International Legal Obligations
Scope of Work
International human rights law
Another area of treaty law is the regional and international human rights instruments (international human rights law). There are obligations arising from these instruments. In the main States are required to transform their domestic law in line with the instruments and that they must develop and present reports on the implementation of these instruments. Bilateral arrangements taking the form of agreements or MOUs can be concluded. There is one in the making between South Africa and Brazil aimed at cooperation in the fight against racism.
The Chief Directorate: International Legal Relations’ responsibility is to negotiate these instruments, in consultation with relevant stake holders in the Department such as Chief Directorate: Constitutional Development, Directorate: Gender and the Chief Directorate: Vulnerable Groups. It must consult with Government Departments through the Department of Foreign Affairs, which often lead the South African delegations. The Chief Directorate: Constitutional Development is responsible for the implementation of these instruments, in particular those falling under the DoJ&CD; and should play an oversight role regarding the implementation of other instruments administered by other government departments. The Foundation for Human Rights (FHR), as implementation arm of the Department, has a role to play as well. The National Human Rights Institutions play an overall oversight role regarding the implementing of these instruments. Cabinet has established the National Forum Against Racism (NFAR) with the mandate of making a follow-up on the Declaration and Programme of Action of the World Conference Against Racism held in Durban in August/September 2001. The Secretariat of the NFAR has been set up and its mandate, inter alia, is to develop a National Action Plan Against Racism. The Secretariat is located in the Chief Directorate: Constitutional Development. A draft National Action Plan to Combat Racism Racial Discrimination, Xenophobia and Related Intolerance has been prepared. The function of coordinating the development of country reports rests with the Chief Directorate: International Legal Relations. It consults relevant departments in respect of specific instruments. Although the Chief Directorate ensured the development of some reports, there is still a need for capacity on report writing. The Chief Directorate further deals with the Human Rights resolutions in consultation with relevant role players (the major role player is DFA through our Mission in Geneva). It is noted that the reports on the Convention on the Rights of the Child (CRC) and Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) are prepared by the Youth Office and Office of Status for Women in the Presidency.
ICC and other International Courts
Humanitarian law is that law which applies during wartime and times of conflict, whether internal or international. The International Criminal Court is independent in that it is established by the Rome Statute of the International Criminal Court (ICC) adopted by the Conference of Plenipotentiary (UN Members present at this Conference adopted the Statute). The ICC is serviced by the Assembly of States Parties (ASP). This Court has a relationship with the UN notwithstanding its independence. For instance some referrals to the Court must be done by the UN Security Council apart from State Parties. In contrast the International Criminal Tribunals of the Rwanda and former Yugoslavia (ICTY and ICTY) referred to above are creatures of the Security Council.
The DoJ&CD has a major role to play regarding these International Tribunals, including those falling under SADC and AU. In the main the DoJ&CD is looking up to these tribunals regarding the training of our judges and exchange of experience. Judge N Pillay served in the ICTR and ICC after her nomination by the Government of South Africa. Judge B J Moloto is currently serving in the ICTY after his nomination by the Government of South Africa. The National Group chaired by the Chief Justice makes nominations to the Minister, who is to approve such nominations on behalf of the Government of South Africa.
South Africa is a party to the African Charter on Human and Peoples’ Rights and the African Charter on the Rights of the Child. Another instrument which South Africa has ratified but which has not yet entered into force is the AU Protocol on the Rights of Women in Africa. All these AU instruments have provisions with regard to reporting obligations on a periodic basis. The reporting obligations pertain to measures taken by South Africa in ensuring the attainment / enjoyment of the rights contained in the instruments. South Africa, through the efforts of the DoJ&CD, has developed and submitted the first periodic report on the African Charter on Human and Peoples’ Rights. The report was presented to the African Commission in November 2005. A combined Periodic Report is being prepared (2002 – 2009). Although the DoJ&CD leads the process of reporting, the rights contained in the instruments are cross cutting, thus necessitating consultation so as to obtain inputs from relevant Government Departments. The main challenge in preparing periodic reports is the lack of human resources in the DoJ&CD. Apart from having some properly trained staff in report writing and background on human rights issues, the DoJ&CD still needs for more staff. With additional staff and proper skills, South Africa will not be faced with a backlog on its reporting obligations both in the context of the AU and the UN. The DoJ&CD has concluded a Memorandum of Understanding with the University of Pretoria to address the backlog and lack of report writing skills. The FHR could be of assistance in the future.
Extradition and Mutual Legal Assistance: Funding
As to extradition, mutual legal assistance in criminal matters and other related cooperation arrangements, the international practice is that the requested country bears the costs unless the matter involves extraordinary costs, in which case the requested and requesting States are supposed to share the costs. The NPA is responsible for these costs. However, there are instances when they run out of the budget or the cooperation matter does not clearly fall under their scope. The DoJ&CD would be approached to pay for these costs.
Mutual Legal Assistance
South Africa’s accession to the Council of Europe’s Convention on Extradition entered into force on 13 May 2003. A request was also directed to the Council of Europe that South Africa accede to the Convention on Mutual Legal Assistance. The Council of Ministers approved that South Africa accede to the MLA Convention. South Africa must now indicate any possible reservations. In terms of the Extradition Act, any arrangement made with any foreign State which, by virtue of the provisions of the Extradition Acts, 1870 to 1906 of the Parliament of the United Kingdom as applied in the Republic, was in force in respect of the Republic immediately prior to the date of commencement of the Act shall be deemed to be an agreement entered into and published on the said date by the President under the Act. SADC Protocols on Extradition and Mutual Legal Assistance (MLA) in Criminal Matters. This Protocol was signed by Summit on 3 October 2002 and ratified by Parliament on 14 April 2003. The Protocol on Extradition entered into force on 18 August 2006. The MLA Protocol still needs one ratification before it can enter into force (to be confirmed by SADC Secretariat). African Union Convention on Extradition. The African Convention on Extradition was finalized during a meeting of legal experts held in Ethiopia from 4 – 8 April 2001. The Department of Foreign Affairs was requested to determine the delay in this matter. South Africa has also designated Ireland, Zimbabwe, Namibia and the United Kingdom in terms of section 3(2) of the Extradition Act.
Countries may often request that witnesses be questioned under oath and/ or that statements be obtained for judicial or other processes.
Service of Process
Follow this link to view the procedure for Service of Process to and from a forgein country.
This process involves the service of documents between countries through diplomatic channels. RECIPROCAL ENFORCEMENT OF MAINTENANCE ORDERS refers to cases where one of the parties is residing in a proclaimed country or territory. In these cases the Reciprocal Enforcement of Maintenance Orders Act, 1963 (Act 80 of 1963) is applicable. This Act make provision for final and provisional orders.
Visits by Foreign delegations wanting to tap into South African experience have also demonstrated the growing role of the DoJ&CD in regional and world affairs.
Technical Assistance to Foreign States
Exchange of Programmes and Technical Assistance
Although the Treaties on Extradition and Mutual Legal Assistance in Criminal Matters are the main treaties administered by the Chief Directorate on behalf of the DoJ&CD, there are areas for cooperation relating to other Branches in the DoJ&CD, the Judiciary, NPA, Legal Aid Board and other families of the DoJ&CD and the Legal Profession that need to be explored within the context of African Renaissance (NEPAD).These areas include the following: exchange of programmes/ expertise, technical support in the legal field; and cooperation in the form of conferences and workshops on legal subjects of mutual interest. The Justice College has made some advances in this field. They have trained judicial officers, prosecutors and masters of courts from some AU countries. The NPA has also made some advances by exchanging experience with their counterparts in other countries. The Legislative Branch, in particular the South African Law Reform Commission has made some advances as well. In essence the above matters are about technical assistance to countries in Africa. If the DoJ&CD is serious about redefining its role in line with regional and world affairs of today, especially our government foreign policy on poverty alleviation on the African continent within the context of NEPAD, this area warrants more attention and should be considered one of our major priorities. For accountability purposes, this area must be fostered in terms of a Memorandum of Understanding. Activities could be reduced to programmes/projects.
As already underscored, the DoJ&CD has to adopt a pragmatic approach if we are serious in living up to South Africa’s foreign policy: ‘African Renaissance and a Better World for All’. There is still a vast area of cooperation not yet fully exploited by the DoJ&CD, especially on the African continent. The Judiciary and the NPA and Legal Aid Board have a major role to play, and their areas of cooperation have been highlighted above. The DoJ&CD Justice College in particular is involved in the Government of Southern Sudan and South Africa programme (GOSS/SA) regarding capacity building in Southern Sudan (post-conflict restructuring programme). They have trained a number of Sudanese judges of the lower and higher courts, and these judges were attached to our high and magistrate courts. The judges also had exchanges with constitutional court judges.
In future, the Judiciary will take over the function of training of foreign judges/magistrates. This is pursuant to the Judicial Education Institute Act, 2008 establishing the Judicial Education Institute. What remains is the operationalisation of the Act. Chief Justice P Langa has expressed, in the past, the need for the judiciary to have information and technical exchanges with their foreign counterparts. As already indicated above, judges Pillay, Moloto and Ngoepe have been seconded to specified regional/international courts. As to prosecution, it is noted that the NPA has had information and technical exchanges with a number of countries in Africa and the world in general. The Legal Aid Board can assist on exchange of information and technical assistance partnership to measures ensuring access to justice.
The Legal Aid Board and its partners have been discussing the convening of an Africa Regional meeting on these issues. Other Branches have a major role to play as well. Law reform is a significant area of cooperation to be exploited by the Legislative Branch. The Association of Law Reform Agencies of Eastern and Southern Africa (ALRAESA) was formally established in Windhoek, Namibia, in August 2003. Its members include the law reform agencies of Botswana, Kenya, Lesotho, Malawi, Mauritius, Namibia, Rwanda, South Africa, Swaziland, Tanzania, Uganda, Zambia and Zimbabwe. Its purpose is to exchange and share ideas on best practices in law reform; exchange and share ideas on the development of law, within the countries of the member agencies in accordance with the principles of human rights, good governance and the rule of law; and collectively contribute to the attainment of the objectives of member agencies.
establishment of ALRAESA is in line with the trend of regional groupings
of law reform agencies in the world. Examples are the United Kingdom, Canada
and the Australasian Law Reform Agencies. The Commonwealth Association
of Law Reform Agencies (CALRAs) has been established. This comprises all
Commonwealth countries, including South Africa.
Developing constitutional democracies in Africa benefited greatly from interacting with law reform agencies that have for many years been operating in a constitutional democracy and have kept abreast with an intricate and rapidly changing social climate. Globalisation and the development of MODEL laws have brought legal systems closer together. In many respects the spotlight of the world has been turned on Africa and its emerging constitutional democracies where there is a particularly strong need for law reform.
The Masters Branch has their role as well. Our recollection is that two officials from our Masters office were seconded to Namibia. The Court Services Branch, which supports the judiciary, has a role as well. The State Law Advisors and Attorneys (Litigation Unit) have a role to play as well. The State Law Advisors have shared their experience on legal drafting with a Sudanese delegation. The Chief Directorates: Constitutional Development, Vulnerable Groups and Gender Directorate can assist countries in exchange of information on human rights, technical assistance and public awareness campaigns. The Family Advocates can play a role as well (they were working on the establishment of a SADC Forum). The Public, Education and Communication Division have a role to play, especially in the area of publicity/advertisement and media pertaining to justice issues. They can share their expertise with interested countries. The Information System Management Division could share information system management expertise with interested countries, especially our E-Justice Programme. The HR and CFO can assist on management of human and financial resources respectively. The Foundation for Human Rights can partner with the DoJ&CD on exchange of information and technical expertise on implementation of human rights.
The Chief Directorate: International Legal Relations would still be used as a Departmental Coordination Unit and channel of communication in relation to cooperation between the respective Branches of the DoJ&CD and other Justice family members and interested countries.
South Africa is a member of this organisation and party to fewer instruments, namely The Hague Conventions on form of wills, legalisation, taking of evidence and child abduction. The Chief Family Advocate is the central authority regarding The Hague Convention on Child Abduction. South Africa, Egypt, Jordan and Morocco are the only members of The Hague Conference. Botswana, Burkina Faso, Burundi, Lesotho, Liberia, Malawi, Mauritius, Namibia, Niger, Seychelles, Swaziland and Zimbabwe are party to two or three instruments respectively, although they are non-members of The Hague Conference.
Many of the members of the European Council are members of The Hague Conference, including the UK and USA. These are party to some instruments: Netherlands, Spain, France, Belgium, Switzerland, Portugal, Italy and Austria (are top on the list). The DoJ&CD is considering the possibility of South Africa becoming party to other two instruments, namely the conventions on service abroad and enforcement of judgments (our sheriffs are keen to have these instruments, besides they have an impact on our trade relations – especially with Europe, USA and UK). The Statute of The Hague Conference is being reviewed with a view to allowing Regional Economic Integration Organisations to become members.
Asian-African Legal Consultative Organisation (AALCO)
South Africa has recently become a member of AALCO. AALCO deals with legal matters with a view to fostering cooperation among Member States. Furthermore, AALCO interacts with other international and regional organisations dealing with legal matters. The former Minister of Justice and Constitutional Development, Mrs B S Mabandla served as the first ever female President of AALCO in 2007/08. She was elected President at the 46th AALCO Session hosted in Cape Town in July 2007.
Organisation for Economic Co-operation and Development (OECD)
Although South Africa is not a member of this organisation, it has observer status and is party to some of the instruments of the OECD. South Africa has an observer status in the Committee for Scientific and Technological Policy. The area on development is under the Development Assistance Committee (DAC). There is a DAC Network on Gender Equality (Gender-net) which is of interest to the Department.
Another area of interest to the Department is the DAC Network on Governance (Govnet). The Govnet aims at improving the effectiveness of donor assistance in governance and in support of capacity development. It provides members with a policy forum for exchanging experiences and lessons, including identifying and disseminating good practice and developing proper policy and analytical tools. The Govnet work focuses on how to improve the effectiveness of support in a broad range of areas including: the fight against corruption, public service reform, capacity development, human rights, democracy, the rule of law, assessing governance development, and difficult partnerships. The work of the network governs relationships between the State, citizens, civil society and the private sector.
The two bodies can be of assistance to the Department around the abovementioned areas of development. We can choose to be an observer as in the case of the Committee on Science, Technology and Industry. The DoJ&CD participates in the OECD Working Group on Bribery (the lead Department is DPSA). South Africa is party to the OECD Convention on Bribery.