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ILR logoThe Chief Directorate: International Legal Relations is involved in direct liaison and negotiations at administrative and technical level with foreign states to promote international legal co-operation, and for the possible conclusion of extradition and mutual legal-assistance agreements.  The chief directorate also aims to establish greater uniformity between the legal systems of southern African states, especially with the Southern African Development Community (SADC). The Chief Directorate co-ordinates human-rights issues at international level under the auspices of the United Nations (UN) and the African Union (AU).

GUIDELINES FOR REQUESTS FOR MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS RECEIVED FROM FOREIGN STATES

Legal basis

  1. South Africa enacted the International Cooperation in Criminal Matters Act, 1996 (Act 75 of 1996) (ICMMA) to provide for the rendering of mutual legal assistance in criminal matters. The ICCMA does not require that a Treaty be in force. The ICCMA provides for the provision of evidence or information (Chapter 2), execution of sentences and compensatory orders (Chapter 3) and the confiscation and transfer of the proceeds of crime as well as restraint orders (Chapter 4).

  2. In order to execute requests for mutual legal assistance, it may be necessary to rely on other domestic legislation such as the Criminal Procedure Act, 1977 (Act 51 of 1977) (CPA), Prevention of Organised Crime Act, 1998 (Act 121 of 1998) (POCA) and the Regulation of Interception of Communications and Provision of Communication-Related Information Act, 2002 (Act 70 of 2002).  
  3. In the event that a bilateral treaty for Mutual Legal Assistance in Criminal Matters is in place, the request will be processed in terms of the provisions of the treaty and the ICCMA.

General remarks

  1. The international rule of reciprocity must form part of the basis for the request. Dual criminality is not a pre-requisite for a request. The ICCMA and most treaties do not require that diplomatic channels be used, however, as explained in paragraph 13 below, in certain cases it is advisable to do so. A request can therefore be sent directly to the Department of Justice and Constitutional Development, addressed to the Director-General (Adv. D Mashabane), who is the Central Authority for the sending and receiving of requests for Mutual Legal Assistance.

  2. There are mainly two types of requests. The first  entails requests which require non-coercive measures for implementation, such as the provision of information or public documents and the service of subpoena on witnesses to testify in the Requesting State or which can be executed on a voluntary basis, such as a witness who is willing to cooperate. These requests can be executed with the assistance of just the South African Police Service. The second entails requests that are intrusive in nature such as the provision of witness or warning statements, bank or phone statements, search and seizure and asset recovery related proceedings. These requests can only be executed with the assistance of magistrates or judges.
  3. Most States have a Central Authority through which and to which requests can be directed. The Central Authority directs the request to the relevant agencies which are to assist with the execution thereof.  The Central Authority is also responsible for the        coordination of the rendering of assistance.  In South Africa, the Director-General (DG) of the Department of Justice and Constitutional Development is the Central Authority.
  4. The ICCMA does not prohibit informal cooperation between investigating   authorities of States. Investigating officers may rely on informal communication channels, for example Interpol and contact persons abroad, to obtain and provide information.  The information obtained or provided in this manner is preliminary and cannot be used as evidence.  If the information is to be used as evidence, a letter of request as provided for in the ICCMA is to be issued.  Note that requests for informal cooperation are not forwarded to the Department. 

Route

  1. A request for Mutual Legal Assistance is compiled by the competent authority in the Requesting State and forwarded to the Department of Justice and Constitutional Development by the Central Authority of the Requesting State. The Chief Directorate: International Legal Relations within the Department is responsible for the processing of all requests.

Form and Content of the Request

  1. It is important that the request complies with the provisions of Section 7 of the ICCMA and the treaty (if applicable). If the provisions are not met, the request will be returned to the Requesting State, accompanied by a letter setting out the reasons why the request did not comply.  In most cases the request will then have to be amended or supplemented, and then returned to the Department of Justice and Constitutional Development for execution.
  2. A request for mutual legal assistance must contain a statement, taken under oath or attested to, discussing the offences, facts on which the allegations are based, outcome of the investigations to date, available evidence and assistance sought. The request does not have to be bound and sealed with the Seal of Office. Signatures do not have to be authenticated and copies of documents attached to the statement, if any, do not have to be certified.

Grounds for refusal of a request by South Africa

  1. The ICCMA does not provide for grounds for refusal, however, all Treaties do. Grounds for refusal include the following: 
    • the request is not made in conformity with a bilateral Treaty (if applicable);
    • for any reason provided by the domestic law of South Africa, including our system of fundamental or human rights as enshrined in the Constitution;
    • to the extent that the steps required to be taken in order to comply with the request cannot under the law of the South Africa be taken in respect of criminal matters arising in South Africa relating to the request;
    • the execution of the request would impair the sovereignty, security, public order, or essential public interest of South Africa;
    • the request relates to a political offence or to an offence under military law which would not be an offence under ordinary criminal law;
    • there are substantial grounds for South Africa to believe that the request has been made for the purpose of investigating, prosecuting, punishing or instituting other proceedings against a person on account of that person’s race, sex, religion, nationally or political opinions;
    • the execution would prejudice the safety of any person;
    • South Africa has terminated criminal proceedings against the same suspect or accused for the same offence as contained in the request;
    • the conduct in relation to which the person accused or suspected of having committed an offence has been acquitted on convicted by a court in South Africa;
    • the request relates to conduct which would not constitute an offence under the law of South Africa. (As dual criminality is not a prerequisite in terms of the ICCMA, this ground will only be applicable to a request based on a Treaty specifically providing for such a ground);
    • the provision of the assistance sought could impose an excessive burden on the resources of South Africa (The Requesting State could be requested to share the expenses to be incurred); and
    • the Requesting State cannot grant similar assistance to South Africa.

Execution of the request

  1. With regard to requests that require coercive measures, Section 8 of the ICCMA provides that the magistrate who was requested to assist with the execution of the request shall subpoena the witness whose evidence is required to appear before him or her to give evidence or to produce documents.  As discussed above, a request may also be executed in terms of other domestic legislation.  As soon as the requested information or evidence is obtained, the magistrate forwards same to the Chief Directorate: International Legal Relations within the Department of Justice and Constitutional Development for onward transmission to the Requesting State.  In the       case requests that are not intrusive in nature, Interpol South Africa forwards the information or evidence to the Chief Directorate: International Legal Relations for onward transmission to the Requesting State.

Evidence gathered

  1. Although it is not required that the diplomatic channel is used, it is advised, except where there is a treaty in place which provides for direct transmission, that foreign countries should  submit requests through the diplomatic channel at the Department of International Relations and Cooperation. This will enable the Chief Directorate: International Legal Relations to submit any evidence that is gathered in accordance with the request via the Department of International Relations and Cooperation. This is a much more cost-effective solution compared to submitting evidence via courier services. In urgent matters, the requesting country can  submit a copy of the request directly to the Department of Justice and Constitutional Development for processing and the original through the diplomatic channel.      

Contact Details

The Department of Justice and Constitutional Development
Chief Directorate: International Legal Relations
Chief Director: Adv Tandeka Lujiza
Tel: 012 315 1659
Email: TLujiza@justice.gov.za

Director:  Mr. Edgar R Botes (Acting)
Tel: 012 315 4661/ (012) 357 8053
Email: EBotes@justice.gov.za

Postal Address: Private Bag X81, PRETORIA, 0001

Street Address: Momentum Centre 13th Floor, 329 Pretorius Street (c/o Pretorius and Sisulu Streets), PRETORIA

Updated: 09 Nov 2022