RATIFICATION OF THE SURRENDER OF FUGITIVE OFFENDERS AND MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS AGREEMENTS BETWEEN THE REPUBLIC OF SOUTH AFRICA AND THE HONG KONG SPECIAL ADMINISTRATIVE REGION OF THE PEOPLE'S REPUBLIC OF CHINA MR SPEAKER/CHAIRPERSON WE ARE NOW IN AN ERA WHERE SOUTH AFRICA IS A DESTINATION FOR TOURISM AND VARIOUS SPORT TOURNAMENTS. FOR US NOT TO BE A SAFE HAVEN FOR CRIMINALS, I REQUEST PARLIAMENT TO APPROVE THAT WE RATIFY THE AGREEMENTS FOR THE SURRENDER OF FUGITIVE OFFENDERS AND MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS BETWEEN THE REPUBLIC OF SOUTH AFRICA AND THE HONG KONG SPECIAL ADMINISTRATIVE REGION OF THE PEOPLE'S REPUBLIC OF CHINA IN TERMS OF SECTION 231 OF THE CONSTITUTION.

MR SPEAKER/CHAIRPERSON

I HASTEN TO EXPLAIN HOW OUR RELEVANT LEGISLATION LEADS US TO THE CONCLUSION OF THESE BILATERAL AGREEMENTS. THE EXTRADITION ACT, 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).

SECTION 2(3)(a) OF THE EXTRADITION ACT 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 CO-OPERATION ACT EQUALLY STATES THAT THE MINISTER 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.

THE STATE LAW ADVISORS HAVE INDICATED THAT THE AGREEMENTS WHICH WERE SIGNED BY THE FORMER MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT IN HONG KONG ON 20 FEBRUARY 2009

ARE NOT IN CONFLICT WITH SOUTH AFRICA'S DOMESTIC LAW OR INTERNATIONAL OBLIGATIONS.

IN TERMS OF ARTICLE 22(1) OF THE AGREEMENT FOR THE SURRENDER OF FUGITIVE OFFENDERS AND ARTICLE 19(1) OF THE AGREEMENT ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS, THESE AGREEMENTS SHALL ENTER INTO FORCE THIRTY DAYS AFTER THE DATE ON WHICH THE PARTIES

HAVE NOTIFIED EACH OTHER IN WRITING THAT THEIR RESPECTIVE REQUIREMENTS FOR ENTRY INTO FORCE OF THE AGREEMENTS HAVE BEEN COMPLIED WITH.

AS SOON AS PARLIAMENT HAS RATIFIED THE AGREEMENTS, A WRITTEN NOTIFICATION OF RATIFICATION WILL BE SUBMITTED TO HONG KONG.

IN LIGHT OF THE ABOVE AND IN A FIGHT AGAINST TRANSNATIONAL CRIME, I REQUEST PARLIAMENT TO APPROVE THAT THE AGREEMENTS BE RATIFIED.

I THANK YOU.

NATIONAL ASSEMBLY AND NATIONAL COUNCIL OF PROVINCES

RATIFICATION OF THE SURRENDER OF FUGITIVE OFFENDERS AND MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS AGREEMENTS (AGREEMENTS) BETWEEN SOUTH AFRICA AND THE HONG KONG SPECIAL ADMINISTRATIVE REGION OF THE PEOPLE'S REPUBLIC OF CHINA (HONG KONG)

1. PURPOSE

The purpose of this memorandum is to provide a background and to seek Parliament's approval to ratify the abovementioned Agreements 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 During November 1998, a delegation from Hong Kong visited South Africa to negotiate two Agreements, viz, Surrender of Fugitive Offenders and Mutual Legal Assistance in Criminal Matters. Although the negotiations were largely successful, there were outstanding issues which were to be resolved.

2.4 In 2001, former President Thabo Mbeki initialled both Agreements during his official visit to Hong Kong. It should be mentioned that Hong Kong has the authority in their Basic Law to sign the Agreements as mandated by the Central People's Government of the People's Republic of China.

2.5 The former Minister of Justice and Constitutional Development, Mr M E Surty, sought approval from the President to sign the two Agreements on behalf of South Africa. After the President authorised Minister Surty to sign the Agreements, a visit was paid to Hong Kong where the Agreements were signed on 20 February 2009.

3. DISCUSSION

3.1 Article 22(1) of the Agreement for the Surrender of Fugitive Offenders and article 19(1) of the Agreement on Mutual Legal Assistance Agreement respectively, read as follows:

"This Agreement shall enter into force thirty days after the date on which Parties have notified each other in writing that their respective requirements for the entry into force of the Agreement have been complied with.".

3.2 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).".

3.3 Section 2(3) ter of the Extradition Act, 1962 (Act 67 of 1962) and section 27(2) of the International Co-operation in Criminal Matters Act, 1996 (Act 75 of 1996) respectively provide that the Minister shall, as soon as practical after Parliament has agreed to the ratification, give notice thereof in the Government Gazette. In the light of the above and to indicate to the world that South Africa is not a safe haven for criminals, it is recommended that Parliament approve that the two Agreements be ratified.

4. CONSTITUTIONAL IMPLICATIONS

The Chief State Law Advisor (International Law) and the Chief State Law Advisor opine that no provision of the two Agreements is in conflict with international obligations or domestic law, respectively.

5. RECOMMENDATION

It is recommended that Parliament approve that the two Agreements be ratified in terms of section 231 of the Constitution.

NATIONAL ASSEMBLY

RESOLUTION

The National Assembly approves the ratification of the Agreement between the Republic of South Africa and the Government of the Hong Kong Special Administrative Region of the People's Republic of China concerning Mutual Legal Assistance in Criminal Matters in terms of section 231 (2) of the Constitution of the Republic of South Africa, 1996 (Act 108 of 1996).