REPUBLIC OF SOUTH AFRICA

 

 

IMPLEMENTATION OF THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT IN SOUTH AFRICA BILL

 

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(As introduced in the National Assembly as a section 75 Bill; summary of Bill published in Government Gazette No. 22456 of 4 July 2001)(The English text is the official text of the Bill)

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(MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[B42 - 2001][B -2002]

BILL

To provide for [the incorporation of the Rome Statute of the International Criminal Court into South African law;] the implementation [and enforcement] of the Rome Statute of the International Criminal Court in South Africa; cooperation with the International Criminal Court; the arrest of persons and their surrender to the International Criminal Court; and to provide for matters connected therewith.

PREAMBLE

[RECOGNIZING that millions of people have been victims of crimes against humanity and that such crimes threaten the peace, security and well-being of the world;

DETERMINED to put an end to impunity for the perpetrators of these crimes and to guarantee lasting respect for the enforcement of international justice;]

MINDFUL that—

* throughout the history of human-kind, millions of children, women and men have suffered as a result of atrocities which constitute the crimes of genocide, crimes against humanity, war crimes and the crime of aggression in terms of international law ;

* the Republic of South Africa, with its own history of atrocities, has, since 1994, become an integral and accepted member of the community of nations/global village and is committed to —

* bringing to justice persons who commit such atrocities, either in a court of law of the Republic in terms of its domestic laws or in the International Criminal Court, created by and functioning in terms of the Rome Statute of the International Criminal Court;

* carrying out its obligations in terms of the said Statute;

BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as follows:—

CONTENTS

Section

[PART] CHAPTER 1

DEFINITIONS, [ENACTMENT OF STATUTE AS PART OF SOUTH AFRICAN LAW AND] OBJECTS AND INTERPRETATION OF ACT

Definitions 1

[Enactment of Statute as part of South African law 2]

Objects of Act [3]2

Interpretation of Act ............................................................................................................................3

[PART] CHAPTER 2

[APPLICATION OF ACT IN REPUBLIC AND] JURISDICTION OF SOUTH AFRICAN COURTS IN RESPECT OF CRIMES

[Application of Act and Statute] Jurisdiction of South African Courts in respect of crimes. .............. 4

CHAPTER 3

FUNCTIONING OF COURT IN SOUTH AFRICA AND PRIVILEGES AND IMMUNITIES OF COURT

Seat of Court in Republic 5

Privileges and immunities of Court 6

Rights and privileges of witnesses in proceedings before Court 7

[PART 3] CHAPTER 4

COOPERATION WITH AND ASSISTANCE TO COURT

PART 1

COOPERATION WITH COURT: ARREST OF PERSONS AND THEIR SURRENDER TO COURT

Endorsement of warrants of arrest 8

Provisional warrants of arrest 9

Proceedings before competent court after arrest for purposes of surrender 10

Removal of persons surrendered 11

Entry and passage of persons in custody through the Republic 12

Discharge of persons not surrendered 13

PART [4]2

[COOPERATION WITH AND] JUDICIAL ASSISTANCE TO COURT

Areas of cooperation and judicial assistance 14

Request for assistance in obtaining evidence 15

Examination of witnesses 16

Rights and privileges of witnesses before magistrate 17

Offences by witnesses 18

Attendance of witnesses in proceedings before Court 19

Transfer of prisoner to give evidence or to assist in investigations 20

Service of process and documents 21

Registration of restraint order 22

Effect of registration of restraint order 23

Setting aside of registration of restraint order 24

Registration of sentence or compensatory order 25

Effect of registration of sentence or compensatory order 26

Registration of confiscation order 27

Effect of registration of confiscation order 28

Setting aside of registration of confiscation order 29

Entry, search and seizure 30

Enforcement of sentence of imprisonment .. . . . . . . . . . . . . . . . . . . . . ....................... . . . . . . . . . . 31

[PART] CHAPTER 5

MISCELLANEOUS

President may enter into agreements 32

Admissibility of documents 33

Act not to limit provision of other assistance 34

Conversion of currencies 35

[Offences against administration of justice in terms of Statute] Jurisdiction of South African Courts in respect of offences................................... . . . ...... . . . . . . . . ........................................................... 36

Regulations 37

Amendment of laws .... . . . . . . . . . . . . . . . . . . . . . . ....... . . . . . . . . . . . . . . . . . ....................................38

Short title and commencement............................................................................................................. 39

[Schedule 1]

Schedule [2] 1

[PART] CHAPTER 1

DEFINITIONS, [ENACTMENT OF STATUTE AS PART OF SOUTH AFRICAN LAW AND] OBJECTS AND INTERPRETATION OF ACT

Definitions

1. In this Act, unless the context indicates otherwise—

(i) "Central Authority" means the Director-General: Justice and Constitutional Development;

(ii) "confiscation order" means any order issued by the Court aimed at recovering the proceeds of any crime or the value of such proceeds;

() "conventional international law" means any convention or treaty or other international agreement that is in force in and binding on the Republic;

(iii) "Court" means the International Criminal Court established by Article 1 of the Statute;

(iv) "crime" means [any crime referred to in Article 5 of the Statute] the crime of genocide, a crime against humanity and a war crime as defined in this section;

() "crime against humanity" means murder, extermination, enslavement, deportation, imprisonment, torture, sexual violence, persecution or any other inhumane act or omission that at the time and in/at the place of its commission, constitutes a crime against humanity according to customary international law, or conventional international law or by virtue of its being a crime according to the general principles of law recognised by the community of nations;

() "crime of genocide" means an act or omission committed with intent to destroy, in whole or in part, an identifiable group of persons, as such, that at the time and in/at the place of its commission, constitutes genocide according to customary international law or conventional international law or by virtue of its being a crime according to the general principles of law recognised by the community of nations;

(v) "magistrate" means a magistrate defined in section 1 of the Magistrates Act, 1993 (Act No. 90 of 1993);

[(vi) "Minister" means the Minister for Justice and Constitutional Development;]

(vii) "National Director" means the National Director of Public Prosecutions appointed in terms of section 179(1)(a) of the Constitution [of the Republic of South Africa,1996 (Act No. 108 of 1996)];

[(viii) "offence" means any offence against the administration of justice as contemplated in Article 70 of the Statute;]

() "offence" means an offence by any person against the administration of justice in respect of any matter over which the Court has jurisdiction, which is being or has been investigated or prosecuted by the Court, namely unlawfully and intentionally —

(a) giving false evidence when the person in question is under an obligation to tell the truth;

(b) presenting evidence that the person in question knows is false;

(c) influencing a witness, obstructing or interfering with the attendance or evidence of a witness, retaliating against a witness for testifying before the Court or destroying, tampering with or interfering with the gathering of evidence;

(d) impeding, intimidating or influencing an official of the Court for the purpose of forcing or persuading the official not to perform, or to perform his or her duties improperly;

(e) retaliating against an official of the Court on account of duties performed by that or another official; or

(f) soliciting or accepting a bribe as an official of the Court in connection with his or her official duties;

(ix) "prescribed" means prescribed by regulation in terms of this Act;

(x) "prisoner" means any person who is being detained in custody within or outside

any prison—

(a) to serve a sentence; or

(b) pending his or her trial or sentence for an offence committed under South African domestic law;

(xi) "property" means money or any other movable, immovable, corporeal or incorporeal thing and includes any interest thereon and all proceeds thereof:

(xii) "regulation" means a regulation made under this Act;

(xiii) "restraint order" means any order issued by the Court in respect of a crime or an offence within the jurisdiction of the Court, aimed at restraining any person from dealing with any property;

(xiv) "Rules" means the Rules of Procedure and Evidence referred to in Article 51 of the Statute;

() "the Constitution" means the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996);

(xv) "the Statute" means the Rome Statute of the International Criminal Court, adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 17 July 1998 and ratified by the Republic on 10 November 2000, [as set out in Schedule 1] as published in Government Gazette No. ;

(xvi) "this Act" includes the regulations;

() "war crime" means an act or omission committed during an armed conflict that, at the time and in/at the place of its commission, constitutes a war crime according to customary international law or conventional international law applicable to armed conflicts.

[Enactment of Statute as part of South African law

2. (1) The Statute applies in the Republic, subject to the provisions of this Act.

(2) The Minister may from time to time by notice in the Gazette amend Schedule 1 to reflect any changes made to the Statute if those changes are binding on the Republic in terms of section 231 of the Constitution of the Republic of South Africa,1996 (Act No. 108 of 1996)]

Objects of Act

[3.] 2. The objects of this Act are to—

(a) [make the Statute part of South African domestic law and to] create a framework to ensure that the Statute is effectively implemented in the Republic;

(b) ensure that anything done in terms of this Act conforms with the obligations

of the Republic in terms of the Statute;

(c) enable the Republic to cooperate with the Court in the investigation and prosecution of persons accused of having committed crimes or offences referred to in the Statute, and in particular to—

(i) enable the Court to make requests for assistance;

(ii) provide mechanisms for the surrender to the Court of persons accused of having committed a crime referred to in paragraph 1(a), (b) or (c) of Article 5 of the Statute;

(iii) enable the Court to sit in the Republic;

(iv) enforce any sentence imposed or order made by the Court;

(d) to enable any court referred to in section 166(c) to (e) of the Constitution or any military court to try and punish [offenders] persons who have committed [crimes or offences] a crime or an offence [referred to in the Statute] defined in section 1.

Interpretation of Act

3. Any competent court in the Republic hearing any matter arising from the application of this Act must consider and, where appropriate, may apply —

(a) conventional international law, and in particular the Statute;

(b) customary international law; and

(c) comparable foreign law.

[PART] CHAPTER 2

[APPLICATION OF ACT IN REPUBLIC AND] JURISDICTION OF SOUTH AFRICAN COURTS IN RESPECT OF CRIMES

[Application of Act and Statute] Jurisdiction of South African Courts in respect of crimes

4. (1) Despite anything to the contrary in this Act or any other law of the Republic, any person who commits a crime [contemplated in Article 5, read with Articles 6, 7, 8 and 9 of the Statute], defined in section 1, is guilty of an offence and is liable on conviction to a fine or imprisonment, including imprisonment for life, or such imprisonment without the option of a fine, or both a fine and such imprisonment.

(2) In order to secure the jurisdiction of any court referred to in section 166(c) to (e) of the Constitution for purposes of this [Act] Chapter, any person who commits a crime contemplated in subsection (1) outside the territory of the Republic, is deemed to have committed that crime in the territory of the Republic if—

(a) that person is a South African citizen; or

(b) that person is not a South African citizen but is ordinarily resident in the Republic; or

(c) that person, after the commission of the crime, is present in the territory of the Republic; or

(d) that person has committed the said crime against a South African citizen or against a person who is ordinarily resident in the Republic.

(3) No prosecution may be instituted in any court contemplated in section 166(c) to (e) of the Constitution or in any military court against a person referred to in [subsection (1) or (2)] this section without the consent of the National Director.

(4) The National Director must, in writing and in consultation with the Chief Justice of South Africa, designate a competent court to hear any matter arising from the application of this [Act] Chapter.

(5) If the National Director declines to prosecute a person under this section, he or she must, [in the prescribed manner] fully in writing, inform the Central Authority of the reasons for his or her decision and the Central Authority must forward that decision to the Registrar of the Court.

(6) A decision by the National Director not to prosecute a person under this section does not preclude the prosecution of that person in the Court.

CHAPTER 3

FUNCTIONING OF COURT IN SOUTH AFRICA AND PRIVILEGES AND IMMUNITIES OF COURT

Seat of Court in Republic

5. The President may, at the request of the Court and by proclamation in the Gazette, after consultation with the Chief Justice of South Africa, declare any place in the Republic to be a seat of the Court.

Privileges and immunities of Court

6. (1) The Court has such rights and privileges of a South African court of law in the Republic as may be necessary to enable it to perform its functions.

(2) The judges, the Prosecutor, the Deputy Prosecutors and the Registrar of the Court, when performing their functions in the Republic, are immune from the criminal and civil jurisdiction of the courts of the Republic and enjoy such immunities and privileges as are accorded a representative of another state or government in terms of section [3(3)] 4(2) of the Diplomatic Immunities and Privileges Act, [1989 (Act No. 74 of 1989)] 2001 (Act No. 37 of 2001).

(3) The Deputy Registrar, the staff of the Office of the Prosecutor and the staff of the Registry of the Court enjoy the privileges and facilities necessary for the performance of their functions in the Republic as may be published by proclamation in the Gazette in accordance with section [5] 7(2) of the Diplomatic Immunities and Privileges Act, [1989] 2001.

(4) The [Minister of Foreign Affairs] Cabinet member responsible for foreign affairs may, after consultation with the Minister and by notice in the Gazette, on such conditions as he or she considers necessary, confer immunities and privileges on any other member of the staff of the Court or any other person performing functions for purposes of this Act.

(5) The name of any person who enjoys immunities or privileges in terms of this section must be entered into the register contemplated in section [7(1)] 9(1) of the Diplomatic Immunities and Privileges Act, [1989] 2001, and sections [7(2) and (3)] 9(2) and (3) of that Act apply with the necessary changes.

Rights and privileges of witnesses in proceedings before Court

7. When evidence is given or any book, document or object is produced at any proceedings of the Court in the Republic, the law relating to privilege as applicable to a witness giving evidence or summoned to produce a book, document or object in a magistrate’s court applies.

[PART 3] CHAPTER 4

COOPERATION WITH AND ASSISTANCE TO COURT

PART 1

COOPERATION WITH COURT: ARREST OF PERSONS AND THEIR SURRENDER TO COURT

Endorsement of warrants of arrest

8. (1) Any request received from the Court for the arrest and surrender of a person[, received from the Court,]

(a) for whom a warrant of arrest has been issued by the Court must be referred to the Central Authority and accompanied by —

(i) [the documents referred to in Article 91(2)(a), (b) or (3) of the Statute,] information describing the person sought, sufficient to identify the person and information as to that person's probable location;

(ii) a copy of the warrant of arrest issued by the Court; and

(iii) [as well as] such other documents as may be necessary to satisfy a competent court in the Republic that there are sufficient grounds for the surrender of that person to the Court as contemplated in the Statute;

(b) already convicted must be referred to the Central Authority and accompanied by —

(i) a copy of any warrant of arrest for that person;

(ii) a copy of the judgment of conviction;

(iii) such information to indicate that the person sought is the person referred to in the judgment of conviction;

(iv) a copy of the sentence imposed, if the person sought has already been sentenced, as well as a statement of the period of imprisonment already served by that person if a sentence of imprisonment has been imposed; and

(v) such other documents as may be necessary to satisfy a competent court in the Republic that there are sufficient grounds for the surrender of that person to the Court as contemplated in the Statute.

(2) The Central Authority must immediately on receipt of that request, forward the request and accompanying documents to a magistrate, who must endorse the warrant of arrest for execution in any part of the Republic.

Provisional warrants of arrest

9. (1) Where the Central Authority receives a request from the Court[, as contemplated in Article 92 of the Statute,] for the provisional arrest of a person who is suspected or accused of having committed a crime [or offence] contemplated in the Statute or who has been convicted by the Court, the Central Authority must immediately forward the request to the National Director to apply for a warrant of arrest for that person.

(2) On an application by the National Director, or a person designated by him or her, stating under oath or affirmation that he or she has reason to believe that—

(a) the request of the Court has been made on grounds of urgency for the arrest of a person who is suspected or accused of having committed a crime [or offence] contemplated in the Statute or who has been convicted by the Court;

(b) a warrant of arrest or a judgment of conviction against the person in question exists;

(c) a formal request for the surrender of the person to the Court will be made later;

[(b)] (d) the person concerned is in or on his or her way to the Republic; and

[(c)](e) the purpose of the arrest is to bring the person concerned before the Court or to take him or her to a place where he or she is to undergo imprisonment under a sentence of the Court, as the case may be,

a magistrate may issue a warrant for the arrest of that person and notify the Central Authority that a warrant has been issued.

(3) Any warrant endorsed in terms of section 8 or issued in terms of subsection (2) must be in the form and executed in the manner as near as may be prescribed in respect of warrants of arrest in general by or under the laws of the Republic relating to criminal procedure.

Proceedings before competent court after arrest for purposes of surrender

10. (1) Any person who detains a person under a warrant of arrest or a warrant for his or her further detention must, within 48 hours after that person’s arrest or on the date specified in the warrant for his or her further detention, as the case may be, bring that person before a magistrate in whose area of jurisdiction he or she has been arrested or detained, whereupon that magistrate must hold an enquiry with a view to the surrender of that person to the Court, hold an inquiry in order to establish whether—

(a) the warrant applies to the person in question;

(b) the person has been arrested in accordance with the procedures laid down by this Act; and

(c) the rights of the person have been respected.

(2) The magistrate may at any time during the inquiry postpone that inquiry for purposes of consultation between the relevant authorities of the Republic and the Court [as contemplated in Article 97 of the Statute] where any problem is experienced with the execution of any request of the Court for cooperation or judicial assistance.

(3) The magistrate holding the enquiry must proceed in the manner in which a preparatory examination is held under Chapter 20 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), and has, for the purposes of holding the inquiry, the same powers as he or she would have had in respect of a preparatory examination so held, including the power to commit any person for further detention or to release such person on bail.

(4) (a) If, during the enquiry, a challenge is made to the effect that

(i) [regarding the jurisdiction of] the Court does not have jurisdiction to deal with the case; or

(ii) [the admissibility of a case, as contemplated in Article 19 of the Statute,] the case is being investigated or prosecuted by the competent authorities in the Republic or any other country;

(iii) the case has been investigated by the competent authorities in the Republic or any other country and a decision has been made not to institute criminal proceedings against the person concerned;

(iv) the person concerned has already been tried for the conduct which led to the institution of the inquiry;

(v) the case is not of sufficient gravity to justify further action by the Court,

the magistrate must record that challenge and [may] postpone the proceedings pending the decision of the Court regarding the challenge.

(b) Where the Court rejects the challenge, the magistrate must proceed with the enquiry.

(5) Any deposition, statement made under oath or an affirmation, whether or not it was made in the presence of the person referred to in subsection (1), or any document, record or judgment of conviction or any warrant issued by the Court, or any copy or sworn translation thereof, may be received in evidence at any such inquiry, but a copy or sworn translation thereof may only be received in evidence if such document is certified as a true copy or translation thereof by a judge of the Court or by a member of the staff of the Court authorised thereto by such judge.

(6) If, after considering the evidence adduced at the inquiry referred to in subsection (1), the magistrate is satisfied that the requirements of subsection (1)(a) to (c) have been complied with and that the person concerned may be surrendered to the Court—

(a) for prosecution in the Court for the alleged crime [or offence];

(b) for the imposition of a sentence by the Court for the crime [or offence] in respect of which the person has been convicted;

(c) to serve a sentence already imposed by the Court,

the magistrate must issue an order committing that person to prison pending his or her surrender to the Court.

(7) The magistrate issuing the order of committal contemplated in subsection (6) or postponing the inquiry as contemplated in subsection (2) or (4), must immediately forward to the Central Authority a copy of the order or request for a decision of the Court regarding the —

(a) problem identified as contemplated in subsection (2); or

(b) [jurisdiction of the Court or the admissibility of a case, as the case may be,] challenge made in terms of subsection (4),

together with any other necessary report.

(8) The inquiry contemplated in this section may be dispensed with if the person concerned agrees in writing to his or her surrender to the Court.

(9) (a) Any person against whom an order has been issued under subsection (6) may, within 15 days after the date of the order, appeal against such order to a High Court having jurisdiction.

(b) On appeal such High Court may make such order in the matter as it may deem fit.

(c) No order for the surrender of any person may be executed—

(i) before the period allowed for an appeal has expired, unless that person has waived his or her right of appeal in writing;

(ii) before such an appeal has been disposed of.

Removal of persons surrendered

11. (1) Any person in respect of whom an order to be surrendered has been given under section 10(6) or who agrees to his or her surrender, may be removed from the Republic in the custody of a person authorized by the Court to receive him or her and if the person escapes while being so removed, he or she may be arrested without a warrant by any person.

(2) Any person who—

(a) while being so removed, escapes or attempts to escape from custody; or

(b) rescues or attempts to rescue from custody any person being so removed,

is guilty of an offence and liable on conviction to imprisonment for a period not exceeding five years.

Entry and passage of persons in custody through Republic

12. Any person entering and passing through the Republic in custody by virtue of any warrant or order lawfully issued by the Court is, during his or her passage through the Republic, and despite any other law, deemed to be in lawful custody and[, as contemplated in Article 89 of the Statute,] may be held in any police cell, lock-up, prison or any other detention facility which may be designated by the [Minister] Cabinet member responsible for the administration of justice, in consultation with the [Minister of Correctional Services] Cabinet member responsible for correctional services or [of Safety and Security] for safety and security, as the case may be, for that purpose.

Discharge of persons not surrendered

13. (1) Where the Court informs the Central Authority that a person arrested in terms of this Act is no longer required to be surrendered to it or into the custody of a state for purposes of serving a sentence imposed by the Court, as the case may be, the Central Authority must inform the magistrate who ordered the surrender accordingly.

(2) The magistrate concerned must, on receipt of such notification, immediately cancel the order referred to in section 10(6).

PART [4] 2

[COOPERATION WITH AND] JUDICIAL ASSISTANCE TO COURT

Areas of cooperation and judicial assistance

14. The relevant competent authorities in the Republic must, subject to the domestic law of the Republic and the Statute, cooperate with, and render assistance to, the Court in relation to [the matters contemplated in Article 93 of the Statute] investigations and prosecutions in the following areas:

(a) The identification and whereabouts of persons or the location of items;

(b) the taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court;

(c) the questioning of any person being investigated or prosecuted;

(d) the service of documents, including judicial documents;

(e) facilitating the voluntary appearance of persons as witnesses or experts before the Court;

(f) the temporary transfer of persons in custody for purposes of identification or for obtaining testimony or other assistance;

(g) the examination of places or sites, including the exhumation and examination of grave sites;

(h) the execution of searches and seizures;

(i) the provision of records and documents, including official records and documents;

(j) the protection of victims and witnesses and the preservation of evidence;

(k) the identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and

(l) any other type of assistance which is not prohibited by law, with the view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.

Request for assistance in obtaining evidence

15. (1) A request by the Court for assistance in obtaining evidence in the Republic for use in the Court must be submitted in writing to the Central Authority.

(2) Upon receipt of such request the Central Authority must satisfy itself that—

(a) proceedings have been instituted in the Court; or

(b) there are reasonable grounds for believing that a crime has been committed within the jurisdiction of the Court; or

(c) an investigation in respect thereof is being conducted by the Prosecutor of the Court.

(3) For purposes of subsection (2), the Central Authority may rely on a certificate purporting to have been issued by a judge of the Court or the Prosecutor of the Court, confirming one or more of the requirements referred to in subsection (2).

(4) If the Central Authority is satisfied that one or more of the requirements as contemplated in subsection (2) have been complied with, it must submit the request contemplated in subsection (1) to the magistrate within whose area of jurisdiction the witness resides or is believed to be present as well as to the National Director.

Examination of witnesses

16. (1) The magistrate to whom a request has been forwarded in terms of section 15(4) must cause the person whose evidence is required, to be summoned to appear before him or her to give evidence or to produce any book, document, or object.

(2) A person referred to in subsection (1) must be summoned in the prescribed manner.

(3) Upon the appearance of that person, the magistrate must administer an oath to or accept an affirmation from him or her and take the evidence of that person upon interrogatories or otherwise, as if the said person were a witness in a competent South African court of law in proceedings similar to those in connection with which his or her evidence is required.

(4) Upon completion of the examination of the witness, the magistrate taking the evidence must as soon as possible transmit to the Central Authority the record of the evidence certified by him or her to be correct, together with a certificate setting out the costs incurred in connection with the execution of the Court's request, including any extraordinary costs which have emanated from the execution of that request.

(5) If the services of an interpreter were used at the examination of the witness, the interpreter must, in the prescribed manner, certify that he or she has translated truthfully and to the best of his or her ability and that certificate must accompany the documents referred to in subsection (4).

(6) The Central Authority must, on receipt of the documents referred to in subsections (4) and (5), submit them to the Registrar of the Court, indicating which costs emanating from the execution of the request, in its opinion, should be borne by the Court in terms of Article 100 of the Statute.

Rights and privileges of witnesses before magistrate

17. (1) In respect of the giving of evidence or the production of any book, document or object at an examination in terms of section 16, the laws of the Republic relating to privilege applicable to such a witness in a magistrate's court in similar proceedings apply.

(2) A person summoned to appear before a magistrate in terms of section 16 may be assisted by a legal practitioner in the proceedings contemplated in that section.

[(3) The provisions of Article 68 of the Statute apply with the necessary changes to a witness referred to in this section.]

Offences by witnesses

18. (1) Any person summoned to appear before a magistrate to give evidence or produce any book, document or object, who—

(a) without sufficient cause, fails to attend at the time and place specified or to remain in attendance until the conclusion of the examination or until he or she is excused from further attendance by the magistrate conducting the examination;

(b) refuses to be sworn or to make affirmation as a witness;

(c) having been sworn or having made an affirmation, fails to answer any question put to him or her satisfactorily;

(d) fails to produce any book, document or object in his or her possession or under his or her control, which he or she was summoned to produce,

is guilty of an offence and liable on conviction to a fine, or to imprisonment for a period not exceeding 12 months.

(2) Any person who, after having been sworn or having made an affirmation as contemplated in section 16(3), gives false evidence before a magistrate knowing such evidence to be false or not knowing or believing it to be true, is guilty of an offence and liable on conviction to the penalty which a competent South African court of law may impose for perjury.

Attendance of witnesses in proceedings before Court

19. (1) A summons issued by a judge of the Court or the Prosecutor of the Court for the attendance of any person in any proceedings before the Court, whether in the Republic or elsewhere, must be transmitted to the Central Authority by the person receiving it in the Republic.

(2) Upon receipt of such summons, the Central Authority must immediately transmit it to the magistrate within whose area of jurisdiction such person resides or is present.

(3) Upon receipt of the summons, the magistrate must, if satisfied that the summons was issued by the Court, endorse it for service upon such person, whereupon it may be served as if it were a summons issued out of the court of such magistrate in proceedings similar to those in connection with which it was issued.

(4) Any person summoned under this section who, without sufficient cause, fails to attend at the time and place specified in the summons, is guilty of an offence and liable on conviction to a fine, or to imprisonment for a period not exceeding 12 months.

(5) Any magistrate's court within whose area of jurisdiction the summons has been served or the person summoned resides, has jurisdiction to try such person for a contravention of subsection (4).

(6) For the purposes of subsection (4), a return of service indicating that the summons was served properly on the person concerned, together with a certificate by a judge of the Court, to the effect that such person failed to appear at the time and place specified in the summons, is prima facie proof that the said person failed to appear as contemplated in that subsection.

Transfer of prisoner to give evidence or to assist in investigations

20. Despite any other law—

(a) where the Central Authority receives a request from the Court or the Prosecutor of the Court for the transfer of a prisoner in the Republic into the custody of the Court, for the purpose of giving evidence or assisting in an investigation, the Central Authority must transmit the request to the [Minister of Correctional Services] Cabinet member responsible for correctional services;

(b) if the prisoner consents to the transfer, the Commissioner of Correctional Services or any person authorised thereto by him or her in writing may issue the prescribed warrant for the transfer of the prisoner, into the custody of the Court in accordance with the arrangements made by the [Minister of Correctional Services] Cabinet member responsible for correctional services with the Registrar or the Prosecutor of the Court;

(c) any period of imprisonment served in the custody of the Court, by a prisoner transferred under this section, must be regarded as a period of imprisonment served in the Republic for purposes of calculating the remaining term of imprisonment of that person; and

(d) the Commissioner of Correctional Services must, where it appears that the term of imprisonment of the transferred prisoner will expire while that prisoner is still in the custody of the Court, in writing inform the Registrar of the date on which that term of imprisonment will expire.

Service of process and documents

21. (1) Upon receipt of a request by the Court for assistance in effecting the service of process or documents, except a summons contemplated in section 19(1), the Central Authority must send the request, together with the process or documents, to the National Commissioner of the South African Police Service for service on the person concerned.

(2) The National Commissioner of the South African Police Service must cause the process or documents to be served on the person concerned in the manner specified in the request.

(3) The National Commissioner of the South African Police Service must send the return of service to the Central Authority for transmission to the Court.

Registration of restraint order

22. (1) When the Central Authority receives a request from the Court for assistance in enforcing a restraint order in the Republic, it may lodge with the registrar of the High Court in whose area of jurisdiction the property is situated or present a certified copy of such order if the Central Authority is satisfied that the order is not subject to any review or appeal and that the request [contains the documents and information contemplated in paragraph 2 of Article 96 of the Statute] is supported by the following:

(a) A concise statement of the purpose of the request, including the legal basis and the grounds for the request;

(b) as much information as possible about the location or identification of the property in question;

(c) a concise statement of the essential facts underlying the request;

(d) the reasons for and details of any procedure or requirement to be followed;

(e) any other information that is available and may be relevant in the circumstances.

(2) The registrar with whom a certified copy of a restraint order is lodged in terms of subsection (1), must in the prescribed manner, register such order in respect of the property which is specified therein.

(3) The registrar registering a restraint order must immediately give notice in writing to the person against whom the order has been made that the —

(a) order has been registered at the High Court concerned; and

(b) said person may, within the prescribed period and in the prescribed manner, apply to that court for the setting aside of the registration of the order.

(4) (a) Where the person against whom the restraint order has been made is present in the Republic, the notice contemplated in subsection (3) must be served on such person in the prescribed manner.

(b) Where the said person is not present in the Republic, he or she must be informed of the registration of the restraint order in the prescribed manner.

Effect of registration of restraint order

23. When any restraint order has been registered in terms of section 22, that order has the effect of a restraint order made by that High Court under the Prevention of Organised Crime Act, 1998 (Act No. 121 of 1998).

Setting aside of registration of restraint order

24. (1) The registration of a restraint order in terms of section 22 must, on the application of the person against whom the order has been made, be set aside if the court at which the order was registered is satisfied that the —

(a) order was registered contrary to a provision of this Act;

(b) order is subject to review or appeal;

(c) sentence or order in support of which the restraint order was made, has been satisfied in full.

(2) The court hearing an application referred to in subsection (1) may at any time postpone the hearing of the application to such date as it may determine.

Registration of sentence or compensatory order

25. (1) When the Central Authority receives a request from the Court for assistance in the Republic to recover a fine to which a person has been sentenced in criminal proceedings in the Court, or for the execution of an order for the payment of compensation for damages to any person made in such proceedings, the Central Authority must submit the request to the [Minister] Cabinet member responsible for the administration of justice for approval if the Central Authority is satisfied that the —

(a) sentence or order is final and not subject to review or appeal;

(b) person on whom the sentence was imposed or against whom the order was made, had the opportunity of defending himself or herself;

(c) sentence or order cannot be satisfied in full except by confiscating and realising property; and

(d) person concerned holds property in the Republic.

(2) Upon receiving the [Minister's] approval of the Cabinet member responsible for the administration of justice for execution of the sentence or compensatory order in the Republic, the Central Authority must lodge with the clerk or registrar, as the case may be, of a court in the Republic having jurisdiction, a certified copy of the document confirming the sentence or order and such clerk of the court or registrar must thereupon, in the prescribed manner, register the sentence or order and the amount payable thereunder as reflected in the said document.

(3) The clerk of the court or registrar, as the case may be, must immediately, in the prescribed manner, give written notice of the registration of the sentence or order to the person on whom it was imposed or against whom it was made or who has effective control over the relevant property in the Republic.

Effect of registration of sentence or compensatory order

26. (1) When a sentence or compensatory order has been registered in terms of section 25, that sentence or order has the effect of a civil judgment of the court at which it has been registered, for the amount reflected therein in favour of the Republic, as represented by the [Minister] Cabinet member responsible for the administration of justice.

(2) The Central Authority, subject to any agreement or arrangement between the Court and the Republic, must pay over to the Court any amount realised in the execution of a registered sentence or order, less all expenses incurred in connection with the execution of such sentence or order.

Registration of confiscation order

27. (1) When the Central Authority receives a request for assistance in executing a confiscation order in the Republic made by the Court, it must submit that request to the [Minister] Cabinet member responsible for the administration of justice for approval, if the Central Authority is satisfied that the —

(a) order is final and not subject to review or appeal;

(b) person against whom the order was made had the opportunity of defending himself or herself;

(c) order cannot be satisfied in full except by confiscating and realising property;

(d) order is enforceable by the Court;

(e) person concerned holds property in the Republic; and

(f) request [contains the documents and information contemplated in paragraph 2 of Article 96 of the Statute] is supported by the following:

(i) A concise statement of the purpose of the request, including the legal basis and the grounds for the request;

(ii) as much information as possible about the location or identification of the property in question;

(iii) a concise statement of the essential facts underlying the request;

(iv) the reasons for and details of any procedure or requirement to be followed;

(v) any other information that is available and may be relevant in the circumstances.

(2) Upon receiving the [Minister's] approval of the Cabinet member responsible for the administration of justice of the request contemplated in subsection (1), the Central Authority must lodge with the clerk or registrar, as the case may be, of a court in the Republic having jurisdiction, a certified copy of such confiscation order.

(3) When a certified copy of a confiscation order is lodged with a clerk or registrar of a court, that clerk or registrar must, in the prescribed manner, register the confiscation order where the order was for the —

(a) payment of money, in respect of the balance of the amount payable thereunder; or

(b) recovery of particular property, in respect of the property which is specified therein.

(4) The clerk or registrar of the court registering a confiscation order must immediately issue a notice in writing, addressed to the person against whom the order has been made, to the effect that the —

(a) order has been registered at the court concerned; and

(b) said person may, within the prescribed period and in the prescribed manner, apply to that court for the setting aside of the registration of the order.

(5) (a) Where the person against whom the confiscation order has been made is present in the Republic, the notice contemplated in subsection (4) must be served on such person in the prescribed manner.

(b) Where the said person is not present in the Republic, he or she must be informed of the registration of the confiscation order in the prescribed manner.

Effect of registration of confiscation order

28. (1) When any confiscation order has been registered in terms of section 27, such order has the effect of a civil judgment of the court at which it has been registered in favour of the Republic, as represented by the [Minister] Cabinet member responsible for the administration of justice.

(2) A confiscation order registered in terms of section 27 may not be executed before the expiry of the period within which an application in terms of section 27(4)(b) for the setting aside of the registration may be made, or if such application has been made, before the application has been finally decided.

(3) The Central Authority must, subject to any agreement or arrangement between the Court and the Republic, pay over to the Court any amount recovered in terms of a confiscation order registered in terms of section 27, less all expenses incurred in connection with the execution of such order.

Setting aside of registration of confiscation order

29. (1) On the application of any person against whom the registration of a confiscation order in terms of section 27 has been made, such registration may be set aside if the court at which it was registered is satisfied that the —

(a) order was registered contrary to a provision of this Act;

(b) order is subject to review or appeal;

(c) person against whom the order was made, through no fault on his or her part, did not appear at the proceedings concerned or did not receive notice of the said proceedings as prescribed by the Statute or Rules or, if no such notice has been prescribed, that he or she did not receive reasonable notice of such proceedings so as to enable him or her to defend himself or herself at the proceedings; or

(d) order has already been satisfied.

(2) The court hearing an application referred to in subsection (1) may at any time postpone the hearing of the application to such date as it may determine.

Entry, search and seizure

30. (1) The Court or the Prosecutor of the Court must submit any request for assistance in the entering and searching of premises, the search of a person and the seizure of a book, document or object that has a bearing on a crime or an offence committed within the jurisdiction of the Court, to the Central Authority in writing.

(2) The request must contain sufficient information under oath or by way of affirmation that there are reasonable grounds for believing that the entry, search or seizure of the book, document or object has a bearing on a crime or an offence committed within the jurisdiction of the Court or that such entry, search or seizure of a book, document or object is necessary to determine if such a crime or such an offence has been so committed and that an investigation in respect thereof is being conducted by the Prosecutor of the Court.

(3) On receipt of such request, the Central Authority must forward the request to the National Commissioner of the South African Police Service or a person designated by him or her for that purpose, with a view to obtaining the necessary warrant required in the circumstances.

(4) A magistrate or judge of the High Court may, if it appears to such magistrate or judge from the information submitted that there are reasonable grounds for believing that any book, document or object which has a bearing on the investigation concerned, is in the possession or under the control of any person or on or in any premises within such magistrate’s or judge’s area of jurisdiction, issue the necessary warrant required in the circumstances.

(5) The warrant must clearly specify the acts which may be performed thereunder by the police officer to whom it is issued.

(6) The warrant remains valid until—

(a) it is executed;

(b) it is cancelled by the person who issued it or by any person with similar authority;

(c) the expiry of three months from the date of its issue; or

(d) the purpose for which the warrant was issued no longer exists,

whichever may occur first.

(7) A police officer must, immediately before executing the warrant —

(a) identify himself or herself to the person referred to in the warrant or the owner or person in control of the premises, if such person is present;

(b) hand to such person a copy of the warrant or, if the person is not present, affix that copy to a prominent place on the premises; and

(c) supply such person at his or her request with particulars regarding his or her authority to execute the warrant.

(8) An entry, search and seizure under this section must be—

(a) conducted with strict regard to decency and order, including the protection of a person’s right to dignity, freedom, security and privacy; and

(b) executed by day unless the execution thereof by night is justifiable and necessary.

(9) The seizure of a book, document or object under this section must be effected by removing it from the premises concerned or, if that removal is not reasonably practicable, by sealing or otherwise safeguarding it on or in the premises.

(10) A police officer who may under this section enter and search any

premises—

(a) must, immediately before the entry, audibly demand admission to the premises and make known the purpose of the entry and search, unless there are reasonable grounds for believing that a book, document or object in respect of which the search is being conducted, may be destroyed, disposed of or tampered with if that admission is first demanded and that purpose is made known;

(b) may use the force that is reasonably necessary to overcome resistance to the entry or search or the seizure of a book, document or object under this section;

(c) may utilize or request the assistance of any person to identify any book, document or object which has a bearing on the alleged crime or offence or to conduct the entry or search or the seizure of any book, document or object under this section.

(11) A person from whose possession or control a book, document or object has been removed under this section may, at his or her own expense and under the supervision of a police officer, make copies thereof or excerpts therefrom.

(12) A police officer who removes a book, document or object from any premises under this section must issue a receipt to the person who is the owner or in possession or in control thereof or, if that person is not present, affix it to a prominent place on the premises.

(13) If, during the conduct of a search or the carrying out of a seizure under this section, a person claims that a book, document or object found on or in the premises contains privileged information and refuses the examination or removal of the book, document or object, the police officer conducting the search or carrying out the seizure must, if he or she is of the opinion that the book, document or object contains information which has a bearing on the alleged crime or offence, seize the book, document or object and submit it to the registrar of the High Court having jurisdiction for safe custody until a court of law has made a ruling on the question whether the information is privileged or not.

(14) If the information is found not to be privileged, the book, document or object seized under this section must be handed over to the Court or Prosecutor of the Court, as the case may be.

(15) If criminal proceedings, in respect of which a book, document or object has been seized under this section, are not instituted within a reasonable time after the seizure or, if it appears that the book, document or object is not required in criminal proceedings for the purposes of evidence or an order of the Court, the Central Authority must request the Court or Prosecutor of the Court to return such book, document or object to the person from whom it was seized.

Enforcement of sentence of imprisonment

31. (1) If the Court[, in terms of paragraph 1 of Article 103 of the Statute,] designates the Republic as a State in which a person upon whom the Court has imposed a sentence of imprisonment must serve that sentence, it must inform the Central Authority as soon as possible of such designation.

(2) The Central Authority must forward such designation to the [Minister of Correctional Services] Cabinet member responsible for correctional services who may, despite any contrary provisions of any other law and on the conditions the Central Authority deems fit, accept the Court’s designation and inform the Central Authority accordingly.

(3) (a) Where the Court accepts any such conditions, any person upon whom the Court has imposed a sentence of imprisonment must, subject to [Article 104 of the Statute] paragraph (b), be committed to a prison in the Republic and a warrant for his or her detention lawfully issued by the Court is deemed to be a valid warrant for the purposes of section 6 of the Correctional Services Act, 1998 (Act No. 111 of 1998).

(b) If the Court, at any time, decides to transfer a sentenced person referred to in paragraph (a) to a prison of another State, the Central Authority must, in consultation with the Commissioner of Correctional Services and the Registrar of the Court, arrange for the removal of that person from the Republic in the custody of a person authorised by the Court and the provisions of section 11 apply with the necessary changes.

(4) (a) Subject to [Articles 105 and 106 of the Statute] paragraphs (b) and (c), [a person contemplated in subsection (3) is subject to] the provisions of the Correctional Services Act, 1998, and the domestic law of the Republic apply to a person contemplated in subsection (3).

(b) The sentence of imprisonment referred to in subsection (3)(a) may only be modified by the relevant authorities in the Republic at the request of the Court, as a result of an appeal by the person serving the sentence to, or review by, the Court in terms of its Rules.

(c) The relevant authorities in the Republic must, as far as possible, ensure that communications between persons serving a sentence as contemplated in subsection (3)(a) and the Court can take place freely and confidentially.

[PART] CHAPTER 5

MISCELLANEOUS

President may enter into agreements

32. (1) The President, as head of the national executive, may, on such conditions as he or she deems fit, enter into any agreement with the Court, including any agreement relating to the provision of assistance to the Court and he or she may agree to any amendment or revocation of such agreement.

(2) The provisions of section 231 of the Constitution apply to an agreement referred in subsection (1).

(3) Any agreement contemplated in subsection (1) and any amendment or revocation thereof must be published by the [Minister] Cabinet member responsible for the administration of justice by notice in the Gazette.

Admissibility of documents

33. Any deposition, affidavit, record of any conviction or any document confirming any order of the Court or any copy or sworn translation thereof, may be received in evidence at any proceedings in terms of a provision of this Act if it is—

(a) authenticated in the manner in which foreign documents are authenticated to enable them to be produced in any court in the Republic; or

(b) signed by a judge of the Court or any person authorised thereto; or

(c) authenticated in the manner provided for in any agreement with the Court.

Act not to limit provision of other assistance

34. Nothing in this Act may be construed so as to prevent or abrogate or derogate from any arrangement or practice for the provision of assistance to the Court otherwise than in the manner provided for by this Act.

Conversion of currencies

35. If any amount payable in terms of an order registered under section 25 or 27, is expressed in a currency other than that of the Republic, such amount must be converted into the currency of the Republic on the basis of the exchange rate which prevailed on the date on which the order in question was registered in the Republic.

[Offences against administration of justice in terms of Statute] Jurisdiction of South African Courts in respect of offences

36. Any person who [contravenes a provision of Article 70 of the Statute] commits an offence as defined in section 1 of this Act

[(a) in the Republic;

(b) outside the territory of the Republic and who—

(i) is a South African citizen;

(ii) is not a South African citizen but who is ordinarily resident in the Republic;

(iii) after the commission of the offence, is present in the territory of the Republic,]

is guilty of an offence and is liable on conviction to a fine or imprisonment for a period not exceeding five years, or to both a fine and such imprisonment.

Regulations

37. (1) The [Minister] Cabinet member responsible for the administration of justice may make regulations—

(a) with regard to the proof of any matter for the purposes of this Act;

(b) prescribing any matter which must or may be prescribed under this Act;

(c) providing for any matter which it may be necessary or expedient to prescribe with a view to achieving the objects of this Act;

(d) to give effect to any provision of the Statute.

      1. A regulation made under subsection (1) may prescribe a penalty

of a fine or of a period of imprisonment for a period not exceeding 12 months for any contravention thereof or failure to comply therewith.

Amendment of laws

38. The laws referred to in Schedule [2] 1 are hereby amended to the extent indicated in the third column thereof.

Short title and commencement

39. This Act is called the Implementation of the Rome Statute of the International Criminal Court in South Africa Act, [2001] 2002 and comes into operation on a date fixed by the President by proclamation in the Gazette.

SCHEDULE [2] 1

LAWS [REPEALED OR] AMENDED

(Section [40]38)

 

No. and year of law

Short title

Extent of [repeal or] amendment

Act No. 51 of 1977

Criminal Procedure Act, 1977

The amendment of section 18 by the addition after paragraph (f) of the following paragraph:

" (g) [the crime of genocide, crimes against humanity, war crimes and the crime of aggression, as contemplated in section 4 ofthe International Criminal Court Act, 2001.] a crime as defined in section 1 of the Implementation of the Rome Statute of the International Criminal Court in South Africa Act, 2002".

Act No. 16 of 1999

Military Discipline Supplementary Measures Act, 1999

The amendment of section 3 by the addition after subsection (3) of the following subsection:

" (4) When a person who is subject to the Code is suspected of having committed a crime [or an offence contemplated] defined in section [4] 1 of the Implementation of the Rome Statute of the International Criminal Court in South Africa Act, [2001] 2002, whether in or outside the Republic, the matter must be dealt with in accordance with that Act.".

ATTACHMENT

ALTERNATIVE DEFINITIONS OF THE CRIMES CONTEMPLATED IN CLAUSE 1 OF THE BILL:

"a crime against humanity" means any act [or omission which —

(a) is intended to cause great suffering or serious bodily or mental harm/injury;

(b) is committed as part of a widespread or systematic attack directed against any civilian population; and

(c) at the time and place of its commission, constitutes a crime against humanity according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognised by the community of nations,

including the following:

(i) Murder;

(ii) extermination;

(iii) enslavement;

(iv) deportation or the forcible transfer of persons;

(v) imprisonment or any other severe deprivation of physical liberty in violation of fundamental rules of international law;

(vi) torture;

(vii) rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation or any other form of sexual violence of comparable gravity;

(viii) persecution against any identifiable group on political, racial, national, ethnic, cultural, religious, gender or other grounds that are universally recognised as prohibited under international law, which manifests itself as an act referred to in this definition or as an act referred to in the definition of any other crime contemplated in this section;

(ix) the enforced disappearance of persons; or

(x) the crime of apartheid;

"genocide" means an act or an omission which -

(a) is committed with the intention to destroy, in whole or in part, a group of persons on the grounds of the nationality, ethnicity, race, or religion of that group of persons, by -

(i) killing members of the group;

(ii) causing serious bodily or mental harm/injury to members of the group;

(iii) deliberately inflicting conditions of life on the group or members thereof, calculated to bring about the group's physical destruction in whole or in part;

(iv) imposing measures intended to prevent births within the group; or

(v) forcibly transferring children of the group to another group; and

(b) at the time and place of its commission, constitutes genocide according to customary international law or conventional international law or by virtue of its being criminal according to the general principles of law recognised by the community of nations;

 

"a war crime" means any act or omission which

(a) constitutes -

(i) a grave breach of the Geneva Conventions of 12 August 1949;

(ii) a serious violation of the laws and customs applicable in international armed conflict, within the established framework of international law;

(iii) a serious violation of Article 3 common to the four Geneva Conventions of 12 August 1949, in the case of an armed conflict not of an international character, against persons not taking an active part in the hostilities in question, including members of armed forces who have laid down their arms and those persons who are placed hors de combat by sickness, wounds, detention or any other cause, but excludes internal disturbances and tensions such as riots and isolated or sporadic acts of violence or other acts of a similar nature; or

(iv) a serious violation of the laws and customs applicable in armed conflicts not of an international character within the established framework of international law, but excludes internal disturbances and tensions such as riots and isolated or sporadic acts of violence or other acts of a similar nature; and

(b) at the time and the place of its commission, constitutes a war crime according to customary international law or conventional international law applicable to armed conflicts or by virtue of its being criminal according to the general principles of law recognised by the community of nations.