NATIONAL ASSEMBLY AND NATIONAL COUNCIL OF PROVINCES

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.