Treaties with Argentine Republic: Approval & Criminal Law (Sexual Offences) Amendment Act: briefings

NCOP Security and Justice

15 October 2007
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Meeting Summary

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Meeting report

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
16 OCTOBER 2007
TREATIES WITH ARGENTINE REPUBLIC: APPROVAL & CRIMINAL LAW (SEXUAL OFFENCES) AMENDMENT ACT: JUSTICE DEPARTMENT BRIEFINGS

Chairperson: Kgoshi L M Mokoena (ANC, Limpopo)

Documents handed out
Extradition treaty between Republic of South Africa and Argentine Republic
Treaty between Republic of South Africa and Argentine Republic on Mutual Legal Assistance in Criminal Matters
Existing law Relating to sexual Offences
Criminal Law (Sexual Offences and Related Matters) Amendment Bill [B50B-2003]
Summary and Analysis: Criminal Law (Sexual Offences) Amendment Bill [B 50 - 2003]
Draft committee programme

Audio recording of meeting

SUMMARY
The Department of Justice representatives presented a briefing on the Extradition Treaty between the Republic of South Africa and the Argentine Republic and a treaty between the Republic of South Africa and the Argentine Republic on Mutual Assistance in Criminal matters. The background and provisions of each Treaty were given. The distinction between the specific terms of the Extradition Treaty and the more general mutual legal assistance were given. Members raised concerns that they were merely being asked to “rubber-stamp” the treaties. The Department clarified that two extradition orders were presently being challenged on the basis that the procedures followed were incorrect, and that Parliament should not be asked merely to ratify, but to debate and formally pass treaties. This was a matter on which the Constitutional Court would give a decision in due course. Other queries related to extradition to a country where the death penalty was in force, and concerns about extradition where agreements might not be honoured by an overtaking force.

The Department of Justice then continued to take the Committee through the Criminal Law (Sexual Offences) Bill [B50B-2003] incorporating the amendments made by the Portfolio Committee on Justice. It dealt with Chapters 5 and 6, explaining the rationale for and the content of the provisions. Members raised several concerns with the provisions around HIV testing, the confidentiality, the methods of testing, conveying of the information to interested parties other than the victim, and whether the State was likely to be sued in cases where the HIV testing was later proved not to have been necessary. The drafters emphasised that the rights of the victim to restorative justice outweighed those of the alleged perpetrator to privacy. The provisions around the register of sexual offenders were also set out. Several questions and comments were raised about the placing of names on the register and questions of clarity related to whether perpetrators would be prevented from taking on any employment and the periods for which names remained on the list. Doubts were expressed as to the rehabilitation of offenders.

MINUTES
Treaties with the Argentine Republic

Adv Hank B van Heerden, Senior Legal Administration Officer: International Affairs Department of Justice and Constitutional Affairs (DOJ), briefed the Committee on two treaties with the Argentine Republic dealing with Extradition, and Mutual Legal Assistance in Criminal Matters. He outlined that the clauses of each Bill were based closely on treaties already adopted by South Africa with other countries, and further that the Extradition Treaty was also modelled on the UN Model Treaty.

He informed the Committee that South Africa's existing extradition treaties with both the USA and Australia had been challenged by individuals opposing their own extradition and that decisions on both matters were awaited from the High Court. The individuals concerned were claiming that the extradition treaties should have been enacted only after the President, not the Minister, had signed such laws and that they should have been formally promulgated, similar to domestic laws. The Department held the view that the provisions of the Constitution and the Extradition Act did not require this. The Department's view was based on Section 231 of the Constitution, and the fact that as these were self-executing agreements they did not require enactment.

Both parties to the litigation had indicated that no matter the outcome in the High Court it would be referred to the Constitutional Court for determination of the correct procedure. There had been an argument that the procedures in the National Assembly and National Council of Provinces were not properly followed, but separate legal counsel for Parliament had argued this matter. The procedural aspects therefore would fall to be decided by the pending cases.

The Department was confident that the procedure it had followed was correct. However, the concept of the administrative nature of self-executing agreements or provisions in the agreement had been taken over from the American system, as a result of which there were no decided cases or precedents. The real question was around the executive provisions on the nature of the contract between two governments. The Department felt that the provisions of the Extradition Act could give effect to the terms of the treaty, so that it was not necessary for anything further. The text of this Act referred to "self-executing" and "uitvoerbaar" and all agreements were similar.
It was suggested that in the meantime the Committee should proceed along the lines of past treaty adoptions.

Adv van Heerden outlined that a treaty of this nature would be presented to the Legal Advisers of the Department of Justice and Constitutional Affairs for review of its compatibility with domestic law. It would then proceed to the Legal Advisers of the Department of Foreign Affairs for a review of compatibility with International Laws. The Legal Advisers in the Presidential Office would undertake further vetting. This draft had been approved on 26 February 2007, and signed off by the Department of Foreign Affairs, whereafter it had been drafted as a Bill for
consideration by both Houses of Parliament

Extradition Treaty with the Argentine Republic
Adv van Heerden addressed the Committee on each of the clauses of the Extradition Treaty with the Argentine Republic.
Article 1, set out the agreement, with the intention that the domestic law in each country, but especially the Bill of Rights in the South African Constitution, was of paramount importance.

Article 2, defined what were extraditable offences, and set out that the principle of dual criminality was sacrosanct. This meant that the offence upon which an extradition application was based must be an offence in both countries. Implementation of the extradition was subject to South African domestic law. Political crimes were not extraditable offences. There were also built-in anti extradition provisions, so that if the remaining portion of any sentence was less than 6 months, or if a long period of time had passed since commission of the alleged offences, this could preclude the operation of the extradition treaty.

If the alleged offence was one against the taxation, customs duties, exchange control, or other revenue laws of the requesting country, extradition may not be refused by the requested country on the grounds that its equivalent laws did not provide for similar offences. No matter whether the alleged offence was committed in or outside the jurisdiction of the requesting country, extradition would apply, save only that the requested state could refuse extradition if its own laws did not recognise the actions as an offence at all. If the request for extradition related to a sentence of both imprisonment and a fine, the requested state could grant extradition for enforcement of both sanctions, and for any other offence specified in the request, if the other requirements were met.

Article 3, provides for mandatory refusals of extradition. He explained that this related to political offences, which excluded attacks against the physical integrity of the Head of State, or his or her family. It also excluded any offence mentioned in a multilateral agreement and other named matters.

Article 4 provided for mandatory refusals of extradition where the offence for which extradition was sought could attract the death penalty of the requesting State, unless there were assurances that this sanction would not be imposed.

Article 5 provided that extradition should not be refused on grounds of the nationality of the person sought

Article 6 provides for the refusal of extradition if the offence was already being prosecuted in the requested State, or where the personal circumstances of the accused would mitigate against humanitarian considerations, or where that person had already been convicted or acquitted in a third state for the same offence for which extradition as requested, and where a sentence had not been enforced or could no longer be enforceable.

Article 7 provided how requests must be made and submitted. It set out the supporting documents.
Article 8 provided for the admissibility of documents, including translated documents.

Article 9 provided for the translation into an official language of South Africa of the documents relating to the extradition.

Article 10 provided for the discretionary request by the requested State of more supporting information.

Article 11 provided for a simplified extradition where the person consented to it.

Article 12 provided for the provisional arrest of the person in matters of urgency. This could be done through diplomatic channels, Interpol, the relevant Ministry in the Argentine Republic or the Ministry of Justice and Constitutional Development in South Africa.

Article 13 provided for concurrent arrests where two or more States requested extradition of the same person, and the criteria and notification procedures.

Article 14 provides for matters ancillary to the acceding to a request. Article 15 provided for the discretionary temporary or deferred surrender of the person sought.

Article 16 provided for the seizure and surrender of property, even in the event of death, disappearance or escape of the person sought.

Article 17 provided for the Rule of Speciality. This noted that a person extradited could not be tried or punished by the requesting state for any offences other than those named in the extradition order and related matters.

Article 18 set out transit arrangements. Article 19 dealt with expenses. Article 20 provided for the affording of legal representation by the requested to the requesting State. Article 21 set out discretionary consultation procedures and Article 22 provided for ratification and effective dates and termination of the treaty.

Mutual Legal Assistance treaty
Adv van Heerden clarified that this Treaty was intended to provide the widest possible measure of mutual legal assistance in criminal matters. The International Cooperation in Criminal Matters Act in any event permitted assistance to be given by South Africa. The assistance could be in respect of investigations, or prosecution or proceedings in the requesting State. It would relate to both statutory and common law offences in South Africa. It would include taxation, customs duties, retirement schemes and foreign exchange. The principle of dual criminality was not included. Therefore if South Africa received a request for assistance in respect of a matter that was an offence only in Argentina, it would not be necessary for the matter to be criminalised also in South Africa, as would be the case if extradition were sought. These principles were set out in Articles 1 to 5 of the Treaty.

Article 2 related to execution of requests, and Article 3 to the contents of request. Both were self-explanatory.

Under Article 4 requests could be postponed or refused in certain circumstances, which included any that would interfere with ongoing investigation or prosecution in the sovereign State, or where sovereignty, security or public interest were affected. There was a possibility to set conditions for assistance to be provided.

Article 5 dealt with location and identification by competent authorities of the requested State.

Article 6 related to service of documents.

Article 7, relating to provision of information, documents, records and objects was also self-explanatory, and stated that usually certified copies would suffice, accompanied by a form of authentication that would make them admissible.

Article 8 dealt with search and seizure.

Article 9 dealt with taking of evidence and obtaining statements. The requested could be compelled to appear, if this was in accordance with domestic law. Recording of the proceedings was permitted, and video and technological evidence was allowed.

Article 10 provided that a person in prison in the requested state could be temporarily transferred to the requesting State, although that person must be returned on conclusion of the request.

Article 11 dealt with provision of evidence or assistance in investigations. However, a person could not be compelled to appear in the requesting State.

Article 12 dealt with safe conduct, and set out that a person transferred to the requesting State could not be compelled to answer to any other matters.

Article 13 noted that the requested State should endeavour to ascertain whether any proceeds of crime were within its jurisdiction. Where found, the requested State should take steps, if permitted to do so by its domestic law, to seize and destroy such proceeds, or allow them to accrue to the requesting State.

Article 14 dealt with restitution to the victims of crime, if permitted by domestic law.

The central laws were listed in Article 15. Article 16 dealt with confidentiality. Article 17 noted that no information or evidence could be used other than for what was stated in the request. Article 18 noted that documents would not require official authentication. Article 19 dealt with language.

Article 20 stated that the requested state was to meet the costs of executing the request for assistance, except for circumstances listed.

Article 21 stated that assistance under this Treaty did not prevent other parties from granting assistance through any other law.

Article 22 dealt with consultation.

Article 23 set out the entry into force, amendment and termination. The treaty was to enter into force on the day after the date of exchange of instruments of ratification. Provision was made for amendment and termination.

Discussion

The Chairperson noted that these treaties appeared to have been thoroughly prepared and were effectively just being presented to Parliament for “rubber-stamping” He was not entirely happy with the situation.

Adv van Heerden pointed out that the Section 231 of the Constitution set out the mechanisms for treaties. In the USA and Australia challenges before the courts, the reservations expressed by the Chairperson were in essence the reasons for challenge.

Mr N Mack (ANC, Western Cape) raised a question on assurance that the death penalty, if in force in the requesting State, would not be imposed, particularly where a military takeover or coup d’etat might supervene. He asked what would happen here, in circumstances clearly beyond the control of the authority. which had given the assurance.

Mr M Mzizi (IFP) raised concerns about co-operation on extradition matters giving rise to breaches of humanitarian considerations. He would be in favour of supporting documentation in every case being provided.

Adv van Heerden asserted that every request for extradition was evaluated against the domestic law of South Africa, and particularly the fact that the death penalty no longer applied, and humanitarian considerations were paramount. The requesting State must provide the receiving State with proof that the death penalty was not applicable to the person being extradited. He added that the Mohammed case had political considerations greater than legal considerations. With regard to restitution of property the requesting State must provide sufficient and substantial proof. He added that this was an agreement and consequences would attach to the breach. Any breach could well lead to the breaking off of diplomatic relations, which would affect trade, and breach of faith was severely sanctioned.

Mr Mack was then concerned that if extradition as not granted there might be accusations of harbouring criminals against the refusing State.

Mr Mzizi wanted to know whether assurances relating to non-imposition of the death penalty could be set aside by a higher Court.

Adv van Heerden assured the Committee that no request for extradition would be given in these circumstances. The Committee was speculating unnecessarily. He added that the risk of breaking of diplomatic relations made it extremely unlikely that such agreements would be breached.

The Committee then resolved, in respect of each treaty in turn, to approve the treaty and recommend ratification.

Criminal Law (Sexual Offences) Amendment Bill: Department of Justice (DOJ) Continuation of Briefing
Mr Henk du Preez, Senior State Law Advisor, Department of Justice, briefed the Committee on the Criminal Law (Sexual Offences and related matters) Amendment Bill [B 50-2003] (the Bill). He tabled and handed out a Working Paper, indicating that words in bold type in square brackets indicated omissions from existing clauses, and words underlined with a solid line indicate insertions into existing clauses.

Mr du Preez explained that Chapter 5 of the Bill contained definitions applicable only to this Chapter, which were self explanatory.

Clause 28 provided for the HIV testing of a rape victim and the provision of prophylactic treatment, and the time limits.

Clause 29 sets out the obligations of the Ministry of Health and other possible role players with regard to the provision of Post Exposure Prophylaxis (PEP) to the alleged victim.

Clause 30 was a new departure in law, for it authorised the compulsory testing for HIV through the blood or bodily excretions of any alleged offender or perpetrator. It set out who may authorise such testing, who may receive the results of such testing and where the original test result was to be retained pending the Court case or disposal of the complaint. He explained that the Magistrate deciding on the application for testing would apply the more lenient test of balance of probabilities, that was applicable to civil actions, not the criminal scale of beyond reasonable doubt. There were stringent provisions for the application and the test results, and set out how the results could be used, and the confidentiality provisions. Penalties were provided for offences connected with misuse of these samples and the tests.

Discussion
Mr Z Ntuli (ANC, Kwazulu Natal) said that he felt that the provision of allowing testing of an alleged perpetrator of a rape or other sexual offence before conviction went against the presumption of innocent until proven guilty.

Mr N Mack (ANC, Western Cape) also expressed concerns that the Constitutional rights of the alleged perpetrator were infringed or diminished by this provision. He expressed concern that an alleged perpetrator might never come to trial, or could be acquitted and then institute action for damages against the State.

Ms F Nyanda (ANC, Mpumalanga) said that her experience in Mpumalanga was that the SA Police Services (SAPS) were slow, or reluctant, to investigate alleged sexual crimes and so an NGO had become active in assisting alleged victims of rape and insisting on investigation and prosecution of the alleged offenders. In the course of their work they would receive confidential information. She asked what would the position be if the employees of the NGO were to obtain knowledge of the HIV status. .

Mr M Mzizi (IFP, Gauteng) placed on record that he had no sympathy for rapists. However, he was concerned about how the testing procedures would obtain semen for testing, for instance. He also sought clarity on the confidentiality aspects.

Mr du Preez replied that confidentiality was to be maintained and that a breach would constitute an offences with very severe consequences. Determining the HIV status of the alleged perpetrator was important for the alleged victim, as knowledge of the status would enable the victim to take necessary actions, such as taking anti retroviral (ARV) medication, consult a care giver, and in short attempt to get back some semblance of normality after a trauma. He reminded the Committee that the rights enshrined in the Constitution were not absolute, but were always subject to balancing against the rights of others. In the example of rape, the rights of the victim to restorative justice would outweigh the rights of the alleged victim to not have an HIV test, and not to have the results made known to interested parties. The HIV test could only be done within the 90 day window period, but should take place as soon as possible.

Mr du Preez noted that the Bill did already provide for penalties for malicious complaints against alleged perpetrators.

In regard to the concerns about the testing, the actual method of testing was up to the medical practitioners, but he thought that the HIV status could be determined through a blood, not a semen, sample.

He would be asking further legal opinion on the State’s potential liability where a test was forced upon an alleged perpetrator, in circumstances found not necessary.

Mr A L Moseki (ANC, North West) said that the general impression was that sexual offences encompassed rape of women by men, but in this Bill there was constant reference to male-on-male sexual offences. He asked for confirmation that this Bill was not gender specific.

Mr du Preez replied that the Bill envisaged four categories or classes of activity: male against male; male against female; female against male; and female against female activity and that these categories had been arrived at as a result of the Constitutional Court judgement in a case where a minor female had been penetrated anally, but because this did not fall in line with the existing definition of rape, the accused could not be convicted of rape, but only of the lesser offence of indecent assault, which carried lesser penalties. The Magistrate trying the matter had attempted to “force” a definition of rape to satisfy the feelings of the community for justice.

Mr Ntuli wanted to know how testing the alleged perpetrator was going to assist the alleged complainant or victim.

Mr du Preez said that it was an element of restorative justice. If nothing else it would allow the victim to seek, and obtain, suitable counselling, and be able to access ARVs to cut down the possibility of infection.

Mr D Worth (DA, Free State) said that paternity testing in maintenance cases was permitted and he did not see much difference between those cases and testing for HIV of an alleged perpetrator.

Mr Mzizi noted that in many cases the community would have its own ideas as to how to deal with a rapist. He asked what the thinking of the drafters was. He wondered what would happen if the alleged victim already had HIV, and whether here testing would be justified.

Mr du Preez said that the bottom line as that if there as suspicion of the perpetrator’s HIV status (for instance where a condom was not used), the bodily fluids of the alleged perpetrator must be tested so that the victim could receive, in the shortest possible time, PEP and counselling

The Chair asked what was the position where both parties were already infected.

Mr Worth said that he felt the medical practitioners would be able to determine the prior infection.

The Chairperson suggested that the question of CD 4 counts be flagged and reverted to again.

Mr Mzizi said that he believed that the HIV testing would only be for the purpose of later civil litigation.

Mr Moseki said that the Committee should do all in its power to ascertain the facts.

Mr du Preez said that in essence there was only two questions- did the alleged perpetrator have HIV or carry another sexually transmissible disease, and, if so, what response should the victim make. The provisions of this Bill were intended to enable the victim to get the facts, with which to take the necessary action, be it PEP or counselling. This Bill had a long history and Cabinet had approved the contents in principle.

Mr Ntuthuzelo Vanara, Parliamentary Legal Advisor added that HIV or any STD could now be regarded as an aggravating factor in a rape or assault attack.

Mr du Preez said that these provisions emerged from a real, not hypothetical, case where the rapist, knowing of his HIV status, had raped with the intention of transmitting the disease. The South African Law Reform Commission (SALRC) had been seized with this problem ever since.

Mr du Preez noted the various questions as to whether only the victim should be apprised of the test results. He pointed out that the Bill made provision for associated parties, such as spouse, parents, or guardians of the victim to obtain and receive the test results. so that action on behalf of a victim, could be taken, particularly if the victim had been so badly injured or traumatised, or was under age or mentally handicapped, that the decision would need to be taken by a responsible person within the window period.

Ms Delene Clark, Researcher, SA Law Reform Commission, dealt with the Chapter 6 provisions, relating to the National Register of sex offenders. She went through them, explaining what each meant.

Discussion
Several Members expressed concern that once a person was registered as a sex offender this would be a “tag for life”.

Ms Clark explained that this was not so, and referred to several instances in the Bill where this aspect was dealt with.

Members then raised concerns about future employment prospects of anyone listed on the register.

Ms Clark explained, again by reference to clauses in the Bill, that a listing on the register only precluded employment where there was the possibility of coming into contact with the vulnerable elements of society, such as children and mentally handicapped persons.

Members discussed and expressed great reservations about the Department of Correctional Services’ ability to really rehabilitate an offender. They also raised queries whether Parole Boards were doing an effective job, claiming that some would grant parole to offenders without just reason.

Mr du Preez and Ms Clark went to great effort to allay any such suspicions and repeated that an offender’s name could be removed by application after certain stipulated time periods, depending on the sentence given to the offender at the conviction.

The meeting was adjourned.


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