However, please be advised of the South African Constitutional provisions pertaining to the aforesaid Protocol. Section 231 of the South African Constitution (Act No. 108, 1996) regulates the application of international agreements in the Republic. Section 23 1(2) of the Constitution provides that "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)" The Protocol under discussion falls within the purview of section 231(2) of the Constitution and is thus binding on the Republic upon approval by the National Assembly and the National Council of Provinces.

You are further advised of the provisions of section 231(1) of the Constitution, which state that "[t]he negotiating and signing of all international agreements is the responsibility of the national executive"' This therefore means that the President of the Republic as head of the National Executive must, with the concurrence of the relevant Minister, approve the negotiating and signing of agreements on behalf of South Africa. However since the current agreement is not subject to signature but adoption and was duly adopted at the last Extraordinary session of the Assembly after being approved by the Extraordinary Executive Council section 231(1) of the Constitution has been satisfied. The Protocol must now be submitted to Cabinet for approval and then to Parliament for ratification.

Article 32 of the Constitutive Act of the African Union provides that the Amendments shall enter into force thirty (30) days after the deposit of the instruments of ratification with the Chairman of the Commission by a two thirds majority of the Member States, This therefore means that even if South Africa ratifies the Protocol it will enter into force for South Africa thirty days after two-thirds of Member States have ratified. The steps that need to be followed for the process of ratification is that a Cabinet Memorandum must be prepared recommending that Cabinet approves that Parliament ratify the Protocol. The opinion of the Chief State Law Advisers of the Department of Justice regarding consistency with domestic law arid the constitution must be obtained before ~e Protocol is submitted to Cabinet. A ratification instrument will have to be prepared for deposit with the African Union as soon as Parliament has approved the Protocol. We have taken the liberty of eliciting the comments of the Department of Justice and suggest that you proceed to prepare the Cabinet Memorandum and submission to the Minister in anticipation of a positive response from the Department of Justice.

Please do not hesitate to call upon us for further assistance with regard to this matter.