation that will have a tangible impact on crime or justice in South Africa.

Resource Drain: There are concerns that establishing specialized units or allocating High Court resources to try complex international crimes will divert scarce resources away from addressing South Africa’s soaring domestic crime rates (murder, rape, corruption).

Overlap with the Rome Statute: South Africa already has the Implementation of the Rome Statute Act (2002), which criminalizes apartheid as a crime against humanity. Legal critics might argue this new Bill is redundant and creates confusion by establishing a duplicate legal regime for the same offense.