SA/India Extradition & Mutual Legal Assistance in Criminal Matters Treaties; Protocols on Court of Justice of the African Union,

Meeting report

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
25 October 2004
SA/INDIA EXTRADITION AND MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS TREATIES; PROTOCOLS ON COURT OF JUSTICE OF THE AFRICAN UNION, AND LEGAL AFFAIRS IN SADC: ADOPTION

Chairperson: Kgoshi L Mokoena (ANC)[Limpopo]

Documents handed out:
Treaty between the Government of RSA and the Government India on Extradition
Treaty between the RSA and the Government India on Mutual Legal Assistance in Criminal Matters
Protocol of the Court of Justice of the African Union
Protocol on Legal Affairs in the Southern African Development Community

SUMMARY
The Committee, having previously been briefed on the treaties and protocols, met to formally adopt them. Members asked questions about extradition in the case where the death sentence was a possibility, the relatively long period of six months before a treaty could be terminated, and the absence of legal representation to the African Union Court of Justice. Notwithstanding these concerns, the Committee unanimously adopted both the treaties and the protocols which would be tabled in the House on 26 October 2004.

MINUTES

Treaty between the Government of RSA and the Government India on Extradition
The Department of Justice and Constitutional Development was represented by Mr H Van Heerden, State Law Advisor and Mr S Tendisa, State Law Advisor.

Mr M Mzizi (IFP)[Gauteng], noting that these two treaties actually complement each other, asked why South Africa opted to have two different treaties instead of consolidating them into one Treaty.

Mr H Van Heerden (State Law Advisor) responded that the reason was that these treaties are governed by two different statutes, namely the Extradition Act and the International Co-operation in Criminal Matters Act. Therefore if South Africa were to opt for one Treaty instead of two, it would have to amend these enabling Acts or abolish one in order to incorporate its provisions into the other.

Mr S Shiceka (ANC)[Gauteng], noting that India had revived the match-fixing case and asked for South Africa's co-operation, asked what would happen to those South African cricketers who were alleged to have been involved in match-fixing, should Parliament decide to sign these treaties.

Mr Van Heerden said that South Africa would assist India even in the absence of the treaties, as the provisions of the International Co-operation in Criminal Matters Act required such assistance be provided whenever necessary.

Mr D Worth (DA)[Free State] asked if that was the case, why there was a need for a Treaty agreement, which required extradition only if it could be proved that an individual had committed an offence in the requesting state.

Mr Van Heerden noted that, should the Treaty be signed and South Africa received a request from India, the Treaty's provisions would come into fore and the alleged offenders would be extradited to India. In the same manner, India could not be prevented by South Africa, on the basis of the Treaty, from arresting the alleged offenders outright should they step on its soil since they were alleged to have committed the offence in that country.

However, Mr Mzizi (IFP)[Gauteng] said it would be shameful if India did that. Should it require any South African citizen to appear before its own courts, it would have to communicate with South Africa and not arrest its citizens when they were there on national duty.

Mr S Tendisa (State Law Advisor) agreed and noted that if India had really wanted to prosecute the alleged wrongdoers, it could have already done so through various mechanisms, including the two Acts in question.

Article 4: Discretionary Refusal of Extradition
Mr Shiceka (ANC)[Gauteng] asked what would happen if one of the countries to the Treaty agreement reneged and did something contrary to the agreement, like the imposition of the death penalty. The Chairperson asked the Department to answer the question in relation to what happened in Botswana with the execution of Ms M Bosch.

In his response, Mr Van Heerden noted that although South Africa has an extradition Treaty with Botswana, no extradition took place in the Bosch case as she committed a crime in that country and was thus tried and sentenced in terms of Botswana's laws. But should India decide to disregard any provision of this Treaty, then that would definitely give rise to international repercussions since a Treaty is an international bilateral agreement which should be based on trust between the international players. South Africa might be justified in those circumstances to unilaterally terminate the Treaty irrespective of the fact that it should be terminated by mutual consent between both countries.

Mr Shiceka (ANC)[Gauteng] noting that a Treaty is an agreement based on friendship between two counties, asked whether it is possible for them agree that a citizen of one country may not be sentenced to death even if the offence merited such a sentence in terms of the other's domestic laws.

Mr Van Heerden said that although such an agreement is possible, it might be interpreted by the other State as interfering in its territorial sovereignty.

Mr Mzizi (IFP)[Gauteng] agreed that a Treaty should not necessarily be prescriptive over either of the countries to the mutual agreement as that might really interfere with their sovereignty.

Article 8: Authentication of supporting document
Mr Mzizi (IFP)[Gauteng] asked how a State established the authenticity of a document provided by another State.

Mr Van Heerden responded that normally the authenticity of the document is verified by a certificate and seal of the Minister of the said country, and the receiving country can do nothing except to accept the document as having been authenticated.

Article 18: Re-extradition to a third State
The Chairperson asked if a person committed the same offence in two different countries, which one of them would have the power over him/her; thus whether it would be the second or third State to whom the person is extradited.

Mr Van Heerden responded that in such cases the Requesting State would have a final say in the matter as outlined in Article 18(1).

Article 23: Entry into force, amendment and termination
Mr Shiceka (ANC)[Gauteng] asked the Department to clarify the instruments of ratification that should be exchanged in terms of Article 23(1).

Mr Van Heerden explained that an instrument of exchange refers to a document which could only be signed by the Minister of Foreign Affairs, explaining that the Department has complied with South Africa's constitutional process in this regard and thus the Treaty could enter into force as required.

The Chairperson asked why it should take six months before either country could finally terminate the Treaty.

Mr Van Heerden said there was no specific reason, except that it is a standard period in all Treaties, designed to ensure that each State receives an opportunity to finalise all outstanding requests that it might have in the pipeline.

The Chairperson was not happy with the response, noting that it would really be unfair to South Africa to wait for six months before it could finally terminate a Treaty with a country that had shown dishonesty in its dealings with the Government.

Mr Mzizi (IFP)[Gauteng], while agreeing with the Chairperson's sentiments, noted that standards were just there to set the framework in place.

The Committee unanimously adopted the Treaty for approval by the National Council of Provinces. The Chairperson then went through its report.

Treaty between the RSA and the Government India on Mutual Legal Assistance in Criminal Matters
Mr Van Heerden said that that this treaty simply facilitated and formalised the provisions of the International Cooperation in Criminal Matters Act as the provisions of the Act were standard in nature and based on the UN Moral Treaty on Mutual Legal Assistance.

Article 3: Central Authorities
Mr Mzizi (IFP)[Gauteng], while noting the difference of functionality of the Ministries central to the implementation of this Treaty, asked whether the central authority should not be placed with the Minister rather than the Director-General.

Mr Tendisa responded that the functioning of the Department as a whole lay with the Director-General who is the Head of the Department, and therefore the central authority had been placed in his office and not that of the political head of the Department.

Article 4: Execution of Request
Mr Mzizi (IFP)[Gauteng] felt that the provisions of Article 4(3) encroached on the law of secrecy between the banks and their clients, since bank statements are the personal property of the client and cannot therefore be divulged without his/her consent.

Mr B Mkhaliphi (ANC)[Mpumalanga] explained that this is a fairly new development in our law in terms of the provisions of the Financial Intelligence Centre Act, especially those relating to figures, and thus prohibited a bank's refusal to co-operate in criminal matters on the ground of secrecy.

Article 14: Safe conduct
The Chairperson asked clarity on what Article 14(3) in essence implied.

Mr Van Heerden said that although they would have to consult the National Prosecution Authority to get more clarity in this regard, he believed the provision aimed to protect a person from prosecution or penalty that might have otherwise arisen due to his /her failure in the circumstances.

The Chairperson asked the Department to get the required information before the Treaty is tabled in the House for approval.

Article 20: Language
The Chairperson, noting that the continuous use of English suppressed the development of the other official languages in South Africa as contained in the Constitution, felt that this should be stopped as no language should be allowed to enjoy dominant status over other official languages in the Republic.

Article 24: Entry into force, amendment and termination
The Chairperson once more expressed his concern with regard to the six month period before termination as he had done on the Extradition Treaty.

The Committee unanimously adopted the Treaty for approval by the House and the Chairperson then went through its report in this regard.

Protocol of the Court of Justice of the African Union
Mr Shiceka (ANC)[Gauteng] noted that it is important that those issues which were raised in the previous meeting be taken into account, especially those relating to the fact that judicial matters should not be left to the jurists but that civilians should also be involved and must take part in legal processes.

The Chairperson asked whether the Department knew why Morocco was distancing itself from all the AU processes.

Mr Tendisa promised that they would try to find the answer from their Foreign Affairs colleagues since they were involved in the whole AU process.

Article 14: Privileges and immunities
Mr Mzizi (IFP)[Gauteng] asked for clarity about the official capacity of the AU Judges and whether the privileges referred to in the article also extended to their spouses.

Mr Tendisa noted that the provision clearly states that if a Judge did something in pursuance of his office, s/he would not be held accountable after the termination of his/her term of office. Their privileges would be dealt with in terms of the UN and AU instruments that dealt with the privileges and immunities of diplomatic agencies.

Mr Shiceka (ANC)[Gauteng] also raised a concern regarding the seat of the Court and noted that it should try to find a permanent seat so that people knew where to access it.

Mr Tendisa noted that, although this would be an ad hoc Court sitting whenever called upon to adjudicate on a particular case, it would eventually have a permanent seat in Mauritius.

Mr Shiceka (ANC)[Gauteng] felt that this should have been noted in the document.

Article 23: Representation of parties
Mr Shiceka (ANC)[Gauteng] asked why there was no provision for legal representation for people who wanted to approach the Court but did not have the means to do so.

Mr Tendisa responded that the issue of a legal representation would normally be dealt with in a separate document where the Assembly of the Head of States would decide to establish such a fund. However, the present document only deals with the establishment of the Court and its staff.

Mr Shiceka (ANC)[Gauteng] disagreed, feeling that the founding document that establishes the Court should also state clearly how people are to access it.

The Committee unanimously adopted the Protocol for approval by the House and the Chairperson then went through its report in this regard.

Protocol on Legal Affairs in the Southern African Development Community
The Chairperson went through the document. The Committee unanimously adopted the Protocol for approval by the House and the Chairperson then went through its report.

The meeting was adjourned.