Extradition Treaty between RSA & Government of Islamic Republic of Iran; Agreement between RSA & Islamic Republic of Iran on Mutual Legal Assistance in Criminal Matters

Meeting report

Once the Acting Chairperson had opened the meeting, Mr A Matila (Gauteng, ANC) expressed “serious concern” about what seemed to be a tendency on the part of the Department of Justice and Constitutional Development to brief the Committee without sending a senior accounting officer. Mr D Bloem (Free State, COPE) wanted to know whether the same situation prevailed when the Committee’s National Assembly counterpart, the Portfolio Committee, was briefed by the Department. Mr Matila pointed out that there was no one present who was able to answer that question, and suggested that the Committee write a letter of enquiry to the Department. The Chairperson noted the concern raised by members, and asked the delegate from the Department to proceed with the briefing.

Department of Justice and Constitutional Development (DoJ&CD) briefing
Ms Berdine Fourie, DoJ&CD State Law Adviser, began with an historical background of how the two international legal instruments first came into being. Ms Bridgette Mabandla, then the Justice Minister, had approved the negotiation of the two agreements between South Africa and Iran. Negotiations were conducted between South Africa’s Department of Justice and Constitutional Development and Iran’s Ministry of Justice.

When negotiations were concluded, draft agreements were submitted to the State Law Advisers of the Department of Justice and Constitutional Development, as well as of the Department of International Relations and Cooperation. The State Law Advisers informed the Department that the provisions contained within both instruments were in accordance with South Africa’s domestic law and international legal obligations.

The Chief Directorate of International Legal Relations submitted a memorandum to then-Minister Mabandla and a request was sent to President Mbeki, asking permission for Ms Mabandla to sign the agreements on behalf of the Republic of South Africa. President Mbeki accordingly signed the presidential minute in 2004, giving Ms Mabandla authority to do so. A memo seeking ratification of the agreements was subsequently misplaced. This led to a situation where the Chief Directorate had to submit an additional memo, and was the reason that the Committee was being briefed seven years later.

Ms Fourie explained some of the most important provisions of the Agreement on Mutual Legal Assistance in Criminal Matters. One unusual provision dealt with “dual criminality”, and provided that legal assistance could only be sought if the offence was an offence in both the requesting and the requested state. Assistance may be refused or postponed in certain circumstances, for example, if it was in the national interests of the requested state; if it would be prejudicial to certain groups on grounds of religion; if criminal investigations or proceedings were pending in a requesting state; or if assistance could not be provided in terms of the law of the requested state. Costs would be borne by the requesting state, and in extraordinary proceedings, costs could be negotiated. Overall, the Agreement on Mutual Legal Assistance in Criminal Matters was quite a comprehensive international legal instrument.

Ms Fourie gave an overview of the key provisions of the Extradition Agreement. In order for a state to request extradition of a fugitive, the offence in question had to be an offence in both countries, and had to be punishable by a sentence of at least one year’s imprisonment. Grounds for refusal included the unusual provision that the requested state may refuse to extradite the fugitive if the person was a national of the requested state. If the requested state refused to extradite a fugitive on that basis, the requested state must submit the case to its prosecuting authority, with a view to instituting proceedings within the requesting state. Further, the requested state may refuse extradition if the matter involved a political or military offence, or in cases where the potential sentences for the offence in question were substantively different as between the contracting states. The requested state may refuse extradition if the requesting state failed to provide assurance that the person in question would not be subjected to cruel, inhuman or degrading punishment, tortured, or detained without trial.

There was no specific provision dealing with extradition in cases where the death penalty could be imposed, but that eventuality was covered by the provision regarding cruel, inhuman or degrading punishment as South Africa’s Constitutional Court, in the Mohamed case, held that the death penalty amounted to cruel, inhuman or degrading punishment. The South African government would refuse extradition in cases where a person could be sentenced to the death penalty in the requesting state. Iran still practiced the death penalty, so this position would apply unless the government of Iran assured South Africa, in writing, that the death penalty would not be imposed, or, if imposed, would not be carried out. The remainder of the provisions were standard in extradition agreements between states.

Discussion
Mr L Nzimande (Kwa-Zulu Natal, ANC) wanted to know more about the principle of refusal by the requested state, for example, in cases where the possibility of the death penalty were involved. He asked for clarity regarding the provision that made reference to detention without trial, and pointed out that the very basis of any extradition agreement was that the person in question should stand trial in the requesting state. In South Africa, there was the presumption of innocence until guilt was proved in a court of law, but it was uncertain whether Sharia law respected this principle. He questioned how the harsh sentences that were prescribed in terms of Sharia law could be consistent with human rights, as enshrined in South Africa’s Constitution.

Mr Matila said that the issue of the misplaced memo was an indication that the Department of Justice and Constitutional Development did not treat the matter with the level of seriousness it should have. He also had some doubts about the constitutionality of the extradition agreement, even though, on the face of it, it appeared to be the same as most other extradition treaties. The Committee’s legal advisers and researchers should give some guidance about the human rights issues that had been raised. The Committee might want to amend some of the provisions.

Mr D Joseph (Western Cape, DA) asked what safeguards were in place to prevent a situation whereby people were extradited to a country and then simply “disappeared”, since this would not be acceptable in terms of South Africa’s legal system, grounded as it were in the rule of law.

Ms Fourie replied, with reference to the provision dealing with cruel, inhuman and degrading punishment, that the extradition treaty provided that any request for extradition must contain certain statements. This included a statement setting out the maximum sentence that may be imposed in that particular case. The South African Chief Directorate would then forward the request for extradition to the Minister of Justice and Constitutional Development, along with a memorandum stating whether the request included a statement regarding possible sentencing. That was the first step before the matter were referred to the magistrate’s court for an extradition enquiry to proceed. This process meant that possible grounds for refusal were identified at an early stage. The court only had to decide whether there was sufficient evidence to warrant the prosecution of the fugitive in the requesting state, and whether the fugitive were extraditable or not.

An additional memo would then be submitted to the Minister, advising him or her whether a surrender order should be granted or refused. If there were any chance that the death penalty or cruel, inhuman or degrading punishment would be imposed, the Minister would be advised firstly to seek written assurance from the government of Iran that it would not be. If such assurance were not provided, the Minister would be entitled to refuse to order the surrender of the person.

The provision dealing with detention without trial was an unusual one. Its purpose was to ensure that a person who was extradited to Iran would not be held without trial. If a person were extradited to Iran and then “disappeared”, that would be an issue that would have to be dealt with by South Africa’s Department of International Relations and Cooperation.

Mr Matila pointed out that Iran was currently defying the international community, and asked why South Africa should rely on that country's word alone when it came to such serious matters. He questioned the wisdom of entering into a treaty with a country that may very well fail to adhere to it, and questioned whether South Africa was signing treaties merely for the sake of it.

Mr Bloem wanted clarification on the unusual provision dealing with detention without trial. Considering that the treaty was originally negotiated and signed in 2004, it was important to consider whether the relationship between South Africa and Iran had changed since then.

Mr Nzimande asked what guarantees were in place to ensure that a person was not kept in detention without trial, and how it could be assured that this would not happen in practice. He asked what the repercussions would be if a person were extradited to South Africa, with its backlogged court roll, and questioned whether this would mean that person would have to be guaranteed bail. He reiterated that the Committee needed to engage with a representative from the Department who could engage on a higher level, since it was becoming increasingly clear that political issues were involved. He asked if South Africa had ever implemented any mutual legal assistance or extradition in terms of the lapsed treaties, and if any requests had been made since it was first negotiated in 2004. He questioned whether the agreement had been subjected to constitutional scrutiny, what context existed when it was brought into being, and if it was a political or simply a legal agreement. The issue of detention without trial was linked to other related issues that affected relations between countries, such as those of foreign mercenaries.

Mr Nzimande again raised concerns about the protection of human rights, and stated that the agreements under consideration should primarily seek to avoid violations of rights.

Mr Matila questioned whether the Department of Justice and Constitutional Development had done sufficient research, and noted concern that this did not always take place in practice.

Mr VM Manzini (Mpumalanga, DA) sought clarity as to whether Iran did in fact use Sharia law, as he understood that legal system would be in conflict with South Africa’s.

The Chairperson raised the issue of amendments, and suggested that the Committee consider amending the provisions it had raised concerns about. He questioned what would happen in practice if a South African were to be detained in Iran.

Mr Matila said that there was a need to check the urgency of the matter. If it were not urgent, there may be a need for further political engagement. He reiterated that the representative sent by the Department of Justice and Constitutional Development did not necessarily have the capacity to answer all of the questions that had been raised by members.

Ms Fourie stated that Minister Jeff Radebe had recently raised the issue of South Africa’s image concerning both extradition and mutual legal assistance, as there was a perception in some circles that South Africa was a safe haven for fugitives. There was a very pressing need for this type of treaty between nations, but she did not know who had initiated the original agreements or what the underlying reasons were. A foundational principle of international law was that of pacta sunt servanda, meaning good faith between nations and the mutual understanding that agreements would be honoured. With respect to the constitutionality of the treaties, the State Law Advisers had reviewed and approved the draft agreements of the treaties, and it was their responsibility to ensure that such treaties were in accordance with South African law.

The treaties provided grounds of refusal precisely in order to deal with cases in which there might be a violation of rights and freedoms as set out in South Africa’s constitutional framework. With reference to the issue of a potential violation of constitutional rights, if Iran requested the extradition of a fugitive and that person knew of conditions prevailing in Iran that suggested rights would be violated, that person should submit representations to the Minister about the actual position on the ground in Iran. The Minister would then request further information from Iran, in light of the information received from the fugitive. Such a situation had not been encountered in practice, but the possibility remained that the Minister could refuse to grant extradition in such circumstances.
Ms Fourie was unaware as to whether South Africa had made or received any extradition requests to date.

Mr Bloem reiterated that the Committee was ultimately faced with a political question, and proposed that the meeting be postponed, as the Committee could not approve something while there were still outstanding questions about it.

Mr Matila agreed, and reminded the Committee that on more than one occasion, the South African President and certain Ministers had been embarrassed as a result of decisions taken on the basis of poor legal advice.

The Chairperson said that had he known that such major reservations and unanswerable questions would be raised, he would have proposed postponing the meeting at the very start. The Committee had already engaged on the issues, but the fact that the Committee was dealing with a political issue without much guidance from the Department raised a note of serious concern. The Committee would report to the Minister as to why it sought input from a senior accounting officer. The Committee also needed to consider a comparison between the constitutions of South Africa and Iran, and whether Iran did in fact follow Sharia law. The issue of the lost memo was also one that needed to be addressed satisfactorily. The Committee was not being arrogant, but it had to avoid passing laws that would meet with controversy at a later stage.

Mr Joseph suggested that the Committee also engage with the Department of International Relations and Cooperation with respect to the issues that had been raised.

Mr Nzimande remarked that it was not inappropriate to reconvene the meeting, as the Committee had in fact received the briefing, taken notes and raised additional concerns. As such, it was not suggesting a “postponement” in the strict sense of the word.

Mr Matila repeated that in future an accounting officer from the Department would have to attend meetings dealing with such serious issues. If it was not the Minister himself, some other senior politician, such as the Deputy Minister, should be in attendance. It seemed as though the Department was actually undermining the work of the Committee. He could not recall when last a senior member of the Department attended a meeting of the Committee.

Mr Bloem sought clarity as to whether the meeting would continue or not, to which the Chairperson responded that all outstanding questions would be noted and directed to the Department for a response.

Mr Matila was concerned that the Committee had not properly addressed the issue of senior leadership, and he raised a note of caution in this respect. The Committee did not want to find itself in a position whereby it approved laws without properly comprehending the complete legal and political context it was operating within.

The meeting was adjourned.