NATIONAL ASSEMBLY AND NATIONAL COUNCIL OF PROVINCES

RATIFICATION OF THE EXTRADITION AND MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS TREATIES BETWEEN THE REPUBLIC OF SOUTH AFRICA AND THE ARGENTINE REPUBLIC IN TERMS OF SECTION 231(2) OF THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA, 1996 (ACT NO 108 OF 1996)

1. PURPOSE

The purpose of this memorandum is to provide the background and to seek Parliament's approval to ratify the abovementioned Treaties in terms of section 231 (2) of the Constitution.

2. BACKGROUND

2.1 The Extradition Act, 1962 (Act 67 of 1962) inter alia, provides in section 2(1 )(a) that the President may on such conditions as he may deem fit but subject to the provisions of the Act, enter into an agreement with any foreign state, other than a designated state, providing for the surrender on a reciprocal basis of persons accused or convicted of the commission within the jurisdiction of the Republic or such state or any territory under the sovereignty or protection of such state, of an extraditable offence or offences specified in such agreement and may likewise agree to any amendment or revocation of such agreement. A similar provision exists in section 27(1) of the International Cooperation in Criminal Matters Act, 1996 (Act 75 of 1996).

2.2 Section 2(3)(a) of the Extradition Act, 1962 (Act 67 of 1962) subsequently states that no such agreement or any amendment thereof shall be of any force or effect until the ratification of, or amendment of such agreement, or designation has been agreed to by Parliament. Section 27(2) of the 'International Cooperation in Criminal Matters Act, 1996 (Act 75 of 1996) equally states that the Minister for Justice and Constitutional Development shall as soon as practical after Parliament has agreed to the ratification, or accession to, or amendment, or revocation of an agreement referred to in section 27(1), give notice thereof in the Gazette.

2.3 The State Law Advisers have indicated that the proposed Treaties are not in conflict with South Africa's domestic law and existing international obligations.

2.4 The President approved on 26 February 2007 that the Minister of Foreign Affairs sign the Treaties with the Argentine Republic on behalf of the Government.

2.5 In terms of article 22(2) of the Extradition Treaty and article 23(2) of the Mutual Legal Assistance in Criminal Matters Treaty, the respective Treaties shall enter into force on the day after the date of the exchange of instruments of ratification.

2.6 Section 231 (2) of the Constitution provides as follows:

"An international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces, unless it is an agreement referred to in subsection (3). ".

2.7 As soon as Parliament has approved the ratification of the Treaties, the Minister for Justice and Constitutional Development will give notice thereof in the Gazette in terms of section 2(3)ter of the Extradition Act, 1962 (Act 67 of 1962) and section 27(2) of the International Cooperation in Criminal Matters Act, 1996 (Act 75 of 1996).

3. RECOMMENDATION

In the light of the above and also to indicate to the rest of the world that South Africa will not be a safe haven for criminals, it is recommended that Parliament approve the ratification of the said Treaties.