Memo on Mutual Legal Assistance in Criminal Matters Treaty with People's Republic of China

EXPLANATORY MEMORANDUM : RATIFICATION OF THE MUTUAL LEGAL
ASSISTANCE IN CRIMINAL MATTERS TREATY (THE TREATY) BETWEEN THE
REPUBLIC OF SOUTH AFRICA AND THE PEOPLE'S REPUBLIC OF CHINA IN
TERMS OF SECTION 231(2) OF THE CONSTITUTION OF THE REPUBLIC OF
SOUTH AFRICA ACT, 1996 (ACT NO 108 OF 1996) (THE CONSTITUTION)

1. PURPOSE

The purpose of this memorandum is to set out the background and to seek Parliaments
approval to ratify the above mentioned Treaty in terms Of section 231(2) of the
Constitution.

2. BACKGROUND

2.1 The Constitution provides in section 231(1) that the negotiating and signing of all
international agreements is the responsibility of the national executive. Section 231 (2)
further provides that an international agreement binds the Republic only after it has been
approved by resolution in both National Assembly and the National Council Of Provinces,
unless it is an agreement which does not require ratification.

2.2 Section 27(1) of the International Co-operation in Criminal Matters Act, 1996 (Act no 75
of 1996) (the Act) states as follows:

"The President may on such conditions as he or she may deem fit enter into any
agreement with any foreign State for the provision of mutual assistance in criminal
matters and may agree to any amendment of such agreement.".

2.3 The President approved and the Minister for Justice and Constitutional Development
subsequently signed the Treaty on behalf of the Government.

2.4 In terms of article 24(1) of the Treaty, the Treaty is subject to ratification and the
instruments of ratification shall be exchanged at a place to be determined by the
Contracting States. The Treaty shall enter into force on the thirtieth day after the date of
the exchange of the instruments of ratification

2.5) As soon as Parliament has approved the ratification of the Treaty, the Minister for Justice
and Constitutional Development will give notice thereof in the Gazette in terms of section
27(2) of the Act.


3. PERSONNEL AND FINANCIAL IMPLICATIONS
No personnel or financial implications are foreseen.

4. CONSTITUTIONAL IMPLICATIONS
The State Law Adviser (International Law) and the Chief State Law Adviser indicated that
no provision of the Treaty is in conflict with international law and domestic law,
respectively.

5. RECOMMENDATION

In the light of the above and to improve the effectiveness of the law enforcement
authorities of both countries in the investigation, prosecution and prevention of crime
through co-operation and mutual legal assistance in criminal matters, it is recommended
that Parliament approve the ratification of the Treaty.