The Committee was briefed by the Department of Justice and Constitutional Development (DOJ) on the Extradition Treaty with the United Arab Emirates (UAE) and the Mutual Legal Assistance in Criminal Matters Treaty.
Members asked why there had been such a long delay in signing the treaty with the UAE, as the first round of negotiations had started back in 2010. They wanted to know whether it could be applied retrospectively, and why there had been no successful extradition of members of the Gupta family, who had been implicated in corruption.
The Committee unanimously adopted both treaties. It also adopted its report on the Cybercrimes Bill, with two Members reserving their votes.
The Chairperson said that a media statement would be issued, calling for written submissions on the State Liability Amendment Bill.
Extradition treaty with United Arab Emirates (UAE)
Mr Herman van Heerden, Chief Director: International Legal Relations, Department of Justice (DOJ), said that one of the functions of the Department was to negotiate treaties where it was necessary. The first round of negotiations with the UAE had taken place from 1 to 5 February 2010 in South Africa, and the second round from 23 to 26 May 2013 in Dubai. The treaty had then been submitted to the Office of the Principal State Law Advisor, and minor amendments were made. The UAE had approved all the additional amendments. The President of South Africa had then authorised the Minister of Justice and Correctional Services to sign the treaty on behalf of the government. The Minister had signed it on 25 September 2018.
Mr Van Heerden concluded by reading each article in the extradition treaty.
The Chairperson asked the Department to explain Article 2.
Mr S Swart (ACDP) asked why the treaty had taken so long, since it had been negotiated since 2010. He said that in 2016, the double taxation agreement had been signed and there could have been a quicker process at that stage. The Guptas were in the UAE and he was concerned that the double taxation agreement benefited members of the UAE. Once the treaty was approved, would it be able to be applied retrospectively to the Guptas? What were the implications of the existing agreement in terms of the United Nations Convention Against Corruption (UNCAC)? Both the UAE and SA were signatories to it, and it contained specific rules on extraditing those accused of corruption. The fact that the treaty had taken so long was a matter of national interest.
Mr T Mulaudzi (EFF) asked the Deputy Minister why there had been a delay in tabling the matter in the National Assembly. SA had financial problems because of the Guptas. Why was the Department moving at a snail’s pace in order to comply with section 231(2) and (4) of the Constitution and Article 44 of the UNCAC?
Adv G Breytenbach (DA) asked whether there had been any successful extraditions from the UAE based on existing agreements and prior to any formal treaty.
Mr Van Heerden replied that the Department had not received or submitted any requests for extradition to the UAE. On the issue of delay, he said that the Department had consulted with the Department of International Relations and Cooperation (DIRCO) to follow up on their meetings with the UAE Embassy. The Department had requested updates on each meeting that DIRCO had with the Embassy. The new ambassador to the UAE had had a meeting with the Minister and they had indicated that they were ready to proceed with signing the treaty. The Department had tried their best to ensure that the treaty would be finalised and signed as soon as possible. There had not been a delay because the Department had had to make a submission to the Minister. He added that all crimes committed prior to the agreement were covered by the treaty.
Mr Johb Jeffery, Deputy Minister: DOJ, said that the treaty was signed on the 25 September 2018 and had then been tabled to the National Assembly. The Minister had told him there were minor amendments to be made, and this had to be factored in.
Mr Swart said he had indicated in 2016 that this matter was urgent, at the same time that the double taxation agreement was being signed. He did not understand or accept the explanation for the delay. The Committee had been told by DIRCO that there were only one or two minor issues outstanding, but now it was another two and a half years later, and this delay was unacceptable. It was clear to him that the treaty had been consciously delayed under the previous administration.
The Deputy Minister replied that it took two countries to make a treaty and that delays could be on either side. He added that extradition was possible without an extradition treaty.
Adv Breytenbach asked why no application had been made in terms of the existing extradition treaties, and why their application had been sent back.
Mr Van Heerden replied that she was referring to the Mutual Legal Assistance Treaty, which he would be coming to in the second presentation. There had to be an investigation by the police and a request from the National Prosecuting Authority (NPA), and her question had to be directed towards them.
Adv Breytenbach asked if he was suggesting that until now the NPA had not made an application.
Mr Jeffery replied that he was not aware that any applications had been made. He asked whether she was referring to the Extradition Treaty or the Mutual Legal Assistance Treaty?
Adv Breytenbach replied that she was referring to both of them.
The Deputy Minister replied that the Chairperson had agreed to park the question until the second presentation.
Adv Breytenbach asked him not to bore her.
The Deputy Minister said that he had a problem with her saying that he was boring, and asked the Chairperson to remind her where she was and to behave like an “Honourable Member.”
The Chairperson asked Members to respect the meeting and abide by the rules. She said that it was important to have robust engagement, but the rules must also be taken into account. She asked the Department whether they were finished with the first presentation.
The Deputy Minister noted that Mr Van Heerden had not replied to the question on Article 2.
Mr Van Heerden explained that some countries either had, or did not have, a distinction between the Department and the Ministry. The UAE had nominated its Ministry of Justice. SA had nominated the Director-General (DG). The UAE know exactly who the request must be sent to, and so did South Africa.
Mr Swart said that he understood that there were two parties involved, but two and a half years later seemed like a conscious delay, given the state capture at the time. The investigations by the police and the prosecuting authority had been delayed, and now the treaty had suddenly all come together. The Department could say it had been the UAE that had caused the delay, but he thought the delay was on South Africa’s side.
Mutual Legal Assistance in Criminal Matters Treaty
Mr Van Heerden read each article of the Mutual Legal Assistance in Criminal Matters Treaty, after which the Chairperson asked Members of the Committee to raise questions. She said that Adv Breytenbach’s question should be answered first.
Mr Swart said his question was in line with Adv Breytenbach’s issue on an application not being made by the NPA. A request had been sent to the UAE and then sent back because it was not drafted according to UAE protocols. He asked for clarity on this. Even though some questions had to be raised with the NPA, the applications went through the office of the Department.
Mr Mulaudzi said that he understood that SA had a Mutual Legal Assistance Treaty in criminal matters with nine countries. He asked whether the UAE was one of those countries.
Mr Van Heerden responded that the Office of International Legal Relations was the arms and legs of the DG, who remained the central authority. He said that outgoing requests in terms of section 22 of the International Cooperation in Criminal Matters Act were channeled through the office. A submission would then be made to the DG to approve that the request be sent to DIRCO. Requests were submitted for various countries with regards to state capture, one of which was the UAE, and the DG signed a letter to the DG of DIRCO requesting him to inform ambassadors of the country concerned that when they received the request, they must go in person to the Foreign Minister of that country and indicate the urgency of the request. They did not foresee any problems executing the request. He was aware of a meeting taking place with the NPA and the Hawks in Abu Dhabi on how the request should be executed, but he did not know the outcome of the meeting. He was unaware of the request being returned and the reasons for it being returned. SA had concluded a number of Mutual Legal Assistance agreements with China, India, Canada, the USA and France.
Mr Swart said he intended to stay for the meeting so that there was a quorum to vote on it, so he asked that it be finalised as quickly as possible. He was trying to understand the delay. The application goes through the Department’s office to the UAE and it comes back if there is a delay or rejection. Would Mr Van Heerden’s office know of this delay? The Department had indicated that there would be a meeting with the NPA and Hawks. When was this meeting and where did it take place?
Mr Van Heerden replied that all requests were submitted through diplomatic channels. He explained that the Department received the requests from the NPA, but unfortunately there were a few other people the request had to go through before it reached the Department’s office. He did not know the exact dates of the meeting, but it had probably been three weeks ago and had involved a prosecutor from the NPA and investigating officers from the Hawks.
The Deputy Minister said that he had spoken to the National Director of Public Prosecutions informally, and that it was something that should be taken up with them. There had been some problems with translations from Arabic into English. There had not been a formal return of the request as of yet.
Adoption of Treaties
The Chairperson asked if there were any movers to adopt the UAE Extradition Treaty.
Mr Swart said that he moved to accept.
Mr G Skosana (ANC) seconded.
The Members unanimously adopted the UAE Extradition Treaty.
The Chairperson asked if there were any movers to adopt the Mutual Legal Assistance Treaty.
Mr Swart said he moved to accept.
Mr Mulaudzi seconded.
The Members unanimously adopted the Mutual Legal Assistance Treaty.
Cybercrimes and Cybersecurity Bill: Committee Report
The Deputy Minister said that the Committee had already adopted the Cybercrimes and Cybersecurity Bill, and it was just the report which was outstanding.
The Chairperson said there was only one paragraph in the document which had to change, where it had to read “the Committee,” and not “the National Assembly.”
The Deputy Minister suggested that the Committee had already voted on it.
The Chairperson agreed, and said that it had to be put on record.
She asked the Members to move on to the draft programme, as discussed last week.
The Deputy Minister replied that the Committee wanted the one-page report to be adopted.
The Chairperson said that it would be done immediately.
She then addressed Mr Swart and said that the Deputy Minister was waiting for the Chairperson of the Portfolio Committee on Public Enterprises. The Members had two documents before them -- the report on the Cybercrimes Bill and the Committee’s draft programme -- and Members should consider the report and then move its adoption.
Mr Skosana said that he moved the adoption of the Committee report on the Bill.
Mr L Mpumlwana (ANC) seconded.
Seven Members voted to adopt the Bill. Mr Swart said that his vote was reserved, as did Adv Breytenbach, who said her vote was reserved because she had to report back to her caucus.
The Chairperson asked members to finalise the Committee’s draft programme. She said that the Traditional Courts Bill report was outstanding.
Adv Breytenbach said that she and Mr W Horn (DA) had to leave to catch a plane, and asked for them to be excused from the meeting.
Mr Swart said he suggested the finalisation of the State Liability Amendment Bill be deleted from the date on the draft programme, because the Committee would have a joint meeting with the Department of Health (DOH), and further consideration was needed before it could be finalised.
The Chairperson said she agreed, and that the Committee would require further written submissions.
Mr Swart asked if a media statement should be issued about it. He also asked for an indication of when the Committee would meet with the DOH.
The Chairperson replied that there would be responses to the Child Justice Amendment Act next week, and the State Liability Amendment Bill would be the following week. The final programme would be completed by next Tuesday.
The meeting was adjourned.
- Committee Report on Agreement between Government RSA & Government of the United Arab Emirates on Mutual Legal Assistance in Criminal Matters
- Committee Report on Extradition Treaty between Government of RSA & Government of the United Arab Emirates
- Committee Report on Cybercrimes and Cybersecurity Bill [B6-2017]
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