OFFICE OF THE CHIEF STATE LAW ADVISER (INTERNATIONAL LAW) DEPARTMENT OF FOREIGN AFFAIRS

RATIFICATION OF THE FINAL ACTS AND DECISIONS OF THE 1999 BEIJING CONGRESS: UNIVERSAL POSTAL UNION

1 Your request for legal advice dated 30 September 2003 bears reference.

2 The State Law Adviser (IL) has scrutinized the Acts and Decisions of the Congress. This Office further remark as follows:

3 Ad General comment

South Africa has signed both the Constitution and the Convection of the Universal Postal Union on 10 July 1964 (prior to the amendment). Suffice it is to mention that the Decisions and the Acts of the Congress merely extended the scope of application of the Constitution and the Convention. It regulates matters, which were not previously catered for, and serves to facilitate the organization and improvement of postal service in an acceptable manner for the benefit of all member countries. We are therefore of the opinion that these additions and amendments are not in conflict with South Africa's international obligations. The Regulations of the Union provide that for parties to have; a right to vote they must be member States of the Universal Postal Union. Therefore if South Africa wishes to have voting rights arid fully participate in the Universal Postal Union it must ratify the Constitution of the Union.

4 The Constitution of the Universal Postal Union falls within the ambit of section 231(2) of the Constitution of the Republic of South Africa (Act No 108 of 1996). In terms of this section. " 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)." Therefore parliamentary approval is required in this regard. The line function department must prepare an Explanatory Memorandum as well as the President Minute to obtain the President’s signature. Accompanying these documents must be the legal advises from Justice and Foreign Affairs as well as original or certified copies of the final text of the Agreement. These documents must be submitted to this Office for certification whereafter they must be forwarded to the Presidency. The Agreement will have to be remitted to the cabinet by way of a Cabinet's Memorandum to obtain the cabinet's consent to submit the Agreement before parliament. Thereafter obtaining the

EXPLANATORY MEMORANDUM ON THE RATIFICATION, OF THE FINAL ACTS AMD THE DECISIONS OF THE PLENIPOTENTIARY CONFERENCE (1999, BEIJING CONFERENCE)- UNIVERSAL POSTAL UNlON

The Universal Postal Union is an intergovernmental organization in which member countries, having well-defined rights and obligations, co-operate for the fulfilment of the objectives of the Union. The Union was founded in 1874 to encourage collaboration and development within the international postal sector. South Africa has maintained an active involvement in the Universal Postal Union since our admission to the Union in 1994.

The Plenipotentiary Council is a permanent body of UPU and meets every five years. It rnay consider and adopt, if appropriate, proposals for the amendments to the UPU Constitution put forward by member countries. It ensures continuity of work between congresses, supervises UPU activities and studies regulatory, legal and legislative issues. It also deals with the operational, economic and commercial aspects of international postal services. The Plenipotentiary congress aims to assist postal administrations to modernize the postal services. formulate regulations and take advantage of technological development and financial services.

The Constitution of the Universal Postal Union

The plenipotentiaries of Governments of member countries of the UPU met in Congress at Beijing in view of Article 30, paragraph 2, of the constitution of the UPU concluded in Vienna on 10 July 1964, and have adopted subject to ratification the following amendments to the Constitution:

Article, 22, which will ensure that the general regulations shall be binding on all member countries. Article 25 is also amended to provide for the people responsible for the signature, authentication, ratification and other forms of approval of the Acts by the Union Article 29 was also amended and it now gives mernber countries a right to present, either to congress or between congresses, proposals concerning the Acts of the Union. Another to the constitution is an article that gives member countries a right to accede to any additional protocol and to the other Acts of the Union at any time.

General Regulations of the Universal Postal Union

The General Regulations have been drawn to secure the application of the Constitution and the functioning of the Union. The Regulations of the Union further make provision that, for parties to have a right to vote, they must be member States of the Universal Postal Union. Therefore for South Africa to have voting rights and fully participate in the Universal Postal Union, it must ratify the Constitution of the Union.

The Acts and Decisions have been concluded and agreed upon by UPU member Countries for securing the application of the Constitution and the general functions of the Union.

The next Plenipotentiary Conference will take place in Bucharest, Romania in September 2D04 and South Africa will not be able to vote without approval of the Final Acts and Decisions of the Plenipotentiary Conference (Beijing, 1999) by Parliament.

In terms of Section 231 (2) of the Constitution, parliament is requested to ratify the Final Acts and the Decisions of the Plenipotentiary Conference (1999, Beijing Conference)- Universal Postal Union. The Department of Justice and Foreign Affairs have expressed the view that this instruments do not conflict with the domestic law and the international obligations of the Republic of South Africa cabinet's consent the agreement will have to be brought before parliament accompanied by the above mentioned documents, by way of notice of motion. After authorization by parliament to conclude the agreement, the line function department will have to prepare an instrument of ratification. The Department of Foreign Affairs can assist in that regard .The instrument of ratification has to be submitted to the Minister of Foreign Affairs for signature as well as the original or certified copy of the agreement must be deposited with the Treaty Section Department of Foreign Affairs.

5 Should you. have any queries in this regard please do not hesitate to contact us

SIVUYILE MAQUNGO PRINCIPAL STATE LAW ADVISER (IL)

06 OCTOBER 2003 PRETORIA