Extradition & Mutual Legal Assistance treaties with Korea: Departmental briefing; Domestic Violence Act implementation: Civilian Secretariat for Police report

Meeting report

Extradition Treaty and Treaty for Mutual Legal Assistance Korea Department of Justice and Constitutional Development briefing
Mr Herman van Heerden, Director: Legal Requests, Department of Justice and Constitutional Development, presented the Extradition Treaty between the Republic of South Africa and the Republic of (South) Korea, tabled in terms of section 231(2) of the Constitution of 1996, and the Treaty on Mutual Legal Assistance in Criminal Matters with the Republic of Korea, tabled in terms of section 231(2) of the Constitution of 1996. The purpose of the presentation was to provide background to both documents, and to seek Parliament’s approval to ratify the treaties.

Mr van Heerden noted that both of the treaties were based on the United Nations (UN) model. The Treaty on Mutual Legal Assistance sought to provide for effective cooperation between the two countries in the prevention and suppression of crime. The Extradition Treaty sought to facilitate relations between the two countries in the area of extradition of offenders. The treaties encompassed a number of articles that outlined what the countries would agree.

Mr van Heerden highlighted some of the articles in the extradition treaty, as follows:
-Article 1:‘Obligation to Extradite’ stated that each party agreed to extradite with the other, upon request and subject to the provisions of this treaty.
-Article 2: ‘Extraditable Offences’ defined extraditable offences as those offences which, at the time of request, were punishable under the laws of both parties
-Article 3: ‘Mandatory Grounds for Refusal’ stated that extradition would not be granted under the treaty if the requested party determined that the offence for which extradition was requested was a political offence or an offence connected with a political offence
-Article 4: ‘Discretionary Grounds for Refusal’ stated that extradition could be refused if the offence carried the death penalty under the law of the requesting party
-Article 5: ‘Extradition of Nationals’ stated that neither of the parties would be able to extradite its own nationals under this treaty but the requested party would have the power to extradite such persons, if, in its jurisdiction, it was deemed proper to do so.
-Article 10: ‘Concurrent Requests’ stated that where requests were received from two or more States, including the other party, for the extradition of the same person either for the same offence or for different offences, the requested party would determine to which of those States the person was to be extradited and would notify those states of its decision
-Article 15 dealt with the rule of speciality. The most important principle was that an 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 20: ‘Entry into Force and Termination’ stated that the treaty would enter into force 30 days after the date on which the parties had notified each other in writing that their respective requirements for the entry into force of said treaty had been complied with.

Discussion
Mr L Nzimande (ANC, KwaZulu Natal) requested clarification on Article 5 of the treaty, and stated that he did not find it fair that the treaty approved the extradition of South African nationals to requested parties but South Africa lacked the ability to extradite other nationals. He requested clarification on which Korea was being discussed. He asked whether the Mutual Legal Assistance treaty catered for a support regime for South African nationals being extradited to defend themselves, or whether it was being assumed that they had the capacity to afford legal support outside South Africa.

Mr van Heerden clarified that both treaties were entered into with South Korea. He stressed that neither South African nationals nor foreign nationals would be extradited to any country where the death penalty was upheld, unless a written agreement was drafted between both countries stating that the death penalty would not be imposed or, if imposed, that it would not be carried out. He stated that the neighbouring country of Botswana still upheld the death penalty, and that currently three of its nationals facing the death penalty were residing in South Africa. He said South Africa would have the jurisdiction to prosecute extradited persons in the country, but issues relating to the transference of cross border witnesses would need to be addressed. He agreed with Mr Nzimande that there was a need to examine the question of the death penalty very carefully, and assured him that South Africa would not extradite any person to a country where the death penalty was being upheld.

Mr Nzimande requested clarity as to whether a South African national could be extradited to a country without defence or support.

Mr van Heerden clarified that South African law upheld a specific procedure stating that persons found extraditable would receive all their Constitutional guarantees, including the right to a proper trial and everything else applicable, and that if South Africa extradited an individual, the same principles would be upheld. He reminded Members that no individual could be extradited unless the offence for which the extradition was sought was also an offence in South Africa. If a request of extradition was received, the first requirement was to check whether the offence was considered as such by both parties.

Members also asked why certain persons were able to bypass the extradition process, and why the process took such a long time.

Mr van Heerden said certain criminals had the ability to defend themselves at length, and many also tended to make an appeal to the international courts for Human Rights. If a person was found capable of extradition, there was provision for an appeal within 40 days. The Department of Justice and Constitutional Development (the Department) was trying to streamline the procedure.

Mr Nzimande proposed the ratification of both treaties, and asked whether further streamlining was already in the Parliamentary process.

Mr van Heerden stated that a bill on extradition had been finalised but would not be on this year’s Parliamentary programme, only presented in the following year.

The Chairperson stated that the treaties could not be ratified due to the absence of five members

Other Members suggested that since five provinces out of the nine were represented, there was a quorum to ratify. One Member clarified that in the case of extraditions, a majority of permanent members was required rather than the usual quorum based on the number of provinces. However, he also noted that another Committee Member was on his way, and suggested that the matter stand over until he arrived.

When no other Members had arrived by the time the meeting ended, the Chairperson noted that the formal adoption of the motion to ratify would be taken in the following week.

Domestic Violence Act: Implementation challenges: Civilian Secretariat for Police (CSP) briefing
Ms Millicent Kewuti, Chief Director: Monitoring and Evaluation, Civilian Secretariat of Police, introduced the other presenters, and apologised on behalf of the Civilian Secretariat for Police, who was unable to attend the meeting.

Ms Ayanda Xongwana, Deputy Director, Civilian Secretariat for Police, stated that the  Domestic Violence Act No 116 of 1998 (DVA) was promulgated in 1999 in an attempt to provide victims with an accessible legal tool to stop domestic abuse. Though the Act was far reaching in its definition of what constituted as an act of domestic violence and domestic relationships, its implementation had been negatively affected by numerous challenges.

The non-compliance challenges identified in the DVA dealt with the poor or incorrect completion of SAPS Form 508a (a form used to record all incidents of domestic violence and responses by members) and SAPS 508b (domestic violence register). Elements of the DVA incidents were sometimes recorded differently in the DV register and on the SAPS 508a form, even though the incidents were the same. The non-compliance register or form (SAPS 508), on which the Station Commander should be recording complaints against members for failing to comply with the DVA, were non-existent in almost all the stations visited, and stations either did not have at all, or did not manage well their Victim Friendly Rooms.

Some recommendations were outlined to address these challenges. It was suggested that the DVA Register form (SAPS 508b) needed to be reviewed and updated. There should be additional columns for updating information, to ensure that there was no breakdown of communication during shift changes and also between detectives when there was a need to follow up on cases. The SAPS 508a form also needed be redesigned into a checklist format, so that a SAPS member would check if s/he had followed all the proper procedures in assisting the victim of domestic violence. The non-compliance form (SAPS 508) needed to be re-issued to all stations, and should also be updated to substitute the name of “Independent Complaints Directorate” (ICD), who had formerly handled these matters, with a reference to the CSP. Management of Victim Friendly Rooms (VFR) needed to be strengthened, and South African Police Service (SAPS) needed to develop a volunteer management policy which would cover screening and management of volunteers at the station.

Ms Xongwana stated that the recording of domestic violence cases were problematic, due to a DVA contravention not being interpreted as a criminal offence by itself. This posed as a challenge, as it became difficult to assess how many arrests were made as a result of the contravention of a Protection Order. The system also failed to capture DVA incidents reported as they appeared in the register. There was a need also to have a standard system of how cases were handled if SAPS members were recognised as the perpetrators of domestic violence.

The recommendations proposed that the Crime Administration System (CAS) required re-evaluation so as to recognise DVA as a criminal offence not attached to other crimes, the system ought to be able to capture incidents reported so as to make it easy to draw comparisons between incidents reported, cases opened, arrests made and cases withdrawn. All cases which involved SAPS members as perpetrators should be referred to the Provincial Inspectorate for investigation. Reports should be forwarded to the CSP, to monitor progress, and a protocol with regard to time frames of those cases was needed, as the time taken had implications on members’ ability to perform their duties.

The Civilian Secretariat of Police had further noted that out of the 145 stations visited, less than half of the members (4 380) had been trained on DVA, according to the records, and even where there had been improvement in the number of members trained, this did not translate into improved implementation.

The key areas outlined in which it was apparent that knowledge was lacking included:
-Form 1 (notice which explained remedies available to the complainant) – members generally lacked an understanding of the purpose this form served
-there was a lack of practical scenarios presented during training which would allow members to identify with what happened outside the classroom
-Participants reported that training methodologies predominantly consisted of lecture-style presentations, rather than taking the form of group work and being based on practical examples.

The Department found that 72% of the stations visited experienced high numbers of withdrawal of cases by complainants, and such withdrawals tended to be linked to the socio-economic status of the country. The command and control of the DVA was found to be lax. Most station commanders did not adhere to their responsibilities in implementing the DVA.

The recommendations to address these challenges were outlined. It was proposed that the CSP should conduct a joint visit, with the SAPS, to some of the basic training institutions in order to observe the methodology of training and make informed recommendations. Station commanders should be placed under an obligation to discuss DVA as a standing item during station lectures, and to hone in on the areas  identified by the Commanders as needing attention. Form 1 needed to be simplified, with user friendly language, and less legal jargon, giving a space for a signature by the complainant and the issuing SAPS member. There should be an evaluation of the DVA training and an impact assessment study conducted by the SAPS jointly with the CSP. Stringent measures on withdrawal of cases should be included on DVA and National Instructions. The SAPS and the CSP needed to engage with civil society and academia t explore various ways of policing domestic violence, taking into consideration social and economic factors of the country.

The legislative gaps identified as part of the DVA implementation challenge included poor coordination and cooperation among all the role players that dealt with domestic violence. The provision of shelters, counselling services and places of safety fell within the mandate of Department of Social Development. However, there was a lack of psycho social services, especially in rural areas, which made it difficult for both SAPS and the Courts to refer complainants. The DVA stated that a complainant could apply for a protection order at any time, but in practice this was not happening as the courts only operated during working hours. The management of protection orders between court and the police stations was also a challenge. It was observed during oversight visits that some of the mistakes in the completion of registers were as a result of conflicting information given by different oversight structures that visited the stations (including SAPS).

The recommendations outlined for change in this area included that the DVA should set out an enforceable multilateral agreement between all the government departments who contributed to the implementation of the DVA. The DVA should have provisions that obliged all the relevant departments to report on their implementation of the DVA annually. The CSP needed to coordinate a workshop on DVA interpretation for all SAPS oversight bodies so that a common and standardised understanding of DVA could be developed.

Ms Xongwana stated that in CSP’s plans to strengthen oversight, there needed to be a broad policing policy that was inclusive of community members, faith based organisations and any other community based organisation. A visit to the basic training colleges was needed in order to observe training methodologies and be able to formulate further recommendations. Finally, public awareness campaigns were needed to cover the areas of marketing of the Secretariat’s role in monitoring DVA, and educating communities on DVA.

Discussion
Mr Nzimande stated that there were critical issues related to the inadequacies of training. He wanted more clarity on whether anything was being done at the moment to build on the recommendations that certain responsibilities should be taken by certain departments. He noted that disability was a serious issues, and although the CSP had mentioned “user-friendly forms” he wondered if, for instance, these would be in braille for blind users, and whether the CSP was also taking sufficient account of other disability. He asked which members were involved with the DVA and asked what was incorporated into the National Instructions.

Mr B Nesi (ANC, Eastern Cape) stated that he heard about all the problems but not the solutions. He was worried about the number of cases withdrawn, and asked how well the people dealing with DVA cases were trained. He wondered if the CSP would ensure that those from SAPS dealing with DVA cases were properly trained to understand all the implications of domestic violence, and asked what, specifically, the SCP was envisaging in adding to the training to cut down on the numbers of withdrawals.

Ms Kewuti clarified that CSP was aware of issues of disability. However, she clarified also the mandate of the CSP, which was essentially an oversight body. It tried to ensure that when it looked at issues and did evaluations, the appropriate recommendations were made to SAPS, who must implement them. She asserted that the mandate of the CSP only currently allowed it to make recommendations, which was done, in practice, by presenting the results of its findings to the Minister, after which they would be forwarded to SAPS.

Unfortunately the CSP had not received much feedback on the implementation of its recommendations, and as a result it had set up a forum to address the recommendations coming from oversight bodies to ensure progress in implementation. This area needed to be strengthened.

The CSP could not formally, itself, deal with any SAPS members who were themselves perpetrators of domestic violence. Proceedings under the DVA Act were conducted internally and CSP, as an oversight structure, lacked the ability to interfere in such matters. She added that the lack of Victim Friendly Rooms was a reality in some police stations due to the lack of space, and also due to the lack of communication between the SAPS and Department of Public Works (who was responsible for building), and this was something that needed to be strengthened. She clarified that the National Instructions were clear. Although many SAPS members had gone through the training, there was a culture of silence and protecting their own within SAPS, and when questioned about the Act, many officers claimed to have no knowledge of what the Act entailed. She stated that the CSP was not seeing training translate into action, and this was why it needed to go out for itself and observe the delivery methods. She also added that domestic violence was also a socio economic problem and the officers appointed to address such an issue needed to be sensitive to understand the socio economic situation of the complainant.

Mr L Nzimande requested more clarification. He asked why offences by SAPS members were treated internally. He asked whether there was work being done at the police station level in addressing the needs of disabled persons.

Ms Kewuti stated that it would be useful if, during the next meeting, a SAPS member could be present. She clarified that with in regard to disability issues, SAPS, when designing questionnaires, would work with civil society reference groups, but admitted that this was an area that needed more attention.

Ms Xongwana stated that SAPS had tried to implement Victim Friendly Rooms in its facilities but its main challenges lay in the management of those facilities. Certain stations used VFRs as office space instead of private interviewing spaces, due to space constraints. She reiterated the need for interdepartmental collaboration and the education of communities as to what their alternatives were. Rather than domestic violence victims calling for the arrest of their partners as their only mode of protection, they could apply for a protection order, or a request to be moved until their particular issue had been solved. She mentioned that there also needed to be an enhancement of the psycho social services within communities, and the active engagement of the Department of Social Department to look into training.

Mr Nesi stated that although many families had protection orders, the orders did not work. He agreed that domestic violence was a social issue, but that it needed to be dealt with in another way, and said that the CSP and SAPS needed to really focus on addressing the issue thoroughly. He asked where the Independent Police Investigative Directorate (IPID) was based, whether it existed only at national level or also at the provinces and, if the latter, what it was doing at provincial level.

Ms Kewuti clarified that the CSP was an independent body that worked with provinces through their provincial Departments of Community Safety. It was in the process of becoming established as an fully independent stand-alone department, from April 2014. The CSP presently ran projects in conjunction with the provincial departments, and that when it undertook provincial projects, it did so in conjunction with the provinces, and all its work was summarised in reports presented to provincial heads and national Ministerial levels. At this stage the CSP had at a footprint at the provincial level, which was in the process of becoming finalised.

Mr Nesi asked if the Departments of Community Safety were located in the provinces, and whether they were effectively the same as the Department of Police.

Ms Xongwana clarified that the provincial Department of Community Safety oversaw what the police did. Only in Western Cape and Gauteng did they actually go by this name. In other provinces, they could be aligned to other departments, such as Departments of Transport; Housing; Works or Energy. In general, though, these units would be responsible for monitoring the SAPS.

Mr A Matila (ANC, Gauteng) stated that because those in the Civilian Secretariat were not trained as police it would be difficult for them to monitor the police.

Ms Kewuti stated that the CSP had found that SAPS officers feared being found non-compliant in the implementation of the DVA, and tended to withdraw, and those that had been trained had not been showing up. In addition, she also said the role of the Health and Wellness Programme within the organisation was not playing an effective role in addressing some of the problems. The CSP could not do very much to enforce issues within SAPS, because of its civilian status. She reiterated that the mandate of CSP was to ensure that SAPS did its job. She wished CSP had more “clout” in implementing its recommendations.

A Member asked the CSP how it was able to differentiate between true and false information that it might receive, from either males or females who were trying to use the system to benefit themselves. In the case of a SAPS officer providing false information, it was asked whether anything in the legislation allowed for information to be solicited from the commander. Finally, a question was asked about the level of training within the CSP, and what its staff were trained in.

An official from CSP responded that it was already able and empowered to retrieve information from the stations, and would meet with stations on a quarterly basis in order to discuss findings. CSP, as an organisation exercising oversight, needed specific skills, and where it was lacking in such skills partnerships would be formed with civil society to ensure that it was assisted by a variety of individuals with skills from different backgrounds.

The meeting was adjourned.