SADC Protocol on Extradition; SADC Protocol on Mutual Legal Assistance; Notice of the Interim Rationalisation of Jurisdiction of

Meeting report

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
2 April 2003
SADC PROTOCOL ON EXTRADITION; SADC PROTOCOL ON MUTUAL LEGAL ASSISTANCE; NOTICE OF THE INTERIM RATIONALISATION OF JURISDICTION OF HIGH COURTS: BRIEFING BY JUSTICE DEPARTMENT

Chairperson: Kgoshi M Mokoena (ANC)

Documents handed out:
SADC Protocol on Extradition
SADC Protocol on Mutual Legal Assistance in Criminal Matters
Committee Report on the SADC Protocol on Extradition (Appendix 1)
Committee Report on the SADC Protocol on Mutual Legal Assistance in Criminal Matters (Appendix 1)
Committee Report on a Notice in terms of Section 2(1)(a) of the Interim Rationalisation of Jurisdiction of High Courts Act, 2001
Report by Minister for Justice and Constitutional Development on the alteration of the areas of jurisdiction for which High Courts have been established (Appendix 2)

SUMMARY
The Committee accepted the SADC Protocol on Extradition. The Committee discussed the provision that extradition may be refused unless the requesting State assures that the death penalty will not be imposed or, if imposed, will not be carried out.

The Committee accepted the SADC Protocol on Mutual Legal Assistance in Criminal Matters. In its report the Committee recommended that the Director General: Justice and Constitutional Development be designated as the central authority for requests in terms of the Protocol.

The Committee agreed to the Minister's Notice in terms of the Interim Rationalisation of Jurisdiction of High Courts Act, altering the jurisdiction of certain High Courts. The Department explained that the final jurisdiction and naming (to reflect current names) of the High Courts would be addressed in the Superior Courts Bill to be tabled in the second half of 2003.

MINUTES
Briefing by Department: Protocol on Extradition
Mr E Allers, Department of Justice and Constitutional Development, noted that the SADC Protocol was the same as other Protocols on extradition that the Committee had considered in the past. The Chief State Law Advisor had checked the Protocol and was of the opinion that it does not contravene domestic law. The Extradition Committee was also satisfied with its content. The Committee's attention was drawn to Article 5 (c), which requires that extradition for an offence that carries the death penalty in the requesting State not be carried out without an assurance that the death penalty will not be imposed or, if imposed, will not be carried out.

Discussion
Mr P Matthee (NNP, Kwazulu-Natal) stated that since the Protocol was no different to previous protocols, he did not think it would be necessary for the Committee to go through the Protocol article by article and proposed that the Committee accept the Protocol.

Mr C Ackerman (NNP, Western Cape) agreed with Mr Matthee.

Mr P Maloyi (ANC, North West) agreed but asked for clarity on the meaning of the phrase 'if imposed, will not be carried out'.

Mr Matthee explained that in certain circumstances, Judges do not have discretion regarding the imposition of the death penalty. However, carrying out the penalty is an Executive function not a Judicial one. Thus, the Executive can bind itself not to carry out the penalty.

Mr Allers concurred with Mr Matthee's explanation.

Mr R Nyakane (United Democratic Party, Northern Province) asked how this applied if the person whose extradition was requested was not a South African citizen. He posed the hypothetical case of a Lesotho citizen who commits murder, knowing that it attracts the death penalty, and then escapes to South Africa to avoid capital punishment.

Mr Allers replied that even in such cases, unless the assurance was given, the person would not be extradited.

Mr Matthee added that this was simply the risk one took and that there was nothing that could be done about it. Considering how few cases like this there are, it is a minimal risk.

Mr Maloyi asked if it was not undermining the Judiciary to say that they may impose the sentence but the Executive will not carry it out.

Ms J Kgoali (ANC, Gauteng) responded that there was separation of powers - the Executive bound themselves, not the Judiciary.

Mr Matthee added that the carrying out of a sentence is an Executive function. The Judiciary has completed its task at the point where sentence is passed. So it was not disrespectful to the Judiciary. To illustrate the matter further, he noted that it was internationally recognised that heads of state may pardon convicted criminals.

The Committee accepted the Protocol and unanimously adopted the Report recommending that the NCOP approve the Protocol.

Briefing by Department: Protocol on Mutual Legal Assistance
Mr Allers noted that the SADC Protocol was the same as previous protocols on mutual legal assistance considered by the Committee. He drew the Committee's attention to Article 3 (1), which requires the designation of a Central Authority to make and receive requests pursuant to the Protocol. The Department recommended that the Director General be designated.

Discussion
Mr Maloyi noted that neither Zambia nor Mozambique had signed the Protocols.

Mr Ellers responded that they had not been present at the meeting in Angola, but that the Department of Foreign Affairs had indicated to him that they had since signed the Protocols.

The Committee accepted the Protocol and unanimously adopted the Report recommending that the NCOP approve the Protocol and that the Director General: Justice and Constitutional Development be designated as the Central Authority.

Briefing by Department: Notice of the Interim Rationalisation of Jurisdiction of High Courts
Mr Ellers noted that in terms of the Interim Rationalisation of Jurisdiction of High Courts Act, 41 of 2001, the Minister may, after consultation with the Judicial Services Commission (JSC), alter the area of jurisdiction for which a High Court has been established. Such changes require a Notice, which must be approved by Parliament and then Gazetted. Task team investigations had proposed alterations to the areas of jurisdiction of the High Courts. The proposals were considered by the Heads of Court meeting on 7 October 2002. It was approved except for an amendment to delete Brits from the list of districts to be moved from the Pretoria to the Mmabatho High Court's jurisdiction. The JSC discussed the matter during its meeting from 8 to 11 October 2002 and agreed to the proposals. Notices have been prepared reflecting these recommendations, which Notices have been technically scrutinised by the Chief State Law Advisor. A draft Notice was presented to the Committee for consideration.

Changes in terms of the Notice:
-Orange Free State Provincial division: Thaba'Nchu is included.
-Bophuthatswana High Court: Vryburg, Lichtenberg, Coligny, Zeerust, Groot Marico, Swartruggens, Koster, Rustenburg and Delareyville are included. Thaba'Nchu is excised.
-Cape of Good Hope Provincial Division: Willowmore, Namaqualand (Springbok), Williston, Sutherland, Calvinia and Frazerberg are excised.
-Eastern Cape Division: Willowmore is included. Noupoort, Colesberg and Hanover are excised.
-Northern Cape Division: Namaqualand (Springbok), Williston, Sutherland, Calvinia, Frazerberg, Noupoort, Colesberg and Hanover are included. Vryburg is excised.
-Transvaal Provincial Division: Lichtenberg, Coligny, Zeerust, Groot Marico, Swartruggens, Koster, Rustenburg and Delareyville are excised.

Discussion
The Chair remarked that the Department was showing the way to the Demarcation Board with its work.

Ms Kgoali asked when the changes would be made permanent.

Mr Allers replied that jurisdiction would be settled finally in the Superior Courts Bill. The Bill should be presented in the second half of the year. A report on the Eastern Cape from the Chief Justice had already been tabled with the JSC.

Ms E Lubidla (ANC, Northern Cape) asked if distance had been considered in working out the jurisdictions.

Mr Allers replied that it had been one of the criteria.

Mr B Mkhalipi (ANC, Mpumalanga) noted that one still found names like 'Northern Transvaal' or 'Witwatersrand'. When will this be dealt with to reflect current names? The present naming inconveniences people.

Mr Matthee responded that the names were retained because the physical area of jurisdiction more or less matched the provinces as they had been before. Is it the intention of the Department that each Province have an equal High Court or would some provinces be combined and thus the names of the High Courts would not match those of the Provinces?

Mr Allers replied that this had been considered at a meeting of the Heads of Court. The issue would be dealt with in the Superior Courts Bill. He reminded the Committee that the Hoexter Commission had made recommendations on High Courts, not all of which had been accepted. When the Superior Courts Bill came before the Committee it could consider the matter and make suggestions. Ideally, all nine Provinces would have High Courts, but this was not likely. Gauteng would likely have two, though there was legal fraternity in-fighting over this since it was proposed that Sandton fall under the Pretoria High Court not the Johannesburg High Court and the Johannesburg Bar had just moved its Chambers to Sandton.

Mr Maloyi asked why Brits had been left under the jurisdiction of the Pretoria High Court. Did distance decide the matter?

Mr Allers replied that no consensus was reached on the matter of Brits, so the status quo was retained. He did not know the reasons for the decision, but could obtain these for the Committee.

The Committee accepted the Notice and unanimously adopted the Report recommending that the NCOP approve the Notice before publication thereof in the Gazette.

The meeting was adjourned.

Appendix 1:
THE NATIONAL ASSEMBLY AND THE NATIONAL COUNCIL OF PROVINCES EXPLANATORY MEMORANDUM: RATIFICATION OF THE SADC PROTOCOL ON EXTRADITION AND THE SADC PROTOCOL ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS (THE PROTOCOLS) IN TERMS OF SECTION 231(2) OF THE CONSTITUTION OF SOUTH AFRICA ACT, 1996 (ACT 108 OF 1996) (THE CONSTITUTION)

1. PURPOSE

The purpose of this memorandum is to request Parliament to approve ratification of the abovementioned Protocols in terms of Section 231(2) of the Constitution.

2. SUMMARY

2.1 Article 22 of the SADC Treaty as amended provides as follows with regard to the conclusion of the Protocols:

"1. Member States shall conclude such Protocols as may be necessary in each area of cooperation which shall spell out the objectives and scope of and institutional mechanisms for cooperation and integration.

2. Each Protocol shall be approved by the Summit on the recommendations of the Council', and shall thereafter become an integral part of this treaty.

3. Each Protocol shall be subject to signature and ratification by the parties thereto."

2.2 The Minister represented South Africa at the SADC Legal Sector meetings. where the Protocols were negotiated and finalised. The SADC Summit of Heads of State or Government signed the Protocols at their meeting in Angola on

3 October 2002. President Mbeki signed on behalf of South Africa and the Protocols are now ready for ratification.

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

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

2.4 The Articles dealing with ratification in the Protocols provide as follows:

"This Protocol shall be subject to ratification by the signatory States accordance with their respective constitutional procedures

2.5 Article 3(1) of the SADC Protocol on Mutual Legal Assistance in Criminal Matters provides as follows:

'1. Each State Party shall designate a Central Authority to make and receive requests pursuant to this Protocol Such designation shall be communicated to the Member States through the Secretariat. F

2.6 As soon as Parliament has approved the ratification of the Protocols, instruments of ratification shall be deposited with the Executive Secretary of SADC.

3. PERSONNEL AND FINANCIAL IMPLICATIONS

No personnel or financial implications are foreseen.

4. CONSTITUTIONAL IMPLICATIONS

The State Law Advisers (International Law) and the Chief State Law Adviser indicated that no provision of the Protocol is in conflict with international law or domestic law respectively.