Institution of Legal Proceedings Bill; Cross Border Insolvency Bill;

NCOP Security and Justice

30 October 2000
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Meeting Summary

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Meeting report

INSTITUTION OF LEGAL PROCEEDINGS BILL; CROSS-BORDER INSOLVENCY BILL; USA & AUSTRALIA EXTRADITION TREATIES; MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS TREATY

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
30 October 2000
INSTITUTION OF LEGAL PROCEEDINGS BILL; CROSS-BORDER INSOLVENCY BILL; USA & AUSTRALIA EXTRADITION TREATIES; MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS TREATY

Documents handed out
Extradition Treaty between RSA and USA
Extradition Treaty between RSA and Australia
Mutual Legal Assistance in Criminal Matters Treaty between RSA and USA
[email [email protected] if these documents are required]

SUMMARY
The Committee and the Minister are in agreement about delaying the passing of the Institution of Legal Proceedings Bill until next year. This is to give the Department time to fully consider concerns raised by the South African Revenue Service about certain clauses in this Bill.

The committee will vote on the Cross-border Insolvency Bill on 1 November as they have asked the Department to draft options to a particular clause in the Bill.

The Committee ratified the extradition treaty between the RSA and the Australian government. They were also briefed on the Mutual Legal Assistance in Criminal Matters Treaty and the Extradition Treaty between RSA and USA. These will be ratified the following day.

MINUTES
Institution of Legal Proceedings Bill
The committee decided to delay passing the Institution of Legal Proceedings Bill until next year. This is because SARS has noted concern about certain clauses in this Bill and has requested certain amendments. The Chairperson said that in discussions with the Chairperson of the Portfolio Committee and SARS officials, they had all agreed that they should delay passing this Bill so that SARS concerns can be investigated properly. The reasoning is that no damage will be caused if the Bill is not passed immediately because there are mechanisms in place to deal with issues which may arise before the Bill is passed.

Mr Labuschagne from the Department said they would investigate the concerns raised by SARS thoroughly. The Department recommends that the Bill be delayed as does the Minister.

Cross-border Insolvency Bill
The Chairperson said that there were no serious objections to passing this Bill.

Mr Labuschagne referred to the amendment which the Select Committee had proposed in respect of Clause 2(3): that the clause include criteria for the Minister. The Department and the State Law Advisors had considered the suggestion and felt that the suggested amendment was not necessary. If they list criteria then a situation may arise which the criteria do not cover as they are too narrow. If they include a general clause to cover this problem, then there is no point in listing restrictive criteria because the general clause removes its usefulness. Further, the clause as it stands contains a built-in safety guard. The Department recommends that they leave this clause as it is.

Mr Lever (DP) said that he would prefer to have the criteria neatly set out but he would not force the issue.

In the same clause, Mr Labuschagne referred to the committee's second proposed amendment dealing with proceedings which have been instituted prior to the withdrawal of a state as a "designated state". The Department had examined the proposal and does not think it is necessary. Mr Labuschagne said that the courts would interpret what the best interests of the creditor and the debtor were on a case- to-case basis. It was not necessary to regulate pending proceedings.

Mr Lever said that he disagreed. If the designated status of a state is revoked while proceedings are pending then that could prejudice certain parties. These people could not be left ''in limbo''. Courts are obliged to enforce the domestic law if the domestic law says that a state is not a designated state anymore.

Mr Labuschagne said that the Department only had to advise the Committee and not convince the Committee of one view or the other. If the committee feels strongly about the point then they can draft something. However the Department and the State Law Advisors feel that such requirements are not necessary, especially since the Minister would not lightly withdraw the status of a country.

Mr Lever accepted that the situation he was trying to cover would not be a common occurrence - it would be the exception rather than the rule. However it must be catered for so that people overseas (the people SA wants to promote trade relations with) have certainty as to their position.

The Chairperson said that they would revisit this issue. He asked the Department to draft this proposal as an option for the committee to look at and the committee would vote on the Bill the next day.

Mr Lever asked if there was a pressing need to complete processing this Bill.

Mr Labuschagne replied that SA would be one of the first countries to have adopted a law like this. Apart from this there was no pressing need to pass the Bill now. He noted that the Department feared that in trying to draft something hastily to cover this situation they may end up mistakenly creating a loophole of a different kind. This could simply create more problems. For this reason they would prefer that the committee request the Department to investigate the matter.

The committee, however, said that they would vote on the Bill the following morning.

Treaties
The Chairperson raised the issue regarding the effect the precedents of the African Court on Human Rights would have on the Constitutional Court of SA - would SA be bound to follow their decisions as precedents? He said that the Select Committee will meet with the National Assembly committee to deliberate on this issue.

Mr Allers from the Department briefly took the committee through the following three treaties.

Extradition treaty between the RSA and Australia
The SA Extradition Act provides the legal framework for SA entering into extradition treaties. Such treaties must be ratified by Parliament. This is a standard treaty. Some of the clauses in the treaty are:
Articles 2 and 3 - this sets out the extraditable offences. Extradition is not allowed for political offences.
Articles 4, 5, 6, and 7 - these deal with administrative issues such as the postponement of extradition.
Article 8 - provisional arrest
Article 9 - conflicting requests
Article 10 - surrender
Article 11 - surrender of property
Article 13 - surrender to a third state
Article 15 - expenses

The Department recommended that the treaty be ratified. The National Assembly had already considered this treaty and approved it. The committee had no questions and they ratified the treaty.

Extradition treaty between RSA and the USA
The National Assembly must still consider this. On 10 September 1999 the President had approved Minister Maduna signing this treaty along with Ms Janet Reno (the attorney-general for the USA). This is also a standard treaty. Some of the clauses are:
Article 1 - obligation to extradite
Article 2 - extraditable offences
Article 4 - extradition is not allowed for military and political offences
Article 5 - if the requesting state will institute capital punishment against the person and the requested state does not use capital punishment then the requested state can refuse extradition unless it is assured that the death penalty will not be carried out against the person.

The State Law Advisors and the Foreign Affairs international advisors are happy with this treaty.

Mr Matthee (NNP) said that he would like a chance to go through the treaty before agreeing to ratify it. The Committee agreed to deal with the treaty the following day.

Mr Matthee noted that all the treaties referred to criminal offences. He asked if there was any reference to civil offences. Mr Allers replied that the treaties made no reference to civil offences.

Mutual Legal Assistance in Criminal Matters Treaty between RSA and USA
The National Assembly has not considered this treaty yet.
Some of the clauses the treaty provides for are:
Article 1 - the scope of assistance is mutual in respect of investigation. It relates to things such as taking testimony of persons, providing documents relevant to the investigation, and so on.
Article 2 - central authorities. In USA this is the Attorney-General and in SA it is the Director General of Justice.
Article 3 - limitations on assistance (for example, if the request is for a political offence or a military law offence).
Article 4 - the form and content of the request (administrative provision)
Article 5 - execution of request
Article 6 - certification of documents
Article 7 - costs
Article 8 - limitations on use
Article 9 - testimony or evidence in the requested state

The difference between the two treaties is that the former treaty is an extradition treaty and the latter treaty deals with provision of assistance in criminal matters. The two treaties are different but they go hand in hand with each other.

The Chairperson asked if a state would provide assistance if the other country could impose a death penalty on the person in question.

Mr Allis replied that this treaty is used to get information to see if it is necessary to extradite the person.

Mr Matthee said that the requested state will have to render assistance but can refuse to extradite the person.

The Chairperson asked if SA would use the time and the resources to give assistance when they do not think that they will extradite the person.

Mr Matthee said that without the assistance they cannot tell if there will be a prosecution.

Mr Allers said that the Department would consider this.

The Chairperson said that the committee would go through the other treaties the following day. The meeting was adjourned.

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