SA/India Treaties on Extradition & Mutual Legal Assistance in Criminal Matters; Memorandum on UK Designation Under Cross-Border

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Justice and Correctional Services

07 September 2004
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Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
8 September 2004
SA/INDIA TREATIES ON EXTRADITION AND MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS; MEMORANDUM ON UK DESIGNATION UNDER CROSS-BORDER INSOLVENCY ACT; SADC LEGAL AFFAIRS AND AFRICAN UNION COURT OF JUSTICE PROTOCOLS

Chairperson:
Ms F Chohan-Khota (ANC)

Documents handed out:
Treaty between the Government of RSA and the Government of the Republic of India on Extradition
Treaty between RSA and the Republic of India on Mutual Legal Assistance in Criminal Matters
Explanatory Memorandum on Extradition and Mutual Legal Assistance in Criminal Matters Treaties
Explanatory Memorandum on Designation of UK in terms of S2(2)(a) of the Cross-Border Insolvency Act
Explanatory Memorandum on the Southern African Development Community Protocol on Legal Affairs
Explanatory Memorandum on the Court of Justice of the African Union Protocol
Protocol on Legal Affairs in the Southern African Development Community
Protocol of the Court of Justice of the African Union

SUMMARY
The Committee considered and adopted the RSA/India Treaties on Extradition and Mutual Legal Assistance in Criminal Matters, with the understanding that the Department would have to be very explicit in future treaties in dealing with the possibility of the death penalty being imposed on a person extradited from South Africa.

In dealing with the Explanatory Memorandum on the Designation of the UK in terms of the Cross-Border Insolvency Act, the Committee requested the Department to prepare a memorandum dealing with the question of reciprocity, noting that there should be a semblance of equity between the two regimes. The Committee also noted that the government should consider negotiation on designation whenever it considers entering into negotiations for extradition and mutual legal co-operation on criminal matters.

The Committee noted that the Protocol on Legal Affairs in SADC deals with a sector that has since been phased out and felt that it should seek guidance from the Deputy Minister of Justice and Constitutional Development, Adv J de Lange, on the matter.

The Committee was concerned that the Protocol of the Court of Justice of the African Union gives this Court wide powers and that could result in it also dealing with human rights issues and thus making the African Court on Human and People's Rights redundant. The Committee decided to flag all those provisions giving such powers to the African Court of Justice for later consideration and also asked the Department to liase regularly with the Department of Foreign Affairs as they represented the country in the African Union Secretariat.

MINUTES
The Departmental delegation consisted of Ms S Taitai, Policy Unit: Parliamentary Officer, Mr H van Heerden, Legal Advisor, and Mr S Thendisa, Legal Advisor. The Chair extended a special welcome to Ms S Taitai who had replaced Mr E Allers, who had been promoted.

Treaty between the Government of RSA and the Government of the Republic of India on Extradition
Mr H van Heerden (Legal Advisor) noting that the State President, in terms of the Extradition Act, is given powers to enter into extradition agreements, on such terms and conditions as s/he deems fit, took the Committee through the document. He further noted that most of the provisions in the treaty were standard provisions and called on the Committee to approve in terms of Section 213(2) of the Constitution, Act 108 of 1996.

Discussion
Article Two
Mr B Magwanishe (ANC) asked whether it would not be necessary to include the words "without an option of a fine" in paragraph one.

The Chair noted that the intention of this provision was to deal with the most serious crimes and felt that the inclusion of such words would be cumbersome to both parties to the agreement and have the effect of defeating the whole purpose of the treaty. She noted that Parliament had passed a range of treaties of this nature in the past and asked Mr van Heerden to supply the Committee with a detailed report indicating all those countries which have a similar treaty with South Africa.

Mr Magwanishe (ANC) asked what recourse South Africa would have if it extradited someone under a false assurance.

The Chair, noting that a treaty is a bilateral agreement coroneted on an international level with trust, said that any country which entered into a negotiation in bad faith did so at its own peril as a degree of honesty is expected. Therefore when faced with such a situation, one of the ways to deal with the matter, would be to approach an international forum on the basis of international customary law. She thereafter went through the Committee resolution.

The Committee unanimously approved the ratification of the treaty.

Treaty between RSA and the Republic of India on Mutual Legal Assistance in Criminal Matters
Mr van Heerden noted that the basis of this treaty was simply to formalise co-operation between these two countries in relation to criminal matters. Having taken the Committee through the document, he called on it to support its approval in terms of Section 213(2) of the Constitution, Act 108 of 1996.

Discussion
Ms S Camerer (DA) asked what purpose the treaty would serve as South Africa had legislation for extradition and international co-operation on criminal matters.

Mr van Heerden acknowledged that South Africa has an Extradition Act and International Co-operation on Criminal Matters Act, but noted that the treaty seeks to formalise this co-operation by setting out clear procedures.

The Chair said that the purpose was simply to provide legal certainty by creating procedures and thus not having to wait for the President to accede to every specific matter on a case-by-case basis as presently required by the legislation.

Ms Camerer (DA) asked which provision stopped the government from handing over a person where s/he is likely to face the death penalty as was decided by the Constitutional Court of South Africa.

In his response Mr van Heerden said that it is important to bear in mind the fact that any assistance offered in response to a request would have to be in line with the requesting state's domestic laws. Therefore should a possibility exist that India may impose a death sentence on the person being requested then South Africa may refuse to offer such assistance in terms of the provisions of Article 6 of the treaty.

Imam Solomon (ANC) commented that Article 6(2) of the treaty is very clear on this matter.

The Chair however, in concurring with Ms Camerer, was of the view that this fact should have been stated explicitly in the treaty and thus asked the Department to take note of this fact when entering into future treaties. She thereafter went through the Committee resolution.

The Committee unanimously approved the ratification of the treaty.

Explanatory Memorandum on the Designation of the UK in terms of Section 2 of the Cross-Border Insolvency Act
Mr van Heerden took the Committee through the document noting that its aim is to have the United Kingdom designated to deal with cross-border insolvency cases in terms of Section 2(2)(a) of the Cross-Border Insolvency Act. He further noted the provisions of Section 34 of the Act, the resolution taken by the Presidency and the fact that the Act had come into operation on the 28 November 2003 and recommended that the Committee approve the designation as without it, the Act became meaningless.

The Chair said that it should be remembered that when this Act was passed by Parliament some concerns were raised and especially, amongst them, was the question of reciprocity. She thus asked the Department to prepare a memorandum outlining the United Kingdom law on this matter as it is important that there should be some semblance of equity between these two regimes. She further noted that the Committee is very concerned at the slow pace of the designation process as only the United Kingdom responded to the government's calls. She acknowledged that the Act has no value without the designations and proposed that when the government enters into negotiations on extradition and mutual legal co-operation on criminal matters with other countries, it should also negotiate for legal co-operation on other matters, especially on insolvency.

Protocol on Legal Affairs in the Southern African Development Community (SADC)
Mr S Thendisa (Legal Advisor) noted that this Protocol was developed during 2000, whilst the legal sector of the SADC was still in place and was aimed at providing mechanisms on how the SADC Legal Sector should carry out its functions. He noted that the Legal Sector, together with other sectors, has been phased out during the rationalisation process and replaced with Directorates and it was thus unnecessary to ratify this Protocol. This was notwithstanding the SADC Secretariat's insistence that all Member States should ratify the Protocol as it still considers it a valid legal instrument.

The Chair in acknowledging the concern raised by the Department concurred that it would be improper to ratify something that has became defunct, but however felt that it would be proper to seek guidance from the Deputy Minister of Justice and Constitutional Development, Adv J de Lange, in this regard.

Protocol of the Court of Justice of the African Union
Mr Thendisa noted that this Protocol was in terms of Article 5 of the Constitutive Act of the African Union, which empowers the African Union to establish its own institutions. The African Court of Justice would be ad hoc in nature consisting of eleven Judges, with a minimum of two from each region provided that they are not nationals of the same Member State. He therefore called upon the Committee to ratify the Protocol in terms of Section 231(2) of the Constitution.

Discussion
Article 19
The Chair asked whether third parties would be capable of bringing matters before this Court and whether the term also includes NGOs.

Mr Thendisa noted that third parties are not defined and that the Protocol is also silent on whether they would be able to bring their matters before the Court. He was of the view that interpretation of the Protocol would make it possible for third parties to bring issues before the Court. As to the latter part of the question, he said that the definition of a third party might be wide enough to include NGOs.

The Chair noted that the provisions of Article 19(1)(c) and (2) are very open-ended and as such they could easily be manipulated, especially by third parties as they do not have jurisdiction to bring human right issues before the African Court on Human and People's Rights. She was therefore concerned that this Court might end up dealing with human rights issues under the provisions of these sub-articles and thereby making the other Court redundant. She therefore asked these two provisions to be flagged for later consideration.

Article 32
The Chair was concerned about the possibility of default judgements in international matters and asked the Department to provide the Committee with an example where the international court had issued a default judgement in a case. She thereafter thanked the Department for its hard work and noted that they should inform the Committee when they are ready to reappear before it.

The meeting was adjourned.



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