Extradition Treaty and Mutual Legal Assistance between South Africa and Iran: briefing

Meeting report

Mr John Makhubele, Chief Director: International Legal Relations, DoJCD, updated the Committee on the progress made so far on the Extradition Treaty and Mutual Legal Assistance in Criminal Matters Treaty between South Africa and Iran. He commenced the briefing with detailed background information on the treaties. The then Department of Foreign Affairs had proposed that South Africa entered into these treaties with Iran and negotiations between both countries commenced. When the Department went into negotiations, it was mindful of the human rights situation in Iran. After negotiations, the former Director General of the Department updated the former Minister, Brigitte Mabandla, about the treaties that had been negotiated and sought approval that they be signed. The then President, Mr Thabo Mbeki, granted approval to sign the treaties and a South African delegation went to Iran in 2004 to conclude and sign both treaties. Before the signing of the treaties, there was a briefing with the then Ambassador, and the Ambassador impressed on them the need to go ahead with signing both treaties. Both treaties were signed by Minister Mabandla and a counterpart in Iran. The process of ratification had been met with delays after signing. The Office of the then Director General through its officers in the International Legal Relations sub programme, sent a Memorandum for the ratification of the treaty to Minister Mabandla, and no particular response was given on the issue for a few years. This led the Department to believe that perhaps there were second thoughts on the signing of the treaties, hence the delay in ratification. Iran concluded its own internal procedures to ratify the treaties while South Africa was lagging behind. In 2008 the Department was informed that the memorandum to Parliament had been lost without a trace. In 2009, the current Minister, Mr Jeffrey Radebe, was appointed. He was updated on the progress of the treaties and he approved that the Department goes ahead in pursuing the ratification of the treaties.

The Department was mindful of the human rights situation in Iran, thus the treaty on extradition had safeguards ensuring that no South African citizen would be extradited to Iran for offences carrying the death penalty, except where assurances had been given by Iran. On Mutual Legal Assistance, the treaty covered turning in legal evidence as well as surrendering forfeited properties which were the instrumentalities in the commission of crime, which would be kept by the requesting state until the conclusion of the trial. At the end of trial, it would be decided between both States whether the properties were to be kept permanently by the requesting state or returned.

The nature of the treaties in terms of cost provided that the requested State bears the costs. But on costs covering request for assistance in investigation as well as obtaining of evidence, where the costs were astronomical, the treaties provide that both the requesting and requested state reach an agreement on sharing the costs.

Discussion
The Chairperson expressed disappointment and questioned the Department on the reasons for the delay in the ratification of the treaties.

Ms Nonkululeko Sidane, DoJCD Director General, responded that it was not standard procedure with the Department that treaties took this long to be submitted to Parliament for ratification. Procedurally, treaties should be ratified as soon as possible after signing. To forestall a reoccurrence, the Forum of Directors General in South Africa (FOSSAD), had met recently and decided on adopting effective mechanisms to deal with international instruments. Research – identifying all treaties acceded to as a country – had been carried out and consolidated into a report which would be forwarded to the Cabinet for action. The Department had identified that it needs to come up with a definitive action plan on how to avoid reoccurrence of such delays. In this regard, the Department intended to use an electronic warning reminder system for its officials to ensure that they keep track of responsibilities becoming due in terms of ratification processes for treaties. The Department also intended to procure capacity in assisting with its treaties as it did not have sufficient capacity in its employ. Monthly monitoring and reporting processes in the Department was also to be employed to this end.

Mr M Makhubela (COPE, Limpopo) asked if the Department had documents to verify the existence of the initial memorandum which it claimed was sent to Parliament and was missing.

Ms Sidane clarified that the document in question was an internal memorandum sent to the Minister at that time, Brigitte Mabandla. Ms Sidane acknowledged that with the benefit of hindsight, the Department failed to follow up on it as aggressively as it should have. The Department could not form an opinion on why the treaties had not yet been ratified by Parliament and whether there had been a change of heart about the treaties by Iran, as it did not have enough facts on the issue.

Mr Makhubele added that the Memorandum of Understanding referred to was an internal memo prepared for the Minister Mabandla. Documents regarding the ratification would be forwarded to Members as requested.

Mr D Joseph (DA, Western Cape) noted that South Africa was a party to several international conventions on human rights and a member state of international organisations such as the United Nations and the Commonwealth and these organisations had expressed concerns over the incidences of gross human rights violation in Iran. He questioned if the Department had taken this into consideration before signing the treaties with Iran and if South Africa’s treaty with Iran would not eventually backfire, doing more harm than good.

Mr Makhubele responded that the Department had held recent meetings with the Director General of the Department of International Relations and the SA Human Rights Commission who had given insight into the relationship between South Africa and Iran. The Department had been advised that there had been renewed attempts at building stronger diplomatic ties between both countries.

Mr D Bloem (COPE, Free State) stated that although he had been satisfied with answers from the Department, it was necessary that the Committee debated the ratification of the treaties in the light of human rights violations in Iran.

Ms Sidane responded that to the extent that South Africa was a member state to the international organisations named, it had an obligation to address issues of concerns highlighted, however it also had an obligation to address this on a country to country basis. No mandate had been given to the Department to terminate relations with Iran and the Director General of the Department of International Relations had assured DoJCD of South Africa’s existing diplomatic relations with Iran and that South Africa had an obligation on its part to honour the treaties it had signed with Iran. South Africa was an independent nation guided by its own constitution and to the extent that any treaty contravened its constitution then it would be of great concern. The treaties provided for safeguards whereby South Africa could ask for assurances where South African citizens are to be extradited to Iran and other countries with which South Africa had similar treaties.

Mr Joseph asked what the position of the African Union (AU) and Southern African Development Community (SADC) was on Iran as regard human rights violations. He opined that since these organisations were continent-based they would better guide the Committee in its assessment on the ratification of the treaties.

Ms Sidane stated that it would be presumptuous to give a specific response to the question. However, South Africa played a major role in both the AU and the SADC and the Department would be aware if these organisations had placed any embargo on its member states whether directly or implicitly, in dealing with Iran. To the extent that the Department was aware, there were no such limitations. Ms Sidane solicited Member’s indulgence for time to research further on the issue and update the Committee at a later date.

Mr Joseph asked for clarification on what the Department meant in its presentation by ‘internal procedures’ of Iran.

Mr Makhubele clarified that these were the procedures leading up to the ratification of treaties after signing. When a treaty had been signed, the Department drafted a Memorandum to the Minister on the treaty, which the Minister approved and then sent to Parliament for ratification of the treaty.

Ms Sidane added that the internal procedures on the part of Iran were similar to South Africa for the process of ratification and that Iran had successfully completed its process, whereas South Africa was still lagging behind, hence the need to ratify the treaties expeditiously.

Mr Joseph asked if South Africa had a consular office situated in Iran

Mr Makhubele responded in the affirmative and confirmed that South Africa had a full embassy in Iran.

Mr Bloem asked for clarification on whether there was an existing Memorandum of Understanding.
No specific response was given by the Department to this question.

Mr Bloem referred to the Department’s presentation and the case it had cited which was decided by the Constitutional Court (President of RSA V Nello Quagliani and others) and asked what year the case had been decided.
No specific response was given by the Department to this question.

The Chairperson thanked the Department for its briefing to the Committee. The meeting was adjourned.