Extradition Treaty & Mutual Legal Assistance in Criminal Matters Treaty between RSA & Korea; Minister's request for lifting of suspension on Magistrate; Media reports on Public Protector

Meeting report

Korea/SA: Extradition treaty & Mutual Legal Assistance on Criminal Matters: Department of Justice & Constitutional Development briefing
Mr Herman van Heerden, Principal State Law Advisor, Department of Justice and Constitutional Development, noted that there had been quite a process to decide how to deal with the two treaties, which dated back some years.

He explained that the treaties were signed on 3 May 2007, by the then-Deputy President, without Presidential authorisation. The Department of Justice and Constitutional Development (the Department or DOJ&CD) had tried several times to see whether the treaties could be re-signed, but Korea indicated that it had already concluded its processes, so that this would not be possible. There was therefore a need to find another way to correct the matter. The Minister of International Relations and Cooperation had then written to the Minister of Justice, suggesting that the latter request the President to sign the treaties as if this was being done in the first instance, and the Minister of Justice was duly authorized to re-sign, which was done on 8 September 2010. However, after both the 2007 and 2010 treaties were submitted to the Department of International Relations and Cooperation (DIRCO), it advised that it had now obtained an opinion stating that it had not been necessary to re-sign, because the negotiation and signing of all agreements was the responsibility of the national executive. The President, as Head of the National Executive, and line-function Minister must confer. A distinction was drawn between the section 231(2) and 231(3) processes. The principle of Presidential approval was apparently only applicable to 231(3), and section 231(2) would be satisfied by the approval of both houses of Parliament. It was believed that the requirements of 231(1) were satisfied.

On that advice, the DOJ%CD had then prepared a Memorandum, which was submitted and approved by Cabinet on 8 November 2012, and the treaties were then channelled to this Committee. The Department had followed the correct procedures also by submitting the treaties to State Law Advisors in the DOJ&CDt and DIRCO, and the text was approved also by the Office of the President.

Mr van Heerden briefly took the Committee through the treaties, setting out the purpose of each article (see attached document for full texts).
 
Extradition treaty
Article 1 set out the obligations of speedy extradition of parties on a request for an extraditable offence. Article 2 described what an extraditable offence was; namely one for which a period of imprisonment of one year could be imposed, or where a remaining sentence still to be served was at least six months. Article 2(3) noted that the offence should be an offence against the laws of both countries, or dual criminality in both the requesting and requested state. Taxation laws or breaches of specific regimes were not included. Political offences were also not included. If there was one extraditable offence, then others would also be deemed covered.

Mr van Heerden noted that at present South Africa did not have extra-territorial jurisdiction to try offences, although this would be provided for in the new Bill.

Article 3 set out the mandatory grounds for refusal, and again repeated the principle that no extradition would be allowed for “political” offences, which would include an attack on a person or head of state. He noted that if South Africa was busy with cases in its own country against the individual requested for extradition, it would not extradite immediately. Sub-article (d) noted that the request would be refused also if it was made with a view to prosecuting or punishing a person by reason of their race, religion, nationality, ethnic origin, or sex.

Article 4 set out the discretionary grounds for refusal. Mr van Heerden highlighted (e), which had recently been confirmed by the Constitutional Court, that if an offence carried the death penalty under the law of the requesting party, South Africa could refuse to extradite unless a guarantee was given that the penalty would not be imposed or carried out.

Article 5 dealt with extradition of nationals. He repeated that at present South Africa could not prosecute in South Africa where it did not have jurisdiction, but the new Bill would allow South Africa to prosecute on grounds permitted outside the borders of South Africa. That would mean that all the witnesses would need to be brought in. Nationality was determined at the time of commission of the offence.

Article 6 set out he required documents that must be sought during the request. The request must be in writing, and set out, in particular, the essential elements of the alleged crime, the laws applicable and punishment for the offence.  Sub-article (3) related to documents for a person not yet convicted and (4) to the circumstances when a person had been convicted. These documents should be accompanied with translations. Details of certification were set out.

Additional information was set out in Article 7.

Article 8 dealt with provisional arrest, and set out time limits for a discharge from custody after 45 days. Article 9 set out simplified extradition processes, but noted that these would apply "to the extent permitted under its laws". In South Africa, there were no separate proceedings legislated for, so South Africa would have to follow the full process as described. However, Korea had a provision that applied specifically to a person who consented to return, should South Africa request extradition, which followed a simplified process.

Article 10 dealt with concurrent requests. Article 11 noted that the decisions on the request must be "promptly communicated to the requesting party” through the diplomatic channels. Reasons for complete or partial refusal of the request must be given. Article 12 required the requested party to surrender the person sought, to the competent authorities of the requesting party, at an acceptable location. Article 13 dealt with temporary surrender, where, for instance, South Africa was also busy with an investigation, or where the person was already serving a sentence in South Africa. Here, the extradition would be postponed until the sentence was served.

Article 14 dealt with surrender of property, to the extent permitted by the requested party.

Article 15 dealt with the rule of speciality. The most important principle was that no offence that was not mentioned in the extradition order, or an offence committed after surrender, could not be tried or sanctioned by the requesting party, unless with approval of the Minister concerned. The circumstances in which surrendering parties consented were set out in sub-article (2).

Article 16 dealt with notification of the results. Article 17 set out the requirements around transit, and Article 18 dealt with the costs. The requested party must meet the cost of any proceedings in its territory but the requesting party must bear the cost incurred in conveying the person whose extradition was granted. Article 19 dealt with consultations, and Article 20 related to the entry into force, and termination, of the treaty.

Treaty for Mutual Legal Assistance
Mr van Heerden took Members through the treaty. Article 1 set out the scope, and noted that the assistance related to criminal matters, which included offences relating to taxation customs duties, foreign exchange control or any other revenue matters. Sub-article (4) spent out what the assistance would include, and (5) noted that it would not apply to extradition, execution of criminal judgments, transfer of prisoners to serve sentences and transfer of proceedings in criminal matters. Article 2 spelt out that this treaty did not affect other obligations of the country. Article 3 required a central authority to be designated. The authorities could communicate through diplomatic channels or directly with each other.

Article 4 set out circumstances for refusal or postponement of assistance. This article also noted that no assistance with legal matters would be granted for matters that were alleged to be political offences, or offences under military law that were not also an offence under criminal law, or where the execution of the request would impair sovereignty, security, public order or other public interests. It would also be refused if there were substantial grounds for believing that the request was made for the purpose of prosecuting or punishing a person by reason of race, sex, religion, nationality, or political opinions. Before refusing a request, the requested party should consult with the requesting party whether assistance might be granted subject to conditions. A refusal must be accompanied with reasons.

Article 5 related to the fact that the request must be in writing, but in urgent cases it could be submitted in "any other form of communication", with a formal request made in writing thereafter. The content of the request was set out in sub-clauses (2) and (3), and additional information could be requested under (4). Sub-article (5) required translation, where necessary.

Article 6 noted that requests for assistance must be executed promptly and in the manner requested by the requesting party, as far as possible. Article 7 related to return of material. Article 8 related to the protection of confidentiality. Article 9 noted that information provided must only be used for the purpose of the request.

Article 10 set out provisions around taking of evidence. Testimony may be taken, and normally a request would be made that certain people should be present during the taking of evidence. Sub-clause (5) dealt with a person claiming that there was a right to decline to give evidence under the laws of the requesting party.

In terms of Article11, the requesting party may call upon the requested party to assist in getting witnesses. Article 12 covered the position for a person in custody being temporarily transferred to Korea, to assist with investigation. Article 13 guaranteed safe conduct for a person requested under articles 11 or 12, and limited the evidence or assistance to that set out in the request. There were two exclusions – namely, if the person brought in to give evidence had been free to leave the requesting party territory, but had not done so within 15 days, and secondly, a provision that a person not consenting to requests could not be subjected to penalty.

Article 14 related to provision of documents, Article 15 to service, and Article 16 to search and seizure. Article 17 dealt with the proceeds of crime located in the jurisdiction of the requested party; the latter must, if so requested, try to find out whether there were proceeds of crime within its jurisdiction. Article 18 dealt with certification and authentication, and Article 19 with expenses. The requested party must meet the cost of executing a request, but the requesting party must bear the expenses associated with conveying any persons to or from the territory of the requested party. If there were expenses of “an extraordinary nature", parties must consult to determine the terms and conditions. Article 20 dealt with consultations and Article 21 with the entry into force and termination. The treaty would come into force thirty days after the parties had notified each other that the requirements were complied with. There was also an article dealing with cancellation.

Discussion
Ms D Schäfer (DA) asked what the remedy was if the death penalty was applied, in contravention of an undertaking not to.

Mr van Heerden said this had never happened. If the undertaking was given, South Africa would extradite, and it was important to be able to rely on the good faith of the requesting party.  This was certainly not something that could be addressed in the treaty; if it did happen, then diplomatic channels would have to address the issue.

Mr J Jeffery (ANC) asked why it had taken so long to bring the treaties to the Committee.

Mr van Heerden noted that his explanation had been given before Mr Jeffery could arrive at the meeting, but repeated the historical background and the options investigated.

Mr Jeffery asked when the Korean government had ratified the treaty.

Mr van Heerden thought that this was in 2010.

The Chairperson noted that there was a quorum.

Members firstly resolved to recommend ratification by the House of the Treaty on Extradition, and then resolved to recommend ratification of the Treaty for Mutual Legal Assistance in Criminal Matters.

Magistrate P Hole: request to lift suspension
The Chairperson tabled a letter from Mr Schoeman, Secretary to the Magistrates Commission, setting out the circumstances of the suspension against Mr P Hole, confirmed earlier by Parliament, and noting that there had been a request from the Minister that Parliament consider the lifting of the suspension.

The background to the matter was set out fully in the document (see attached document). Mr Hole was a Regional Court magistrate in the Northern Cape. He had been handling a number of criminal matters. He had a dispute with the Regional Court President, Mr Nqadala, and allegedly used the Court forum to make various remarks against and ridicule the Regional Court President, who then submitted a complaint to the Magistrates Commission. A preliminary investigation took place on 25 November 2011, Mr Hole was charged with misconduct, and the hearing commenced on 15 October 2012. It was postponed at the request of Mr Hole to 15 April and then again, at his request, to 29 July as he claimed this was the first date on which his advocate was available. He had also indicated his intention to take on review the decision by the Department of Justice and Constitutional Development not to provide him with legal representation at State expense. The Magistrates Commission noted that there were insufficient grounds for a charge of misconduct against Mr Nqadala. It persisted, however, in its view that the charges against Mr Hole were serious and the Commission must charge him with misconduct. In the meantime a civil society group had submitted a notice of motion against the Magistrates Commission that Mr Hole’s suspension be uplifted to allow him to finish his part-heard matters.  The Minister of Justice addressed letters on 24 April 2013 to the Speaker and Chairperson of the Committee, with a recommendation that the provision suspension of Mr Hole be uplifted. The Commission had asked the Department of Justice to oppose the civil society application, as it believed the decision to suspend was properly taken. The Commission was not consulted on the decision by the Minister to approach Parliament and ask for uplifting of the suspension. However, it was indicated that if some of the matters would cause great prejudice to witnesses and complainants, it might be possible to make an arrangement to have Mr Hole recalled, but suggested that an undertaking would then be sought from Mr Hole that he would not use his authority in Court to attack Mr Nqadala, his colleagues and/or the Magistrates Commission.

Mr Jeffery asked what exactly the dispute was about. The briefing from the Minister dated 29 September indicated that there were inquiries by the Chief Magistrate of Kimberley by the social workers about progress on certain cases, on 17 May 2011. The Regional Court President had forwarded copies to Mr Hole and other Magistrates. Mr Hole took objection to the disclosure of the enquiries and started putting matters on the roll. However, Mr Jeffery still did not know what the original dispute was.

Mr Mthunzi Mhaga, Spokesperson, Ministry of Justice, noted that the indications were that Mr Hole had been presiding over a criminal matter. During the proceedings it came to his attention that a letter had been circulated to all presiding officers that the accused appearing before him had other cases of a similar nature and this case should be prioritised. He considered that to be interference with his rank and possible prejudice to the accused, and then requested the Regional Court President to appear before his court and explain the letter. During that hearing, he raised allegations against the Regional Court president, and whether he had the right to tell Mr Hole how to run his court. The Regional Court President had then lodged the complaint with the Magistrates Commission.

Ms Schäfer shared the concerns of the people involved in the sexual offences matters, particularly given the low rates of conviction in these matters. However, she was also concerned that the Magistrates Commission was apparently “left out” of the process, and asked why the Minister had approached Parliament directly without involving the Commission. There were several serious issues, including abuse of power. There was no question about the ongoing dispute between two Magistrates, but for a magistrate to air the dispute in court was inappropriate. There was no guarantee that he would behave if the suspension against Mr Hole was lifted. As sympathetic as she was to lifting the suspension, in the interests of proceeding with the cases, she thought that, at the very least, a full report was needed from the Commission with formal input from it. She knew that the matter was long drawn-out, but pointed out that the postponements were at the request of Mr Hole. Finally, she noted his decision to take the costs issue on review, and thought that he may have a point, if the full costs of Judge Hlophe’s inquiries had been paid by the State.

The Chairperson asked if the reference to section 13(3)(g) of the Magistrate’s Act was correct.

Ms Schäfer pointed out that the procedures had changed since 1993 and the Magistrates Commission was integrally involved.

Adv S Holomisa (ANC) asked what would happen if the presiding officer became unable to perform his duties through another form of incapacity.

Mr Jacob Skosana, Chief Director: Policy, Department of Justice and Constitutional Development, confirmed that normally in this case the matters would have to start afresh.

Mr Mhaga indicated that if there was a conviction already, sentencing proceedings could be conducted by another presiding officer, as was the case with some of Mr Hole's other matters. The majority of cases were part-heard.

Mr Jeffery asked if anyone had spoken to Mr Hole.

Mr Skosana confirmed that nobody from the DOJ&CD had done so.

Mr Jeffery noted that the Research Report had referred to the Public Service Commission report, on the inspection of regional courts in the Northern Cape. The Public Service Commission did not appear to allocate blame, which was interesting. He shared other Members' concerns as to whether Mr Hole would be prepared to return and do the cases. Mr Schoeman referred to consultations with the full Magistrates Commission, and the Chairperson of the Commission held the view that if some of the matters might cause great prejudice Mr Hole could be recalled, against an undertaking that he would not use his authority to attack anyone else in court. It was necessary, in Mr Jeffery's view, to have some interaction or negotiation with Mr Hole. If Parliament lifted the suspension, and he repeated his allegations, it would be a major problem. He was not sure whether Parliament should ask him to come to meet with the Committee. It was not appropriate that the Magistrates Commission deal with him, as it was a party to the litigation. The other option might be for the Department to speak to him. However, that was probably also not a good idea.

Mr Schäfer would be happier if Mr Hole was permitted only to finalise the cases that were part-heard, but was not sure whether Parliament could impose any conditions on the lifting of the suspension, or on his future conduct. She had understood that the suspension could be lifted completely.

Mr Jeffery agreed that it was not possible to set conditions, under the Act. However, the role of Mr Hole would presumably be determined by Mr Nqadala, and he would be able to allocate only part-heard matters to Mr Hole, but that was up to the magistracy. He also shared concerns whether it was competent to try to impose a condition that Mr Hole could act if he did not abuse colleagues, and said that if there was an undertaking sought, it must be obtained in advance.

Mr Skosana responded that the DOJ&CD thought that Parliament could recommend processes to be undertaken by the Regional Court President. How exactly the cases should be dealt with must be sorted out by the judiciary, but a recommendation that the suspension could be uplifted until further advised by the Chief Justice could result in re-scheduling. The matter of judicial management lay with the Chief Justice and it was possible for this person also to act in the place of the Regional Court President, since he was also involved, or assign the Judge President to deal with the matters, ask him to oversee the process, and advise Parliament on progress.

Mr Skosana said that the Department had also discussed whether the Commission should have been consulted on the Minister's approach to Parliament. However, the line usually followed was that the recommendations came from Magistrates Commission to Minister to Parliament, and although the Magistrates Commission had made the initial recommendations, the Minister was the one who addressed Parliament. Whilst it may have been desirable to involve the Commission again, it was not strictly speaking necessary.

Adv L Adams (COPE) thought that Magistrate Hole was abusing the process. It was not clear how many pending cases there were, and what the status of those cases was. She asked for an idea of how long it was likely to take for the cases to be completed, or whether they might be finalised in a matter of days.

Mr Skosana said that DOJ&CD had asked the Magistrates Commission to look at each matter, but the general indication was that the majority of the cases were quite far from completion.

Mr Mhaga added that there were only three matters where the accused had been convicted and were awaiting sentence. The main concern was that in the other matters there were child witnesses, who may need to be recalled, as well as one elderly woman whose memory was fading with time.

Mr Holomisa noted that the main problem was that Mr Nqadala was Mr Hole's senior. He wondered if the part-heard cases included the one in which there was an altercation with Mr Nqadala.

Mr Mhaga added that this was one of the part-heard matters.

Mr Holomisa quipped that Parliament could ask the judiciary to exercise its independent judgment and deal with the matters, but then said, on a more serious note, that he did think it appropriate for the judiciary to deal with the matter, but Parliament should give support.

Mr Jeffery asked for clarity whether there was a suggestion to lift the suspension, or to request input from the Chief Justice first. He questioned why, in the cases where the accused had already been convicted, the matters were not simply referred immediately to another magistrate for sentencing. There was no need why those should remain with Mr Hole. He was also worried that nobody had given consideration to the part-heard cases and whose fault that was. Mr Hole was being paid, so he was not suffering any prejudice. If the suspension was lifted, there was no guarantee that he would not carry on where he left off. Now that the Constitution 17^th Amendment Act was in force, the Committee should get the view of the Chief Justice on the matter, and then also get more detail on the cases. The Minister's letter indicated that there were a number of cases put before Mr Hole that he had objected to, so they may not even have been part-heard. Clearly there was a potential of prejudice. He reiterated that the matters where accused were convicted must be transferred for sentencing; there was no indication where the accused were at the moment, and when they would be transferred, and was horrified that this had not already happened. He would be interested to know if Mr Nqadala was responsible for this oversight.

Mr Jeffery also agreed that more detail was required on the outstanding cases, and an indication of what was the situation with the witnesses who had already testified, and whether they were women and children. The DOJ&CD should be able to obtain these details quite easily and he stressed that this should be obtained within a short space of time as there was little time left to the end of the term. The views from the Chief Justice could be obtained in the meantime, and he should be asked to intervene if he wished. He made the point that the NCOP would also have to consider the matter.

Mr S Swart (ACDP) was concerned that it might take some time to get the information on the cases, but Mr Jeffery countered that the DOJ&CD should simply send someone to do a search.

Mr Swart agreed with the information being requested from the Chief Justice and said that the Magistrates Commission should have been informed on the request to lift the suspension.

Ms C Pilane-Majake (ANC) said that her main concern related to whether this was not setting precedents for the future. However, she suggested the ideas in relation to the Chief Justice and agreed that the Committee must properly investigate.

Mr Mhaga said that when DOJ&CD had consulted with Counsel, it appeared that information had been obtained directly from the Court.

The Chairperson noted that Members were unanimous in their view that the Chief Justice should be approached, for input and further advice to Parliament. The Chief Justice may decide to refer the matter to the relevant Judge President, although Parliament would not suggest that. The other information would be obtained in the meantime.

Mr Swart questioned the Notice of Motion by the civil society group, and said that it might not be appropriate for the Judge President to consider this while litigation was pending. However, the Chief Justice's intervention was distinguishable because it was from a management perspective.

Mr Jeffery suggested that perhaps the applicants in the matter should be asked, perhaps by the State Attorneys, to postpone the matter as the Committee would not want to lift the suspension without being convinced that this would be correct. This was an urgent matter and he would not like to see the application going through unopposed. A response should be requested within the next two weeks, although the matter could be referred to the Chief Justice immediately.

Mr Jeffery thought that the Committee needed to take a formal decision, but noted that since there was no plenary session for the next few weeks, it would be more practical for the Committee to request the Minister to get input from the Chief Justice.

The Chairperson noted concerns about the precedent that this might set, and if other magistrates may seek to take advantage of the process.

Mr Jeffery said that in future, when a magistrate was suspended, the Magistrate Commission must give serious consideration to the part-heard matters. Some matters may need to be re-heard depending on circumstances.

Mr Mhaga said that the interests of justice could demand that the lifting of the suspension be seriously considered, depending on the conduct with which a magistrate had been charged. He doubted that other judicial officers may take advantage of this, as it was limited by special circumstances.

Mr Skosana conceded that the Magistrates Commission needed a full report on the matters and the implications for justice. He noted that Parliament did not have the power to suspend judges, as that lay with the President on the recommendations of the Judicial Service Commission, and it was hoped, at the Department, to align the approach with magistrates, so that administrative matters would be concluded before matters came to Parliament.

Other Committee Business: Mr Thomas
The Chairperson suggested that he should write a letter to the relevant parties in this matter, stating that Mr Thomas could try to approach the High Court for relief but that Parliament could do no more.

Mr Jeffery and Mr Swart agreed. Mr Jeffery said there was nothing else the Committee could do. Mr Swart made the point that Mr Thomas appeared to have used the wrong forum from the start.

Mr Lewis
The Chairperson noted, and other Members agreed, that the Committee had received a letter from Mr Lewis, but believed that no response should be given.

Missing Court Records: Media article, Cape Times
The Chairperson noted that an article had recently appeared in the Cape Times noting that there were several missing court records in district and regional courts, with specific reference to Bredasdorp. He asked for Members’ opinion as to whether he should write to the Director-General of the Department of Justice.

Mr Jeffery said that article concerned a matter in the Western Cape High Court, where the accused was released on the basis that the record for his appeal could not be found. The point was apparently stressed that if the record was found, the charges would be reinstated. He believed that a response was required on this matter.

In relation to the Ntazuma Court, he noted that the DOJ&CD had highlighted that this court had superb facilities, yet it was apparently not being occupied. Mr Jeffery was not sure if this was a Department of Public Works problem, but it resulted in nearby courts being over-stretched. A response was also needed on this.

Other Members questioned the nature of the problem, and Mr Jeffery responded that the Committee needed to find that out.

Ms Smuts said that the missing records - especially in other provinces – had been a known risk, and it was also recognized that if records were missing, the accused could not go on appeal and would have to be acquitted. The Wits Justice Project was assisting some inmates in correctional centres to get records. The Regional Representative, Mr Mohamed, had said that the problem was under control in this province, but she was sure that it was greater elsewhere, particularly in Gauteng, where problems had been found with the South Gauteng courts. She believed that a response was needed from the Director General on the scale and scope of the problem, overall.

Members agreed that, rather than approaching the Western Cape regional representative, a letter be written to the Director General calling for urgent responses.

Public Protector issues
Mr Jeffery said he remained concerned about one matter in relation to the Public Protector, namely the complaint by Legal Aid South Africa that it had not been notified of the Public Protector investigations, and the Public Protector’s assertion that indeed notification had been given. Mr Jeffery suggested that a written response be obtained from the public protector on who exactly at Legal Aid had been notified. :

Mr Jeffery also referred to an article that morning in the Cape Times relating to the recent strategic plan and budget hearings. The Public Protector had given an interview, in which she had noted, amongst others, that the meeting was supposed to discuss the strategic plan but “before we knew it, it was about me and my deputy”. She had challenged the Chairperson and said “it is sad” that the Chairperson had made some remarks, although she was not disputing the oversight role of Parliament.

Ms Smuts suggested that Members needed to carefully read and consider the article. She thought that the Public Protector should be asked to confirm or reject the statements printed.

Mr Jeffery noted that section 9(2) of the Public Protector Act dealt with contempt of the Public Protector and interference with the conducting of proceedings, but it also noted that nothing contained in this Act shall prohibit the discussion, in Parliament, of a matter being investigated by the Public Protector.

The Chairperson suggested that this be drawn to the attention of Adv Paul Hoffman and Mr Naidoo. It was clear that Parliament was entitled even to deal with ongoing or existing investigations.

Mr Holomisa asked if the reporter from the Cape Times had approached the Chairperson, and he in turn confirmed that he was not approached.

Ms Smuts reiterated that at this point the Public Protector should be asked for comment as to whether the report was correct.

Mr J Sibanyoni (ANC) noted that the Public Protector herself had referred the matter with her deputy to the Speaker and thought it had snowballed through media interest.

The Chairperson said, with hindsight, that he had not been happy with the meeting, but he had allowed the discussions.

Meeting with Sudanese delegation
Members agreed, in principle, to agree to a meeting with the delegation from Sudan, but stressed that this would have to be outside the normal meeting times, in view of the strictures already on time, and the heavy legislative programme.

The meeting was adjourned.