NATIONAL ASSEMBLY AND NATIONAL COUNCIL OF PROVINCES
RATIFICATION OF THE EXTRADITION AND MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS TREATIES BETWEEN THE REPUBLIC OF SOUTH AFRICA AND THE REPUBLIC OF INDIA IN TERMS OF SECTION 231(2) OF THE CONSTITUTION OF THE REPUBLIC OF SOUTH AFRICA ACT, 1996 (ACT NO 108 OF 1996)
1. PURPOSE
The purpose of this memorandum is to set out the background and to seek Parliament's approval to ratify the above mentioned Treaties in terms of section 231(2) of the Constitution.
2. BACKGROUND
2.1 The Extradition Act, inter alia, provides in section 2(1)(a) that the President may on such conditions as he may deem fit but subject to the provisions of the Act, enter into an agreement with any foreign state, other than a designated state, providing for the surrender on a reciprocal basis of persons accused or convicted of the commission within the jurisdiction of the Republic or such state or any territory under the sovereignty or protection of such state, of an extraditable offence or offences specified in such agreement and may likewise agree to any amendment or revocation of such agreement. A similar provision exists in section 27(1) of the International Cooperation Act.
2.2 Section 2(3)(a) of the Extradition Act subsequently states that no such agreement or any amendment thereof shall be of any force or effect until the ratification of, or amendment of such agreement, or designation has been agreed to by Parliament. Section 27(2) of the International Cooperation Act equally states that the Minister shall as soon as practical after Parliament has agreed to the ratification, or accession to, or amendment, or revocation of an agreement referred to in section 27(1), 9ive notice thereof in the Gazette.
2.3 The President approved on 17 October 2003 that the Minister for Justice and Constitutional Development sign the Treaties with the Republic of India on behalf of the Government.
2.4 In terms of article 23 of the Extradition Treaty and article 24 of the Mutual Legal Assistance in Criminal Matters Treaty, the respective Treaties shall enter into force upon the exchange of the instruments of ratification.
2.5 Section 231(2) of the Constitution provides as follows:
'An international agreement binds the Republic on/y after it has been approved by resolution in both National Assembly and the National Council of Provinces, unless it is an agreement referred to in subsection 3.,,.
2.6 As soon as Parliament has approved the ratification of the Treaties, the Minister for Justice and Constitutional Development will give notice thereof in the Gazette in terms of section 2(3)ter of the Extradition Act and section 27(2) of the International Cooperation Act.
3. RECOMMENDATION
In the light of the above and also to indicate to the rest of the world that South Africa won't be a safe haven for criminals, it is recommended that Parliament approve the ratification of the said Treaties.