967
SOUTHERN AFRICAN LITIGATION CENTRE Respondent and
PROFESSOR JOHN DUGARD AND PROFESSOR GUENAEL METTRAUX First Amici Curiae
AMNESTY INTERNATIONAL LIMITED Second Amicus Curiae
PEACE AND JUSTICE INITIATIVE AND CENTRE FOR HUMAN RIGHTS Third Amicus Curiae
HELEN SUZMAN FOUNDATION Fourth Amicus Curiae
DIRECTIONS DATED 10 NOVEMBER 2016
The Acting Chief Justice has issued the following directions:
1. The parties and amici curiae are each directed to file written submissions of no more than 5 pages on----
(a) the scope and content of Rule 27 of the Constitutional Court Rules, particularly in light of the proposed withdrawal of the application for leave to appeal and the tender to pay costs of three counsel;
(b) the competence of the relief sought by the respondent in the absence of an application for leave to cross-appeal; and
(c) which party should bear the liability for costs incurred from the date of the notice of withdrawal.
2. The written submissions must be filed by-
(a) the applicants by Monday, 14 November 2016; and
(b) the respondent and amici curiae by Wednesday, 16 November 2016.
3. Further directions may be issued. 968
RCGISTRAR Of I HI" COtJAT REGISTRAR PRIVAT[ FJAG X 1 CONSTITUTIONAL COURT COW.>T!TtJTfGN HilL I 0 NOV 20!6
BRAAMFONTF.!N :!OT7 TO: STATE ATTORNEY GRIFFIER VMI PI! Kot<:;Hrti!iiDflt:l!; IIOf Attorneys for the Applicants SALU Building 316 Thabo Sehume Street PRETORIA Tel: 012 309 1565 Fax: 086 507 0909 Email: [email protected] .za/[email protected] .za Ref: 3604/20 15/Z49 Enq: J Meier c/o STATE ATTORNEY I Oth Floor North State Building 95 Market Street, Cnr Kruis St JOHANNESBURG Tel: 011 330 7621 Fax: 086 612 4106 Email: [email protected] Ref: Mr V Dhulam
AND TO: WEBBER WENTZEL Attorneys for the Respondent 90 Rivonia Road Sandton JOHANNESBURG Tel: 011 530 5867 Fax: 011 530 6867 Email: [email protected] Ref: M Hathorn/3001742
TO: ROSIN WRIGHT ROSENGARTEN Attorneys for the First Amici Curiae LeVa! North Block, South Wing Ground Floor 45 Jan Smuts Avenue (Cnr The Valley Rd) 969
Westcliff JOHANNESBURG Tel: 011 486-0242/3 Fax: 086 218 4930 Email: [email protected]/ [email protected] Ref: D Rosengarten/K Mitchell
TO:WERKSMANSATTORNEYS Attorneys for the Second Amicus Curiae 155 5th Street Sandton, JOHANNESBURG Tel: 011 535 8318 Fax: 0 II 535 8623 Email: dnaidoo@werksmans.com Ref: D NAIDOO/PROB9999.526
TO: LEGAL RESOURCES CENTRE Attorneys for the Third Amicus Curiae Floor 16, Bram Fischer Towers 20 Albert Street, Marshalltown JOHANNESBURG Tel: 011 836 9831 Fax: 0 II 535 8623 Email: [email protected]/[email protected] Ref: II 13715L/MJ Power/ A Singh
TO: WEBBER WENTZEL Attorneys for the Fourth Amicus Curiae 90 Rivonia Road Sandton JOHANNESBURG Tel: 0 I I 530 5422 Fax: 0 I I 530 6422 Email: [email protected] Ref: Movshovich I P DeJa I D Cron I D Rafferty/3005285 970 I( s t(
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CONSTITIITIONAL COURT OF SOUTH AFRICA
Case CCT 75/16
In the matter between:
MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT First Applicant
DIRECTOR-GENERAL OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT Second Applicant
MINISTER OF POLICE Third Applicant
COMMISSIONER OF POLICE Fourth Applicant
MINISTER OF INTERNATIONAL RELATIONS AND CO-OPERATION Fifth Applicant
DIRECTOR-GENERAL OF INTERNATIONAL RELATIONS AND CO-OPERATION Sixth Applicant
MINISTER OF HOME AFFAIRS Seventh Applicant
DIRECTOR-GENERAL OF HOME AFFAIRS Eighth Applicant
NATIONAL COMMISSIONER OF THE SOUTH AFRICAN POLICE SERVICE Ninth Applicant
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Tenth Applicant
HEAD OF DIRECTORATE FOR PRIORITY CRIMES INVESTIGATION Eleventh Applicant
DIRECTOR OF PRIORITY CRIMES INVESTIGATION UNIT Twelfth Applicant
and 971
'8-11-16; 00:00 # 1.1 4
SOUTHERN AFRICA LITIGATION CENTRE Respondent
and
PROFESSOR JOHN DUGARD AND PROFESSOR GuENAEL METTRAUX First Amici Curiae
AMNESTY INTERNATIONAL LIMITED Second Amicus Curiae
PEACE AND JUSTICE INITIATIVE AND CENTRE FOR HUMAN RIGHTS Third Amicus Curiae
HELEN SUZMAN FOUNDATION Fourth Amicus Curiae
DIRECTIONS DATED 18 NOVEMBER 2016
The Constitutional Court has considered the applicants' notice, dated 25 October 2016, withdrawing its application as well as the respondent's notice, dated 11 November 2016, accepting the withdrawal. The following directions are issued in terms of Rule 27 of the Rules of the Constitutional Court:
1. The Registrar is directed to make an entry of the withdrawal of the application.
2. The parties' agreement as to costs is noted. Rt:GI$TAAF\ Or THr r, . :· r'->IJAJ PHJV/\TE X l CONSTITUTION HJU. 18 NOV 2016 REGISTRAR 9RAAMFONi.EJN 2011 CONSTITUTIONAL COURT GRif'rlt:R . - VAN Dlt M)'IS/1 nJS!ONEI..E HOF
TO: STATE ATTORNEY Attorneys for the Applicants SALU Building 316 Thabo Sehume Street PRETORIA Tel: 012 309 1565 Fax: 086 507 0909 Email: [email protected] [email protected] Ref: 3604/2015/Z49 972
18-11-16;00:00 # 3/ 4
Enq: JMeier c/o STATE ATTORNEY lOth Floor North State Building 95 Market Street, Cnr Kruis St JOHANNESBURG Tel: 011 330 7621 Fax: 086 612 4106 Email: [email protected] .za Ref: Mr V Dhulam
AND TO: WEBBER WENTZEL Attorneys for the Respondent 90 Rivonia Road Sand ton JOHANNESBURG Tel: 011 530 5867 Fax: 011 530 6867 Email: moray [email protected] Ref: M Hathorn/3001742
TO: ROSIN WRIGHT ROSENGARTEN Attorneys for the First Amici Curiae LeVa! North Block, South Wing Ground Floor 45 Jan Smuts Avenue (Cnr The Valley Rd) Westcliff JOHANNESBURG Tel: 011 486-0242/3 Fax: 086 218 4930 Email: [email protected]/ [email protected] Ref: D Rosengarten!K Mitchell
TO:WERKSMANSATTORNEYS Attorneys for the Second Amicus Curiae 155 5th Street Sand ton, JOHANNESBURG Tel: 011 535 8318 Fax: 011 535 8623 973
18-11-16; 00: 00 ; # 4/ 4
Email: [email protected] Ref: D NAIDOQ/PROB9999.526
TO: LEGAL RESOURCES CENTRE Attorneys for the Third Amicus Curiae Floor 16, Bram Fischer Towers 20 Albert Street, Marshalltown JOHANNESBURG Tel: 011 836 9831 Fax: 011 535 8623 Email: [email protected]/[email protected] Ref: 1113715LIMJ Power/ A Singh
TO: WEBBER WENTZEL Attorneys for the Fourth Amicus Curiae 90 Rivonia Road Sandton JOHANNESBURG Tel: 011 530 5422 Fax: 011 530 6422 Email: [email protected] Ref: Movshovich I P DeJa I D Cron I D Raffertyl3005285 I( 974
WEBBER WENTZEL in alliance with> linklaters
To: The State Attorney: Dr K Meier 90 Rivonia Road, Sandton Johannesburg, 2196 Cc: The Registrar of Constitutional Court and the amici PO Box 61771, Harsllal!town Johannesburg, 210'7, South Afnc.a Docex 26 .Johannesburg T +27 11 530 5000 F ·1·27 11530 Sill www.wehberwentzel.com
Your reference Our reference Date 3604/20 15/Z49 MrM Hathorn 11 November 2016 3001972 Dear Sir/ Madam
Re: THE MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT AND OTHERS v SOUTHERN AFRICA LITIGATION CENTRE: CONSTITUTIONAL COURT CASE NO CCT 75/2016
We are instructed to inform you that the Southern Africa Litigation Centre consents to the withdrawal of the application in terms of the Notice of Withdrawal dated 25 October 2016, and accepts the Applicants' unconditional offer to pay our client's taxed costs to the date of the notice, including the costs of three counsel where incurred.
Our client does so in circumstances where, despite the apparently clear wording of rule 27, the Court's directions received yesterday suggest that there may be costly debate thereon. The risk of costs is not a risk which our client is in a position to bear.
Our client's consent to the withdrawal should not be construed as an acceptance that the findings on international law made by the majority in the Supreme Court of Appeal, were correct. Our client reserves its rights to take issue with those findings in future proceedings, should it prove necessary.
We further attach a Notice of Acceptance of Withdrawal of Application.
Yours faithfully
WEBBER WENTZEL Moray Hathorn Partner
Senior Pi.\ftner: Partne-r: :c;l Partners: ;
'aar-; AJ :.,.,. 05G'' ';' S'iae ' Swilmic l :;,.,c\nt>poei A fh>ki)" !'-< i>Z Vu:Ci> ·::E Vii:', U2<' l-\0( IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA CC Case: 75/2016 In the matter between: MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT 1" Applicant DIRECTOR GENERAL OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT 2nd Applicant MINISTER OF POLICE 3'' Applicant COMMISSIONER OF POLICE 4th Applicant MINISTER OF INTERNATIONAL RELATIONS AND COOPERATION 5'h Applicant DIRECTOR GENERAL OF INTERNATIONAL RELATIONS AND CO-OPERATION 6th Applicant MINISTER OF HOME AFFAIRS 7th Applicant DIRECTOR GENERAL OF HOME AFFAIRS 8th Applicant NATIONAL COMMISSIONER OF THE SOUTH AFRICAN POLICE SERVICE gth Applicant 1 NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS 10 h Applicant HEAD OF THE DIRECTORATE FOR PRIORITY CRIMES INVESTIGATION 11" Applicant DIRECTOR OF THE PRIORITY CRIMES INVESTIGATION UNIT 12"' Applicant and THE SOUTHERN AFRICA LITIGATION CENTRE Respondent NOTICE OF ACCEPTANCE OF WITHDRAWAL OF APPLICATION KINDLY TAKE NOTICE THAT: the Respondent accepts the Applicants' withdrawal of the application for leave to appeal against the Judgment and Orders of the Supreme Court of Appeal delivered on 15 March 2016 under SCA Case no: 86712015. 976 KINDLY TAKE NOTICE FURTHER THAT: the Respondent accepts the Applicants' tender of the Respondent's taxed costs to the date of the notice of withdrawal in this court, including the costs of three counsel. DATED AT JOHANNESBURG ON 11 November 2016 "WEBBER WENTZEL Respondent's Attorneys 90 Rivonia Road Sandton Johannesburg 2196 Tel: (011) 530 5867 Fax: (011) 530 6867 Ref: M Hathorn I 3001972 To: The Registrar of the Constitutional Court Johannesburg And to: The 1" to 12"' Applicants THE STATE ATTORNEY, PRETORIA SALU building 316 Thabo Sehume Street Pretoria Ref: 3604/2015/Z49 Tel: 012 309 1520 Fax: 086 507 0909 Enq: J Meier Per email: [email protected] [email protected] c/o THE STATE ATTORNEY 1O'" Floor, North State Building Johannesburg Tel: 011 330 7621 Enq: Mr V Dhulam Per email: [email protected] Received copy hereof on this __ day of November 2016 For: 1st to 12'fi Applicants 977 And to: 1'' Amici curiae JOHN DUGARD and Guenael Mettraux ROSIN WRIGHT ROSENGARTEN Le Val, North Block South Wing, Ground Floor 45 Jan Smuts Avenue (Cnr the Valley Rd), Westcliff Ref: D RosengarteniK Mitchell Tel: (011) 486 024213 Fax: 086 218 4930 Email: [email protected] [email protected] Served by Email as per arrangement And to: 2"' Amicus curiae AMNESTY INTERNATIONAL LIMITED WERKSMANS ATTORNEYS 155 - 5TH Street, Sand ton Ref: Ms D NaidooldniPROB9999.526/#4481350v1 Rei: 011 535 8318 Fax: 011 535 8623 Email: [email protected] I [email protected] Served by Email as per arrangement And to: 3Ro Amici curiae PEACE AND JUSTICE INITIATIVE and CENTRE FOR HUMAN RIGHTS LEGAL RESOURCES CENTRE Floor 16, Bram Fischer Towers 20 Albert Street, Marshalltown Johannesburg Ref: 111371511MJ Power I A Singh Tel: 011 836 9831 Email: Michael@!rc.org.za I [email protected] Served by Email as per arrangement And to: 4'h Amicus curiae HELEN SUZMAN FOUNDATION WEBBER WENTZEL ATTORNEYS 90 Rivonia Road Sandton, Johannesburg. 2196 Tel: (011) 530 5422 Fax: (011) 530 6422 Ref: V Movshovich IP Dela I D Cron I D Rafferty 3005285 Email: [email protected], [email protected] Daniel. rafferty@webberwentzel. com Served by Email as per arrangement 978 REPUBLIC OF SOUTH AFRICA JURISDICTION OF COURTS AND COOPERATION RELATING TO INTERNATIONAL CRIMES BILL (As introduced in the National (proposed section 75); explanatory summary of Bill published in Government Gazette No. ... of ...... 2016) (The English text is the official text of the Bill) (MINISTER OF JUSTICE AND CORRECTIONAL SERVICES) [B- 2017] 979 2 141116nim BILL To provide for the jurisdiction of courts in the Republic in respect of certain international law crimes; to provide for the extradition to States of persons accused or convicted of certain international law crimes; to provide for the surrender to certain entities of persons accused or convicted of certain international law crimes; to provide for co-operation and judicial assistance in relation to certain international law crimes to entities; and to provide for matters incidental thereto. PREAMBLE MINDFUL- • that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity; • of the significance of humanitarian law for all countt ies in the world; • of the equal and inalienable rights of all members of the human family, which is founded on freedom, justice and peace in the world; • of the Republic of South Africa's obligations in respect of upholding principles of international humanitarian law; and • of the fact that the Republic of South Africa may become a safe haven for accused persons as a result of the repeal of the Implementation of the Rome Statute of the International Criminal Court Act, 2002; 980 3 AND SINCE- • it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes; • States have in accordance with international law, competency to exercise jurisdiction over their nationals for crimes committed anywhere in the world; and • the Republic of South Africa wishes to comply with its international obligations relating to international crimes, BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as follows:- ARRANGEMENT OF SECTIONS CHAPTER 1 GENERAL Sections 1. Definitions 2. Objects of Act 981 4 CHAPTER 2 CRIMES 3. Applicable law 4. Jurisdiction of South African courts in respect of crimes 5. Institution of prosecutions in South African courts 6. Factors to be considered in sentencing 7. Application of Extradition Act, 1962, in respect of foreign States in connection with crimes CHAPTER 3 SURRENDER OF PERSONS TO ENTITIES IN RELATION TO CRIMES 8. Application of Extradition Act, 1962, in respect of entities in connection with crimes 9. Definitions 10. Request for surrender 11. Specific agreement 12. Immunity against surrender 13. Concurrent requests for extradition and surrender 982 5 CHAPTER4 CO-OPERATION WITH AND JUDICIAL ASSISTANCE TO ENTITIES 14. Definitions 15. Requests for assistance in obtaining evidence 16. Examination of witnesses 17. Rights and privileges of witnesses 18. Offences by witnesses 19. Attendance of witnesses before entity 20. Service of process and documents 21. Enforcement of order of Entity 22. Designation of Republic as State in which sentence may be served and enforcement of sentence 23. Enforcement of sentence of imprisonment 24. President may enter into agreements CHAPTER 5 MISCELLANEOUS 25. Provision of legal aid 26. Amendment of the Criminal Procedure Act, 1977 27. Short title and ccmmencement 983 6 CHAPTER 1 GENERAL Definitions 1. In this Act, unless the context indicates otherwise- " accused person" means any person who has committed or allegedly committed a crime; "Constitution" means the Constitution of the Republic of South Africa, 1996; "crime" means a crime provided for in section 4(1 ); "Criminal Procedure Act, 1977" means the Criminal Procedure Act, 1977 (Act No. 51 of 1977); "Diplomatic Immunities and Privileges Act, 2001" means the Diplomatic Immunities and Privileges Act, 2001 (Act 37 of 2001 ); "Extradition Act, 1962" means the Extradition Act, 1962 (Act No.6 of 1962); "High Court" means the High Court of South Africa referred to in section 6(1) of the Superior Courts Act, 2013 (Act No. 10 of 2013); and "National Director'' means the National Director of Public Prosecutions appointed in terms of section 179(1 )(a) of the Constitution. Objects of Act 2. ( 1) The objects of this Act are to- 984 7 (a) promote the equal and inalienable rights of all persons which are the foundation of freedom, dignity, justice and peace in the world; (b) promote universal respect for human rights and the protection of human dignity; (c) criminalise serious violations of international humanitarian law; (d) provide for the prosecution of persons who commit serious violations of international humanitarian law; (e) ensure that persons who are accused of serious violations of international humanitarian law may be extradited to States in accordance with the Extradition Act, 1962; (f) provide for the surrender of persons who are accused of serious violations of international humanitarian law to entities referred to in Chapter 3; and (g) provide for co-operation between the Republic and entities in respect of persons surrendered to the entities as provided for in Chapter 4. CHAPTER 2 CRIMES Applicable law 3. (1) In addition to the Constitution and the law, the High Court hearing any matter arising from the application of this Chapter of the Act must also consider and, where, appropriate, may apply- ( a) conventional international law; 985 8 (b) customary international law; and (c) comparable foreign law. Jurisdiction of South African courts in respect of crimes 4. (1) For the purposes of this section, "crime" includes- (a) "a crime against humanity" which means any conduct referred to in Part 2 of the Schedule; (b) "a war crime" which means any conduct referred to in Part 3 of the Schedule; and (c) "genocide" which means any conduct referred to in Part 1 of the Schedule. (2) (a) Any person who- (i) commits a crime; (ii) in any manner aids or abets or participates or assists in the commission of a crime; or (iii) instructs, directly or indirectly, the commission of a crime or the participation or assistance in the commission of the crime, is guilty of an offence. (b) A court which convicts a person of an offence in terms of paragraph (a), may, where a penalty is not prescribed in respect of that offence by any other law, impose a sentence, as provided for in section 276 of the Criminal Procedure Act, 1977, which that court considers appropriate and which is within that court's penal jurisdiction. 986 9 (3) In order to secure the jurisdiction of a South African court for purposes of this section, any person who commits a crime contemplated in subsection (2) outside the territory of the Republic, is deemed to have committed that crime in the territory of the Republic if- (a) that person is a South African citizen; (b) that person is not a South African citizen but is ordinarily resident in the Republic; (c) that person, after the commission of the crime, is present in the territory of the Republic, or in its territorial waters or on board a ship or aircraft registered or required to be registered in the Republic; or (d) that person has committed the said crime against a South African citizen or against a person who is ordinarily resident in the Republic. (4) Subject to the Diplomatic Immunities and Privileges Act, 2001, but notwithstanding any other law to the contrary, including customary intemationallaw, the fact that an accused person committed a crime contemplated in subsection (2), pursuant to an order of a Government or of a superior does not relieve him or her of criminal responsibility but may be considered in mitigation of sentencing. (5) The fact that a crime contemplated in subsection (2) was committed by a subordinate does not relieve his or her superior of criminal responsibility if he or she knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. 987 10 (6) A state of war, threat of war, internal political instability, national security or any state of emergency may not be invoked as a justification for the commission of a crime. Institution of prosecution in South African courts 5. (1) No prosecution may be instituted against a person accused of having committed a crime without the written permission of the National Director. (2) The Cabinet member responsible for the administration of justice must, in consultation with the Chief Justice of South Africa and after consultation with the National Director in writing, designate any Division of the High Court or the main seat or any local seat of a Division in which a prosecution must be conducted against any person accused of having committed a crime. (3) The National Director must, in making a decision on whether to institute a prosecution contemplated in this Act, have regard to- ( a) conventional international law, customary international law and comparable foreign law; (b) the responsibility of the Republic to prosecute an accused person for serious violations of international humanitarian law; and (c) the balance of convenience to prosecute an accused person for a crime in the Republic, with specific regard to- (i) the location of potential witnesses and evidence; (ii) undue hardship for the accused person or witnesses; 988 11 (iii) alternative forums which have jurisdiction and the responsibility to prosecute the accused person; and (iv) cost implications for the Republic. (4) If the National Director declines to prosecute a person under this Act, he or she must provide the Minister with the full reasons for his or her decision and the Minister must forward that decision, together with the reasons, to the competent authority which requested the surrender, as defined in Chapter 3. Factors to be considered in sentencing 6. Any court that imposes a sentence in respect of a crime must. when considering the presence of aggravating circumstances and without excluding other relevant factors, take the following factors into account: (a) The effect of the crime on the victims; (b) the period during which a crime has been committed; (c) any form of vulnerability of the victims, including mental or physical disability; (d) whether the victims included persons under the age of 18 years, women or older persons as contemplated in the Older Persons Act, 2006 (Act No. 13 of 2006); (e) whether the victims were also victims of rape or compelled rape as contemplated in section 3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively; (f) the kind of weapons used to harm, threaten or intimidate the victims; (g) any discriminatory motive involved in the commission of the crime; and 989 12 (h) the role of the convicted person in the offence. Application of Extradition Act, 1962, in respect offoreign States in connection with crimes 7. (1) A crime provided for in section 4(1) of this Act shall be deemed to be included in the definition of "extraditable offences" in section 1 of the Extradition Act, 1962. (2) A crime provided for in section 4(1) of this Act shall be deemed to be included in any extradition agreement entered into with any foreign State by the President in terms of section 2(1)(a) of the Extradition Act, 1962. (3) The Extradition Act, 1962, shall be applicable to foreign States designated by the President in terms of section 2(1)(b) of the Extradition Act in respect of a crime provided for in this Act. CHAPTER 3 SURRENDER OF PERSONS TO ENTITIES IN RELATION TO CRIMES Application of Extradition Act, 1962, in respect of entities in connection with crimes 8. The Extradition Act, 1962, applies, with the necessary changes as may be required by the context except in so far as this Chapter provides for amended, 990 13 additional or different provisions or procedures, in respect of the surrender of an accused person to an entity for a crime provided for in section 4(1) of this Act. Definitions 9. For the purposes of this Chapter and Chapter 4, unless the context indicates otherwise- "African Court of Justice and Human Rights" means the African Court of Justice and Human Rights established by the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights; "competent authority" means an authority responsible for the administration of justice, prosecutions of, or international liaison on behalf of an entity; "entity" means the African Court of Justice and Human Rights, any international criminal court, international tribunal or other similar body established by an International Resolution, excluding the International Criminal Court; "International Criminal Court'' means the International Criminal Court established by Article 1 of the Rome Statute; "International Resolution" means a resolution adopted by the Security Council of the United Nations in terms of Chapter VII of the Charter of the United Nations or any other resolution, similar instrument or statute that binds the Republic and that contains a provision regarding the surrender to an entity of persons who have committed a crime; "specific agreemenf' means an agreement referred to in section 15; 991 14 "surrender" means the handing over of a person who is sought by an entity for criminal prosecution for a crime or for the imposition or enforcement of a sentence in respect of such crime and "surrendering" has a corresponding meaning; and "the Rome Statute" means the Rome Statute of the International Criminal Court, adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court on 17 July 1998 and ratified by the Republic on 10 November 2000. Request for surrender 10. (1) Any person accused of a crime over which an entity has jurisdiction may, subject to this Act, any other law of the Republic and any specific agreement to which the Republic is a party, on request, be surrendered by the Republic to the entity- ( a) whether or not the crime was committed before the date of- (i) commencement of this Act; (ii) the coming into operation of a specific agreement; or {iii) the establishment of an entity; and (b) if a court in the Republic has jurisdiction to try that person for that offence. (2) For purposes ofsubsection (1), an entity is deemed to have been established on the date on which the International Resolution to that effect was adopted. (3) A person may be surrendered by the Republic in accordance with this Act and a specific agreement, on the request of a competent authority for the 992 15 purpose of prosecuting the person, imposing a sentence on the person or enforcing a sentence imposed on the person in respect of a crime. Specific agreement 11. (1} The President may, subject to the provisions of the Constitution and this Act, on such conditions as he or she may deem fit, enter into a specific agreement with the competent authority of any entity for the purpose of giving effect to a request for the surrender of a person who has or is alleged to have committed a crime. (2) No specific agreement or an amendment or revocation thereof will be of any force or effect until the agreement or amendment or revocation of that agreement has been approved by Parliament in terms of section 231 of the Constitution. (3) The Cabinet member responsible for the administration of justice must, as soon as practicable after the date of entry into force of the specific agreement or amendment or revocation thereof, give notice of the agreement or amendment or revocation thereof and of the date of entry into force thereof in the Gazette. (4) (a) The Cabinet member responsible for the administration of justice must, as soon as practicable after the date of entry into force of a specific agreement entered into in terms of this section, publish a notice in the Gazette containing the following information- (i) the name of the entity with which a specific agreement has been entered into; (ii) particulars of the resolution or binding instrument establishing the entity; (iii) the date of entry into force of the resolution or instrument; and 993 l6 (iv) the date of entry into force of the specific agreement. (b) The Cabinet member responsible for the administration of justice must, as soon as practicable after- (i) the date of entry into force of a subsequent specific agreement; or {ii) the obligations of the Republic in respect of an entity have ceased, amend or repeal the notice provided for in paragraph (a). Immunity from surrender 12. The provisions of the Diplomatic Immunities and Privileges Act, 2001, apply to a request received from a competent authority of an entity for the surrender of a person who has or is alleged to have committed a crime. Concurrent requests for extradition and surrender 13. A request in terms of section 14{3) by an entity for the surrender of a person to that entity takes preference over a request for the extradition of the same person. 994 17 CHAPTER4 CO-OPERATION WITH AND JUDICIAL ASSISYANCE TO ENTITIES Definitions 14. For the purposes of this Chapter, unless the context otherwise indicates- "appropriate authority" means a relevant organ of an entity referred to in an International Resolution having the function of making, directing or receiving requests for assistance in criminal matters; "crime" means a crime in respect of which an entity has the power to prosecute a person in terms of an International Resolution; "Director-General" means the Director-General of the Department of Justice and Constitutional Development; "proceedings" means criminal proceedings and any other proceedings before an entity, instituted for the purpose of determining whether any act or omission or conduct involves or amounts to a crime by any person, and include an investigation for purposes of a prosecution; and "requesf' means a request for assistance made by an entity in terms of this Chapter. 995 18 Requests for assistance in obtaining evidence 15. (1) A request to obtain evidence in the Republic for use by the entity must be in writing and be submitted to the Director-General. (2) Upon receipt of the request the Director-General must satisfy himself or herself that- (a) proceedings have been instituted by the entity who made the request for assistance; (b) there are reasonable grounds for believing that a crime has been committed which falls within the jurisdiction of the entity; or (c) that it is necessary to determine whether a crime has been committed which falls within the jurisdiction of the entity and that an investigation in respect thereof is being conducted by the entity. (3) For purposes of subsection (2) the Dicector-General may rely on a certificate purported to be issued by the appropriate authority of the entity concerned, stating the facts referred to in paragraph (a), (b) or (c) of that subsection. (4) If the Director-General is satisfied as envisaged in subsection (2), he or she must submit the request for assistance in obtaining evidence to the Cabinet member responsible for the administration of justice for his or her approval. (5) Upon being notified of the Cabinet member's approval the Director- General must forward the request referred to in subsection (1) to the magistrate within whose area of jurisdiction the witness resides. 996 19 Examination of witnesses 16. (1) The magistrate to whom a request has been forwarded in terms of section 15, must cause the person whose evidence is required, to be subpoenaed to appear before him or her to give evidence or to produce any book, document or object. (2) A person referred to in subsection (1) must be subpoenaed in the same manner as a person who is subpoenaed to appear as a witness in proceedings in a magistrate's court. (3) Upon the appearance of the person the magistrate must administer an oath to, or accept an affirmation from, him or her and take the evidence of the person upon interrogatories or otherwise as requested, as if the person was a witness in a magistrate's court in proceedings similar to those in connection with which his or her evidence is required: Provided that- (a) a person who from lack of knowledge arising from youth, defective education or other cause, is found to be unable to understand the nature and import of the oath or the affirmation, may be admitted to give evidence in the proceedings without taking the oath or making the affirmation; and (b) the person must, in lieu of the oath or affirmation, be admonished by the magistrate to speak the truth, the whole truth and nothing but the truth. (4) Upon completion of the examination of the witness the magistrate taking the evidence must certify the evidence to be correct and transmit the record to the Director-General, together with a certificate setting out the costs incurred in 997 20 connection with the examination of the witness, including any extraordinary costs which emanated from the examination of the witness. (5) If the services of an interpreter were used at the examination of the witness, the interpreter must certify that he or she has translated truthfully and to the best of his or her ability, and such certificate shall accompany the documents transmitted by the magistrate to the Director-General. Rights and privileges of witnesses 17. (1) In respect of the giving of evidence or the production of any book. document or object at an examination in terms of section 16, the laws of the Republic relating to privilege as applicable to a witness giving evidence or subpoenaed to produce a book, document or object in a magistrate's court in similar proceedings apply. (2) Where a witness at an examination claims privilege on the ground that he or she could not have been compelled to give the particular evidence in proceedings before the entity, the magistrate must record the witness' objection and may postpone the proceedings in order to obtain from the competent authority of the entity an intimation as to whether or not the witness could in proceedings before the entity be compelled to give the evidence in question. (3) Where a witness' claim to privilege is not recognised by the appropriate authority of the entity the magistrate shall reject his or her objection and proceed to take the evidence. 998 21 (4) Any person required to give evidence at an examination under section 16 is entitled to payment of such expenses and fees as are payable to witnesses in a magistrate's court in proceedings similar to those in connection with which his or her evidence is required. Offences by witnesses 18. (1) Any person subpoenaed to appear to give evidence or produce any book, document or object before a magistrate conducting an examination who, without sufficient cause-- (a) fails to attend at the time and place specified or to remain in attendance until the conclusion of the examination or until he or she is excused from further attendance by the magistrate conducting the examination; (b) refuses to be sworn or to make affirmation as a witness; (c) having been sworn or having made affirmation, fails to answer satisfactorily any question put to him or her; or (d) fails to produce any book, document or object in his or her possession or custody or under his or her control, which he or she was subpoenaed to produce, is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 1 year or to both such fine and imprisonment. (2) Any person who, after having been sworn or having made an affirmation or having been admonished as referred to in section 16, gives false evidence before the person taking an examination knowing such evidence is to be false or not .--r¥' 999 22 knowing or believing it to be true, is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 3 year or to both such fine and imprisonment. Attendance of witnesses before entity 19. (1) A subpoena issued by the appropriate authority of an entity for the attendance of a person in any proceedings before that entity must be transmitted to the Director-General by the person receiving it in the Republic. (2) Upon receipt of the subpoena the Director-General must immediately transmit it to the magistrate within whose area of jurisdiction the person resides or is present. (3) Upon receipt of the subpoena the magistrate must, if he or she is satisfied that the subpoena was lawfully issued, endorse it for service upon the person. (4) The subpoena may be served as if it was a subpoena issued in the court of such magistrate in proceedings similar to those in connection with which it was issued. (5) Upon service of the subpoena on the witness an amount sufficient to cover his or her reasonable expenses in connection with his or her attendance of the proceedings, must be tendered to him or her. (6) Any person subpoenaed under this section who, without sufficient cause, fails to attend at the time and place specified in the subpoena, is guilty of an 1000 23 offence and liable on conviction to a fine or to imprisonment for a period not exceeding 1 year or to both such fine and imprisonment. (7) Any magistrate's court within whose area of jurisdiction the subpoena has been served or the person subpoenaed resides, has jurisdiction to try such person for a contravention of subsection (6). (8) For the purposes of subsection (6) a return of service indicating that the subpoena was properly served on the person concerned, together with a certificate by the presiding officer of the court where the person was to appear, to the effect that the person failed to appear at the time and place specified in the subpoena, is prima facie proof that the person failed to appear as contemplated in that subsection. Service of process and documents 20. (1) A request to serve process or a document, except a subpoena referred to in section 16, in connection with any proceedings before the entity, on a person in the Republic, must be transmitted to the Director-General. (2) Upon receipt of the request referred to in subsection ( 1) the Director-General must immediately transmit it, together with the process or document, to the Provincial Commissioner of the South African Police Service within whose area of jurisdiction the person resides, for service on the person concerned. (3). Upon receipt of the request the Provincial Commissioner of the South African Police Service must, cause the process or document to be served on the person concerned in the manner specified in the request. 1001 24 (4) The Provincial Commissioner ofthe South African Police Service must send the return of service to the Director-General for transmission to the entity. Enforcement of order of Entity 21. (1) When the Director-General receives a request to enforce an order issued against a person who has been served with a subpoena in terms of section 19 or a process or document in terms of section 20, for which he or she has failed to comply with, the Director-General must transmit the request together with a certified copy of the order to the magistrate within whose area of jurisdiction the person resides or is present. (2) Upon receipt of the request together with a certified copy of the order, a magistrate may, if he or she is satisfied that the order was issued by the appropriate authority of the entity, and is not subject to any review or appeal, issue a warrant for the arrest of the person named in the order. (3) A person arrested in terms ofthe warrant referred to in subsection (2) above, must be brought before a magistrate in whose area of jurisdiction he or she was arrested, within 48 hours of the arrest. (4) The magistrate must order that the person be delivered to the custody of the entity, if he or she is satisfied that- (a) the person arrested is the person named in the order by the competent order of the entity; 1002 25 (b) he or she was served with a subpoena or a process or document in terms of section 19 or 20, and (c) he or she failed to comply with the process. Designation of Republic as State in which sentence may be served and enforcement of sentence 22. (1) The Cabinet member responsible for correctional services, must, as soon as practicable after the commencement of this Act- (a) in consultation with the Cabinet; and (b) with the approval of Parliament, inform an entity, through the Director-General, whether the Republic can be placed on the list of States willing to accept sentenced persons, and if so, of the conditions pertaining to such acceptance. (2) The processes in respect of an acceptance and the conditions pertaining to such acceptance, as contemplated in subsection (1 ), apply with the necessary changes in respect of a revocation of such acceptance or a variation in the conditions pertaining to such acceptance. Enforcement of sentence of imprisonment 23. (1) If the Republic has been placed on the list of any entity contemplated in section 22 and if the entity, in a particular case, designates the 1003 26 Republic as a State in which a person in the proceedings in question must serve a sentence of imprisonment, it must inform the Director-General as soon as possible of such designation. (2) The Director-General must forward such designation to the Cabinet member responsible for correctional services who- (a) may accept or refuse the entity's designation; and (b) through the Director-General, must inform the entity as soon as possible whether the designation is accepted or not. (3) (a) Any person referred to in subsection (1) must, subject to paragraph (b), be committed to a prison in the Republic after the designation referred to in subsection (2) has been accepted and a warrant for his or her detention lawfully issued by the entity is deemed to be a valid warrant for the purposes of section 6 of the Correctional Services Act, 1998 (Act No. 111 of 1998). (b) If the entity, at any time, decides to transfer a sentenced person referred to in paragraph (a) to a prison of another State, the Director-General must, in consultation with the Commissioner of Correctional Services, arrange for the removal of that person from the Republic in the custody of a person authorised by the entity. (4) (a) Subject to paragraphs (b) and (c), the provisions of the Correctional Services Act, 1998, and the domestic law of the Republic apply to a person contemplated in subsection (3). (b) The sentence of imprisonment referred to in subsection (1) may only be modified by the relevant authorities in the Republic at the request of the -1 1004 27 entity, as a result of an appeal by the person serving the sentence to, or review by, the entity (c) The relevant authorities in the Republic must, as far as possible, ensure that communication between persons serving a sentence as contemplated in subsection (3)(a) and the entity can take place freely and confidentially. (5) For purposes of subsection 3(b), any person entering and passing through the Republic in custody by virtue of any warrant or order lawfully issued by an entity is, during his or her passage through the Republic, and despite any other law, deemed to be in lawful custody and may be held in any police cell, lock-up, prison or any other detention facility which may be designated by the Cabinet member responsible for the administration of justice, or for safety and security, as the case may be, for that purpose. President may enter into agreements 24. The President may on such condition as he or she may deem fit enter into any agreement with an entity for co-operation and judicial assistance, or enforcement of any order or sentence referred to in the International Resolution, and may agree to any amendment of the agreement. 1005 28 CHAPTER 5 MISCELLANEOUS Provision of legal aid 25. Any person called upon to give evidence in the Republic at an examination in terms of Chapter 4 may apply for legal aid in terms of the Legal Aid South Africa Act. 2014 (Act No. 39 of 2014). Amendments to the Criminal Procedure Act, 1977 26. (1) Section 18 of the Criminal Procedure Act, 1977, is hereby amended by the addition of the following subparagraph after subparagraph (i): "(j) a crime as provided for in section 4(1) of the Jurisdiction of Courts and Cooperation relating to International Law Crimes Act, 2016." (2) Schedule 1 to the Criminal Procedure Act, 1977, is hereby amended by the addition of the following item: "A crime provided for in section 4(1) of the Jurisdiction of Courts and Cooperation relating to International Law Crimes Act, 2016." (3) Schedule 6 to the Criminal Procedure Act, 1977, is hereby amended by the addition of the following item: "A crime provided for in section 4(1) of the Jurisdiction of Courts and Cooperation relating to International Law Crimes Act, 2016." _..,.-- ,J 1006 29 (4) Schedule 8 to the Criminal Procedure Act, 1977, is hereby amended by the addition of the following item: "A crime provided for in section 4(1) of the Jurisdiction of Courts and Cooperation relating to International Law Crimes Act, 2016." Short title and commencement 27. This Act is called the Jurisdiction of Courts and Cooperation relating to International Law Crimes Act, 2017, and comes into operation on a date to be fixed by the President by proclamation in the Gazette. 1007 30 SCHEDULE CRIMES [Section 4(1)] Part/ Genocide 1. "Genocide" means any of the following conduct committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such: (a) Killing members of the group; (b) causing serious bodily harm or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; or (e) forcibly transferring children of the group to another group Part2 Crimes Against Humanity 2. "A crime against humanity" means any of the following conduct when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: 1008 31 (a) Murder; (b) extermination; (c) enslavement; (d) deportation or forcible transfer of population; (e) imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) torture; (g) rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation or any other form of sexual violence of comparable gravity; (h) persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in item 3, or other grounds that are universally recognised as impermissible under international law, in connection with any act referred to in this item or any crime within the jurisdiction of the Court; (1) enforced disappearance of persons; (j) the crime of apartheid; or (k) other inhumane acts of a similar character intentionally causing great suffering or serious injury to body or to mental or physical health. 3. For the purpose of paragraph 1 of this Part- (a) "attack directed against any civilian population" means a course of conduct involving the multiple commission of acts of conduct referred to in paragraph 1 of 1009 32 this Part against any civilian population, pursuant to or in furtherance of a State or organisational policy to commit such attack; {b) "extermination" includes the intentional infliction of conditions of life, among others, the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population; {c) "enslavement" means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children; {d) "deportation or forcible transfer of population" means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under intemationallaw; {e) "torture" means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain arising only from, inherent in or incidental to, lawful sanctions; {f) "forced pregnancy" means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy; (g) "persecution" me_ans the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity; 1010 33 (h) "the crime of apartheid" means inhumane acts of conduct of a character similar to those referred to in item 1 of this Part, committed in the context of an institutionalised regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime; and (i) "enforced disappearance of persons" means the arrest, detention or abduction of persons by, or with the authorisation, support or acquiescence of a State or a political organisation, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period oftime. 4. The term "gender" refers to both sexes, male and female, within the context of society and does not indicate any meaning different from the above. Part3 War Crimes 5. "War crimes" mean any of the following: (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following conduct against persons or property protected under the provisions of the relevant Geneva Conventions: (i) Willful killing 1011 34 (ii) torture or inhuman treatment, including biological experiments; (iii) willful causing great suffering, or serious injury to body or health; (iv) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; (v) compelling a prisoner of war or other protected persons to serve in the forces of a hostile power; (vi) willful depriving a prisoner of war or other protected persons of the rights of fair and regular trial; (vii) unlawful deportation or transfer or unlawful confinement; or (viii) taking of hostages. (b) Other serious violations of the laws and customs applicable in international armed conflict. within the established framework of international law, namely, any of the following conduct: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in the hostilities; (ii) intentionally directing attacks against civilian objects, that is, objects which are not military objectives; (iii) intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations of 1945, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; 1012 35 (iv) intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessi 1e in relation to the concrete and direct overall military advantage anticipated; (v) attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives; (vi) killing or wounding a combatant who, having laid down his or her arms or having no longer means of defence, has surrendered at discretion; (vii) making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury; (viii) the transfer, directly or indirectly, by the occupying power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory; (ix) intentionally directing attacks against buildings dedicated to relgion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; (x) subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are 1013 36 neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons; (xi) killing or wounding treacherously individuals belonging to the hostile nation or army; (xii) declaring that no quarter will be given; (xiii) destroying or seizing the enemy's property unless such destruction or seizure be imperatively demanded by the necessities of war; (xiv) declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party; (xv) compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war; (xvi) pillaging a town or place, even when taken by assault; (xvii) employing poison or poisoned weapons; (xviii) employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices; (xix) employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions; (xx) employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the 1014 37 international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to the Statute by an amendment in accordance with the relevant provisions set out in Articles 121 and 123 of the Statute; (xxi) committing outages upon personal dignity, in particular humiliating and degrading treatment; (xxii) committing rape, sexual slavery, enforced prostitution, forced pregnancy as defined in paragraph (f) of item 2 of Part 2, enforced sterilisation, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions; (xxiii) utilising the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations; (xxiv) intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; (XXV) intentionally using staNation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions; or (xxvi) conscripting or enlisting children under the age of 15 years into the national armed forces or using them to participate actively in hostilities. 1015 38 (c) In the case of an armed conflict not of an international character, serious violations of Article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following conduct committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause: (i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (ii) committing outrages upon personal dignity, in particular humiliating and degrading treatment; (iii) taking of hostages; or (iv) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognised as indispensable. Paragraph (c) of this Part applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. (e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following conduct: (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities; 1016 39 (ii) intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law; (iii) intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict; (iv) intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; (v) pillaging a town or place, even when taken by assault; (vi) committing rape, sexual slavery, enforced prostitution, forced pregnancy as defined in paragraph (f) of item 2 of Part 2, enforced sterilisation and any other form of sexual violence also constituting a serious violation of Article 3 common to the four Geneva Conventions; (vii) conscripting or enlisting children under the age of 15 years into armed forces or groups or using them to participate actively in hostilities; (viii) ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand; (ix) killing or wounding treacherously a combatant adversary; 1017 40 (x) declaring that no quarter will be given; (xi) subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, which cause death to or seriously endanger the health of such person or persons; or (xii) destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict. (f) Paragraph (e) of this Part applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is a protracted armed conflict between governmental authorities and organised armed groups or between such groups. Op-Ed: An SA-African exodus would irreparably damage the ICC 1 Daily Maverick Page 10181 of4 • Home (http:/lwww.da!lymaverick.co.zal) • Sections • Wired World (http://www.dailymaverick.eo.za/sectionlwired·worldl) • South Africa (http://www.dailymaverlck.co.zalsection/south·afrlcal) • Africa (http://www.dailymaverick.eo.za/section/aflica/) • World (http:/twww.dallymaverick.eo.za/sectionlworidl} • Business (http://www.dailymaverick.eo.za/sectkmlbusinessl) • Life, Etc (http://www.dai!ymaven"ck.eo.za/sectionlllfe·etcl) • Sport (http:/twww.dallymaverick.eo.za/seclion/sportl) • Opln!onlstas (http://www.dailymaverick.eo.za/opin!onistas) • Special Features • Coughing Up For Gold (http://www.dailymaverick.eo.za/spedalarticle/2014..()3-14-COughing-up-for-go!dl) • Until Julius Comes (http:/lwww.dailymaverlck.co.zatspecialarticle/2014-Q7·22·until-julius-comesl) • Brain Porn (http://www.dailymaverlck.eo.za/specialarticle/2014·1 0..07 -brain-porn-best-of-daily-maverick/) • Daily Maverick Podcasts (http:f/www.daUymaverlck.eo.za/specialarticle/2016·05-30-dai!y·maverlck·podcastsl) • Podcasts (http://www .dailymaverick.co.za/speciatarticle/2016·05--30-daily-mavertck-podcastsl) • Newsletter (htlp:/lwww .dailymaverick.co.za/page/SUbscribe-to-First·Thing) • Search() •About • About Us (htlp:t/www.daUymaverlck.eo.za/page/about-usl) • Contact Us (http://www.dailymavetick.eo.za/page/contact-usl) Your get out of jail free card from the thought pollee. 21 November 2016 14:22 (South Africa) DAI1Y MAVERICK (http://www.dailymaverick.co.zal) Africa Op-Ed: An SA-African exodus would irreparably damage the ICC • Z OANGOR & B MEYERSFELD Z OANGOR & B MEYERSFELO Zane Dangor is Special Adviser to the Minister of Social Development. He is an LLM candidate in international law and is writing In his personal capacity. Bonita Meyersfeld is Associate ProfeSSOt of Law and Director o1 the Centre for Applied Legal Studies at Wits Law School. • Africa (http://www.dailymaverick.eo.za/section/africal) • 05 Jun 2016 11:40 (South Africa) by the i speaking to Sudanese President Omar ai-Bashir {R) attending a session of the 24th African Union Summit of the NEPAO Heads of State/Government Orientation Committee (HSGOC) at the AfriCan Union Headquaters in Addis Ababa, Ethiopia, on 29 January 2011. EPA/Ntswe Mokoena (http:/twww.dailymaverick.eo.za/artlclef2016·06·05·op·ed·an-sa-african-exodus·would·ineparably·damage-the-iccJ) These are the legal and political reasons why South Africa should remain within the International Criminal Court to stem global impunity and to alter power relations with respect to peace and security issues within the United Nations, By ZANE DANGOR AND BONITA MEYERSFELD. httn· I lwww. clai lvmaverick.co .za! article/20 16-06-05-op-ed-an-sa-african-exodus-woul. .. 2016/11/21 Op-Ed: An SA-African exodus would irreparably damage the ICC I Daily Maverick Page 21019 of4 The President of South Africa has recently made statements that South Africa may be reconsidering its participation as a state party to the Rome Statute that established the International Criminal Court (ICC). This emerged out of general discontent with the ICC among African states who are of the opinion that the court is disproportionately pursuing prosecutions of African beads of state. South Africa has also been challenged for not complying with the terms of an arrest warrant by the ICC for Sudanese President Omar Al-Basbir. This article will argue that while there is justification for the concerns expressed by African beads of state, the ICC offers Africa and developing countries an effective treaty-based regime to deal with the impunity for international crimes, including by leaders of Israel, the United States and the United Kingdom. The ICC also potentially provides the legal framework to bold corporations legally liable for their role in toxic global economies that drive and sustain poverty and leads to permanent damage to the environment. The Rome Statute also provides a treaty-based remedy that bas the potential to shift elements of power in relation to peace and security issues away from the dictates of the Pennanent Five of the Security Council. Three of the Pennanent Five states are not state parties to the ICC and would benefit from seeing the court fail. Au African withdrawal from the Rome Statute would fortify impunity for the most powerful Global North states. It is important to consider that the African states are in fact at the heart ofthe creation of the ICC. The African voting bloc was pivotal in bringing the ICC into being. Thirty-one African countries were among the first of the 113 states that ratified the statute. This includes South Africa. South Africa signed and ratified the Rome Statute in 1998. It also domesticated the ICC through the passing of the International Criminal Court Act of 2000, one of the first countries to do so on the African continent South Africa and Africa were therefore pioneers in the establishment of the ICC. The leadership role of South Africa and other Mrican states was a veritable David versus Goliath moment against the power of the US. The US famously refused to ratify the Rome Stature for fear of military personnel being prosecuted by a "foreignQ court. The international community feared that the lack of US support would bring an end to the stntggle for an international criminal court. It did not, in part because the power of Africa demanded an end to impunity. The US tried to bully South Africa and three other SADC countries into signing bilateral immunity agreements with the US that would effectively indemnify US citizens from arrest under the ICC Statute. South Africa successfully led the charge to resist these immunity treaties. What then bas served to sour Africa's relationship with the ICC? The most proffered and obvious answer is that the ICC has been disproportionately targeting Africans and particularly Mrican heads of state for prosecution. There is merit to this argument as the ICC's profile cases have involved African leaders. This focus reveals a global inequality, where Africa is demonised, while the crimes of the developed world states remain unaddressed. But our response to this inequality should not be to withdraw from the court- we should demand the type of international justice that the court was designed to achieve. For example, there is sufficient evidence to investigate both Britain's Tony Blair and Israel's Benjamin Netanyabu for specific war crimes in relation to the UK's actions in Iraq and Israel's actions in the occupied territories in Palestine. At the heart of the law of war is the prohibition of violence against, and the mistreatment of, noncombatants, including civilians, prisoners of war, wounded fom1er combatants, sick former combatants or any combatant that is clearly no longer part of the conflict. The killing of combatants is pennitted in lawfully conducted military operations only. Of course there may be civilian casualties in war but the laws of war are dear: all force that may affect citizens must be proportionate and citizens should always be distinguished from the military objective. There is no justification, therefore, for kiUing noncombatants, including children, in war. The evidence gathered by the Russell Tribunal on Palestine reveals deliberate and intentional ki11ing and widespread and systemic destruction of critical civilian infrastructure Such conduct, if proved, would constitute the crime of wilful killing and the causing of great suffering to civilians, the crime of destruction of property, and the crime of excessive incidental deaths. We all know the images of children, limp in the arms of distraught fathers or uncles who try desperately to find help in the post-explosion rubble. This is a crime; this is not a of war; and, unless there is a legal defence, behind the image is a criminal. It is reasonable to expect that a similar evidence gathering exercise in relation to the war in Iraq may lay the basis for specific charges against Tony Blair and senior UK military personnel. If South Mrica decides to leave the ICC and in doing so leads an African exodus, the ICC may be irreparably damaged. This will only setve the interests of major western powers who have never supported the ICC. Wars of aggression aimed at regime change and attendant war crimes will go unpunished. TI1e very impunity that Mrican states were concerned about will continue and the Pem1anent Five in the Security Council will have achieved the death of the court they spurned. Of course there are regional mechanisms that also compel South Africa to take action against African leaders charged under such instruments. If South Africa complies with those obligations, it would still be seen as undennining the sovereignty of African countries and trying to play the role of Big Brother on the continent - a charge that South Africa fastidiously tries to avoid. W11ile the notion of solving African problems through African solutions is correct, it should extend not only to the countries within the continent, but also to those countries whose corporations, militaries and foreign policies are contnbutors to the violence that millions of Africans experience. UM Zane Dangor is Special Adviser to the Minister ofSocial Development. He is an LLM candidate in international law and is writing in his personal capacity. Bonita Meyersjeld is Associate Professor of Law and Director of the Centre for Applied Legal Studies at Wits Law School. Photo: A photo provided by the South African Government Infomation Service sllows South Africa's President Jacob Zuma (L) speaking to Sudanese President Omar (R) attending a session of the 24th African Union Summit oftlw NEPAD Heads of State/Government Orientation Committee (HSGOC) at the African Union lleadquaters in Addis Ababa, Ethiopia, on 29 January 2011. EPA/Ntswe Mokoena • Z OANGOR & B MEYERSFELD httn:/ /www .dailvmaverick.co.za!article/20 16-06-05-op-ed-an-sa-african-exodus-woul... 2016/11/21 Op-Ed: An SA-African exodus would irreparably damage the ICC I Daily Maverick Page41020 of4 iab. lht1p111absa.n•V> south africc • About Us (http://www.da!!ymaverlck.eo.za/pageiabout-us) • Contact Us (http://www.dailymaverick.eo.za/page/contact-us) • Reader Covenants (http://www.dailymaverick.eo.za/page/reader-covenant) • legal (http:/lwww.dallymaveriek.eo.za/pagellegal) • Privacy Polley (http:/twww.daUymaverick.co.zafpage/privacy-policy) • Comments Policy (http:/lwww.dallymaverlck.co.zalpage/comments-po!lcy) • ASS (http:/lwww.dailymaverick.eo.za/rss) Everything you could ever need on the go, 24n This advert Will setf-destruct itt .. 4 Return to Sponsor Return to Site httn://www.dailvmaverick.co.za/article/20 16-06-05-op-ed-an-sa-african-exodus-woul... 2016/11/21 Op-Ed: An SA-African exodus would irreparably damage the ICC 1 Daily Maverick Page1021 3 of4 Z DANGOR & B MEYERSFELO Zane Oangor ls Special Adviser to the Minister of Socia! Development. He is an LLM candidate in international !aw and is writing in hfs personal capacity. 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Altematlvely, you are welcome to send a letter to the ed!lor (mailto:letters@dal!ymaverk:k.co.za?subject=Letter"/.,20to%20the%2Qeditor). htto :/ /www .dailvmaverick.co.za/article/20 16-06-0 5-op-ed -an-sa-african-exodus- woul ... 2016/11/21 I( 1022 Office of the State Attorney Pretoria PRIVATE BAG X 91 SALU BUILDING PRETORIA 316 THABO SEHUME STREET (ANDRIES) 0001 CNR THABO SEHUME AND FRANCIS BAARD STREET(SCHOEMAN) TEL (SWITCHBOARD). (012) 3091500 (DIRECTLINE) (012)3091563 (SECRETARY) (012) 3091520 FAX. (012) 309 1649150 086 507 0909 DOCEX 298 16 NOVEMBER 2016 ENO J MEIER MY REF: 7641120161Z49 EMAIL [email protected] YOUR REF PBP 1853 NORTON ROSE FULBRIGHT CAPETOWN By E-mail. [email protected] cc TO: THE HON JUSTICE AP LEDWABA DEPUTY JUDGE PRESIDENT GAUTENG HIGH COURT PRETORIA By E-mail [email protected] I [email protected] AND TO: APPLICANT'S ATTORNEY MINDE SHAPIRO & SMITH INC E-mail: [email protected] C/0 KLAGSBRUN EDELSTEIN BOSMAN DE VRIES INC PRETORIA REF HUGO STRUWIGNS/HS000056) E-mail: [email protected] AND TO: 4'" and 5'" RESPONDENTS' ATTORNEYS THE STATE ATTORNEY CAPE TOWN By E-mail: [email protected] 1023 AND TO: SIXTH RESPONDENT'S ATTORNEY WEBBER WENTZEL SANOTON,JOHANNESBURG Tel: 063 003 0640 Ref: M Hathorn I 30017 42 E-mail: [email protected] AND TO: SEVENTH RESPONDENT'S ATTORNEY ROSIN WRIGHT ROSENGARTEN WESTCLIFF Ref: D Rosengarten 1 K Mitchell Tel: 011 486 024213 Fax: 086 218 4930 E-mail: [email protected] I [email protected] AND TO: EIGHTH RESPONDENT'S ATTORNEYS WERKSMANS ATTORNEYS SANDTON Ref: Ms 0 NaidooldniPROB9999.5261#4481350v1 Tel: 011 535 8318 Fax: 011 535 8623 E-mail: [email protected] I [email protected] AND TO: NINTH RESPONDENT'S ATTORNEYS LEGAL RESOURCES CENTRE JOHANNESBURG Ref: 1113715LIMJ Power/ A Singh Tel: 011 836 9831 E-mail: [email protected] I [email protected].. AND TO: TENTH APPLICANT'S ATTORNEY WEBBER WENTZEL ATTORNEYS 90 RIVONIA ROAD SANDTON JOHANNESBURG Ref: V Movshovich I P Dela I D Cron I D Rafferty 3005285 Tel: 011 530 5422 Fax: 011 530 6422 E-mail: [email protected] [email protected] [email protected] [email protected] [email protected] Access to Justice for All Always quote my reference number 1024 -'0 DEMOCRATIC ALLIANCE vs MINISTER OF INTERNATIONAL RELATIONS AND COOPERATION AND OTHERS HIGH COURT, GAUTENG DIVISON ·CASE NO: 83145/16 1. Your letter of today's date to the DA's attorneys (who appear to have copied you with our letter to the DJP of yesterday) refers. 2. You will doubtless also now have been appraised by the DA's attorneys of the directions meeting convened for 3.30pm today at His Lordship's chambers. 3 As regards your letter, it is not now appropriate (or indeed possible) to traverse the contents of your letter. But the explicit election you record by CASAC not to seek intervention in the High Court proceedings (of which CASAC has been aware for some weeks) is noted. 4 It is further placed on record that this election has been made by CASAC following, and notwithstanding, the dismissal yesterday of CASAC's application to the Constitutional Court 5. As regards CASAC's purported reservation of a 'right' (notwithstanding its election not to seek to join as a party in the first-instance proceedings) to seek intervention at a time of its choosing in any appeal, this is not accepted. 6. CASAC has no such "right"; if it had a right to seek intervention as a party in the litigation it has now made an election not to exercise it; it has no entitlement, notwithstanding its deliberate choice, to seek to intervene subsequently. 7 Should CASAC further elect not to be represented at the directions meet1ng with the DJP this afternoon, that further election is also recorded. 8. All our clients' rights are reserved. ·· hfully JM IER FO STATE ATIORNEY PRETORIA Access to Justice for All Always quote my reference number If 1025 17-11-16;01:38PM; # 1I 4 '· OFFICE OF THE DEPUTY JUDGE PRESIDENT HIGH COURT OF SOUTH AFRICA, GAUTENG PROVINCIAL DIVISION, PRETORIA North Gauteng High Court Building, Cnr. Madiba & Paul Kruger Sirs, Room 7.15, Seventh Floor Tel. (012) 315 7576- Fax. (012) 315 7600- Direct Fax- 0865612100- E-mail; [email protected] 17 November 2016 TO: MINDE SHAPIRO & SMITH INC Email: Your ref: Hugo StruwigNS/HS000056 Our Ref: 83145/16/DJP.LEDWABA/EG CC: THE STATE ATTORNEY, PRETORIA Email: [email protected] You're Ref: 7641/2016/249 Our Ref: 83145/16/DJP.LEDWABAIRS CC: THE STATE ATIORNEY, CAPE TOWN Email: [email protected] CC: WEBBER WENTZEL ATTORNEYS Email: [email protected] CC: ROSIN WRIGHT ROSENGARTEN ATIORNEY Email: [email protected]/ [email protected] CC: WERKSMANS A TIORNEYS Email: [email protected] CC: LEGAL RESOURCES CENTRE Email: [email protected] 1026 17-11-16;01 :38PM; # 21 4 CC: WEBBER WENTZEL ATTORNEYS F. mail: [email protected] Dear Sir /Madam RE: DEMOCRATIC ALLIANCE I THE MINISTER OF INTERNATIONAL RELATIONS AND COOPERATION & OTHERS- CASE NO: 83145/16 1. The abovementioned matter and our meeting on 6 November 2016 refers. 2. The matter is hereby set down for hearing on 5 & 6 DECEMBER 2016. You are directed to serve and file the notice of set down together with a copy of this letter attached to it within 7 (seven) days after receipt hereof. The notice of set down must be filed at the office of the Deputy Judge President, 71h Floor, Room 7.15, High Court Building. 3. I direct that: 3.1 The 1•1 to 3ro Respondents should file their supplementary affidavits by no later than 16h00 on 21 November 2016. 3.2 The Applicant should file its heads of argument, practice note and further affidavits, if necessary, by no later than 16h00 on 24 November 2016. 3.3 The 1$1 to 3ro Respondents should file their heads of arguments and practice notf'l hy no IRtP.r thl'ln 1fih00 nn 29 NnvP.mhP.r 2016 4 pf 3.4 The 'Supporting Respondents' should file their heads of argument and practice note by no later than 16h00 on 25 November 2016. 4. The Legal Representatives of CASAC (Council for the Advancement of The South African Constitution) stated that it intends to file an application to be 1027 :38PM; # 3/ 4 admitted as amicus curiae. 4.1 CASAC should file its application and heads of argument by no later than 16h00 on 25 November 2016. 5. For convenience sake and for the proper management of the matter the documents should be filed at my office on the 7H' floor and be emailed to ([email protected]. 6. The Applicant should deliver the court file in triplicate duly indexed and paginated to my office no later than 16h00 on 24 November 2016. 7. All queries and/or communications concerning the hearing of this matter must be directed to my office in writing and/or electronically 8. It remains the duty of the all legal representatives to ensure that the court file has been properly indexed and paginated in time and that all documents have been filed accordingly as directed at the office of the Deputy Judge President, High Court Pretoria, 71" Floor, Room 7.15. 9. Should it, for any reasons, transpire that this matter will not proceed on the given date, you are directed to inform the Office ofthe Deputy Judge President. immediately. 10. None availability of counsel representing any ofth-'l parties shall simply not be allowed as a reason for the matter not to proceed on the date of hearing arranged witb my office. Regards A P DEPUTY JU GE PRESIDENT GAUTENG HIGH COURT, PRETORIA 1028 IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION PRETORIA Case no. 83145/2016 In the application of DEMOCRATIC ALLIANCE Applicant And MINISTER OF INTERNATIONAL RELATIONS AND COOPERATION First respondent MINISTER OF JUSTICE AND CORRECTIONAL SERVICES Second respondent PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA Third respondent SPEAKER OF THE NATIONAL ASSEMBLY Fourth respondent CHAIRPERSON OF THE NATIONAL COUNCIL OF PROVINCES Fifth respondent SOUTHERN AFRICAN LITIGATION CENTRE Sixth respondent PROFESSOR JOHN DUGARD AND PROFESSCR GUENAEL METTRAUX Seventh respondent AMNESTY INTERNATIONAL LIMITED Eighth respondent 1029 PEACE AND JUSTICE INITIATIVE AND CENTRE FOR HUMAN RIGHTS Ninth respondent HELEN SUZMAN FOUNDATION Tenth respondent FILING SHEET DOCUMENT: l ST' 2'n AND 3•n RESPONDENTS' FURTHER SUPPLEMENTARY AFFIDAVIT ON ROLL: 5 AND 6 DECEMBER 2016 FILED BY:. l ST' 2ND AND 3RD RESPONDENTS' ATTORNEY STATE ATTORNEY PRETORIA SALU BUILDING 316 THABO SEHUME STREET PRETORIA, Ref: 7641/2016/Z49 Tel: 012-309 1520 Fax: 086 507 0909 E-mail: [email protected] [email protected] Euq: J Meier (082 940 3938) TO: THE REGISTRAR OF THE HIGH COURT, GAUTENG DIVISION PRETORIA E-mail: [email protected] [email protected] 1030 AND TO: APPLICANT'S ATTORNEY MINDE SHAPIRO & SMITH INC TYGERVALLEY OFFICE PARK II TYGERVALLEY BELLVILLE Tel: 021 918 9000 Fax: 0219189070 E-mail: [email protected] I [email protected] C/0 KLAGSBRUN EDELSTEIN BOSMAN DE VRIES INC PRETORIA E-mail: [email protected] SERVED BY E-MAIL AS PER ARRANGEMENT AND TO: ATTORNEYS FOR CASAC NORTON ROSE FULBRIGHT lOTH FLOOR ' NORTON ROSE HOUSE 8 RIEBEECK STREET CAPETOWN Tel: 021 405 1205 Fax: 021 405 5582 E-mail: [email protected] C/0 KLAGSBRUN EDELSTEIN BOSMAN DE VRIES INC PRETORIA E-mail: [email protected] SERVED BY E-MAIL AS PER ARRANGEMENT 1031 AND TO: FOURTH and FIFTH RESPONDENTS' ATTORNEYS THE STATE ATTORNEY 22 LONG STREET CAPETOWN By E-mail: [email protected] SERVED BY E-MAIL AS PER ARRANGEMENT AND TO: SIXTH RESPONDENT'S ATTORNEY WEBBER WENTZEL 90 RIVONIA ROAD SANDTON JOHANNESBURG, 2196 Tel: 063 003 0640 Ref: M Hathorn I 3001742 E-mail: [email protected] SERVED BY E-MAIL AS PER ARRANGEMENT AND TO: SEVENTH RESPONDENT'S ATTORNEY ROSIN WRIGHT ROSENGARTEN LE VAL, NORTH BLOCK SOUTH WING, GROUND FLOOR 45 JAN SMUTS AVENUE (CNR THE VALLEY RD) WESTCLIFF Ref: D Rosengarten I K Mitchell Tel: 011 486 024213 Fax: 086 218 4930 E-mail: [email protected] [email protected] SERVED BY E-MAIL AS PER ARRANGEMENT 1032 AND TO: EIGHTH RESPONDENT'S ATTORNEYS I 55 5TH STREET SANDTON Ref: Ms D Naidoo/dn/PROB9999.526/#4481350vi Tel: 011 535 83 I 8 Fax: 01 I 535 8623 E-mail: [email protected] I [email protected] SERVED BY E-MAIL AS PER ARRANGEMENT AND TO: NINTH RESPONDENT'S ATTORNEYS CENTRE FOR HUMAN RIGHTS LEGAL RESOURCES CENTRE FLOOR 16, BRAM FISCHER TOWERS 20 ALBERT STREET, MARSHALL TOWN JOHANNESBURG Ref: lll3715LIMJ Power/ A Singh Tel: 011 836 9831 E-mail: Michaeliallrc.org.za I [email protected] SERVED BY E-MAIL AS PER ARRANGEMENT AND TO: TENTH RESPONDENT'S ATTORNEY WEBBER WENTZEL ATTORNEYS 90 R1VONIA ROAD SANDTON JOHANNESBURG Ref: V Movshovich I P DeJa I D Cron I D Rafferty 3005285 Tel: 0 I 1 530 5422 Fax: 011 530 6422 E-mail: [email protected] [email protected] [email protected] [email protected] [email protected] SERVED BY E-MAIL AS PER ARRANGEMENT 1033 IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA Case no: 83145116 In the application between: DEMOCRATIC ALLIANCE Applicant and MINISTER OF INTERNATIONAL RELATIONS AND COOPERATION First respondent MINISTER OF JUSTICE AND CORRECTIONAL SERVICES Second respondent PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA Third respondent SPEAKER OF THE NATIONAL ASSEMBLY Fourth respondent CHAIRPERSON OF THE NATIONAL COUNCIL OF PROVINCES Fifth respondent SOUTHERN AFRICA LITIGATION CENTRE Sixth respondent PROFESSORS JOHN DUGARD AND GUENAEL METTRAUX Seventh respondent AMNESTY INTERNATIONAL LIMITED Eighth respondent PEACE AND JUSTICE INITIATIVE AND CENTRE FOR HUMAN RIGHTS Ninth respondent HELEN SUZMAN FOUNDATION Tenth respondent FIRST TO TIDRD RESPONDENTS' FURTHER SUPPLEMENTARY AFFIDAVIT I, the undersigned, JAKOBUS MEIER 1034 2 do hereby make oath and state as follows: I. I am an attorney of this Court, and the deponent to the first to third respondents' main answering affidavit filed on 9 November 2016. I am duly authorised to depose also to this affidavit. 2. The facts to which I depose are within my own knowledge. They are true and correct. 3. In the urgent circumstances in which the Minister's supplementary answering affidavit was deposed, not all annexures were available for inclusion. I depose to this affidavit in order to place those annexures before Court. These documents are of an official nature. Their status and contents are beyond controversy. I therefore respectfully submit that they should be received. No prejudice is caused by introducing them in a separate affidavit, which affidavit wi II be filed either simultaneously with the Minister's supplementary affidavit or very soon thereafter. It is, moreover, in the interests ofjustice that these documents be placed before Court. 4. The first document is the note verbale delivered today, to which the Minister's affidavit refers. It is attached, marked "Y". The second is the Minister's tabling of the instrument of withdrawal in the National Assembly for parliamentary approval. It is attached, marked "ZI ". The third and final document is the Acting Minister of International Relations and Cooperation's tabling of the instrument of withdrawal in the National Council of Provinces for parliamentary approval. It is attached, marked "Z2". 1035 3 5. Collectively these three documents comprise less than ten pages. The facts borne out by them and their essential contenthave already been confirmed by the respondents' answering affidavits. These annexures therefore introduce no new factual matter; they merely constitute the best evidence offacts already adduced. 6. I therefore ask that this affidavit and is annexures be received. I certify that the deponent acknowledged to me that he knows and understands the contents of this declaration, has no objection to taking the prescribed oath and considers the prescribed oath to he binding on his conscience; that the deponent thereafter uttered the words, I swear that the contents thi. s declaration are true, so help me God; and signed this declaration in my presence at '¥!JUA4. on day of November 2016. Full names: 0 l " Designation: )'4/S 11\.B Area: p" e-ft:; Y''t 1036 NV 66/2016 The Embassy of the Republic of South Africa presents its compliments to the Secretariat of the Assembly of States Parties and has the honour to request the Court to provide guidance with respect to the rules and procedures governing the processes in terms of Article 97 and Article 87(7) of the Rome Statute, in which South Africa is presently engaged with the court. In this respect, it is recalled that on 28 May 2015, the Registrar of the Court wrote to remind South Africa of its obligation to cooperate with the Court in the arrest of President AI Bashir of Sudan and also of its obligations to consult the Court should it face any difficulties in implementing the request for cooperation. On 12 June 2015, South Africa requested to consult the Court in terms of Article 97 of the Statute. A preliminary meeting between South Africa and the Court took place on 12 June 2015. South Africa's view in respect of this meeting was formally recorded in the minutes of the meeting. It was the understanding of South Africa that the official Article 97 consultations will take place officially on 15 June 2015. Despite this understanding, on 13 June 2015 the Prosecutor made an urgent request to the Court for clarity regarding the Article 97 consultations, without any notice being given to South Africa of the request and without South Africa being afforded an opportunity to be heard. In response to this request by the Prosecutor, the Pre-Trial Chamber II issued the Decision following the Prosecutor's request for an order further 1037 clarifying that the Republic of South Africa is under the obligation to immediately arrest and surrender AI Bashir on the same day, 13 June 2015. In part the decision, referring to the Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar AI Bashir's Arrest and Surrender to the Court, 9 April 2014, /CC-02/05-01/09-195, reads as follows, (see in particular paras 28 to 31): "7. In this sense, the Chamber clarified that "there also exists no impediment at the horizontal level"' regarding the arrest and surrender to the COurt of Omar AI Bashtr (paragraph 29). In addition, the Chamber stated that since the Security COuncil, acting under Chapter VII of the UN Charter, had lifted the immunities of Omar AI Bashir by virtue of Resolution 1593(2005), the Republic of the Democratic Republic of Congo could not invoke any other decision, including that of the African Union, providing for any obligation to the contrary (paragraph 31). 8. The same applies squarely to the Republic of South Africa as well. The delegation from the Republi<: of South Africa was reminded of this during the meeting of 12 June 2015. In particular, the Presiding Judge repeatedly made clear, in unequivocal terms, that the Republic of South Africa Is under the obligation to immediately arrest and surrender Omar AI Bashir as soon as on its territory and that the consultation between the COurt and the Republic of South Africa under article 97 (or any other further discussion on the point at any later stage) do not trigger any suspension or stay of this standing obligation. As there exists no Issue which remains unclear or has not already been explicitly discussed and settled by the Court, the consultations under article 97 of the Statute between the COurt and the Republic of South Africa have therefore ended." South Africa responded on 15 June 2015, stating its views that the consultation requested under Article 97 had not been concluded, that it and the South African domestic court system are seized with the matter and that the 13 June 2015 Decision is in violation of South Africa's basic right to fair procedures and more, particularly, the right to be heard. 1038 On 4 September 2015, the Pre-Trial Chamber II of the Court issued an order on The Situation in Darfur, Prosecutor v Omar Hassan Ahmad AI Bashir: Order Requesting Submissions from the Republic of South Africa for the purposes of Proceedings under Article 87(7} of the Rome Statute. The Court requested South Africa in terms of Article 87(7) of the Rome Statute to submit its views for the purposes of proceedings under Article 87(7) of the Rome Statute, with particular reference to their failure to arrest and surrender Omar AI-Bashir, no later than 5 October 2015. On 5 October 2015, South Africa requested an extension of the time limit for submitting its views in terms of Regulation 35 of the Regulations of the Court until such time as the domestic legal processes have been finalised. The Court gr'lnted this extension by taking a Decision on the request of the Republic of South Africa for an extension of the time limit for submitting their views for the purposes of proceedings under Artide 87(7} of the Rome Statute on 15 October 2015. Subsequently, progress reports on the domestic court processes in South Africa were submitted to the Court on 21 December 2015, 23 December 2015, 4 May 2016 and 23 May 2016. The domestic court processes have now been concluded. South Africa wishes to record that the Supreme Court of Appeal of South Africa (whose judgment has of 18 November 2016 become final) has stated that the rule of customary international law pertaining to the immunity of sitting heads of state has not changed. South Africa will be submitting its views and observations for the purposes of the Article 87(7) proceedings mentioned above. 1039 In this respect, South Africa has the honour to request the Court to provide guidance on the rules and procedures which would govern the submission of Its views and observations in terms of Article 87{7), In view thereof that South Africa also wishes the Court to, as part of this process, review the application of Article 97 during the consultations between South Africa and the Court, as well as the finding resulting from these consultations. In this respect, rt is recalled that South Africa is of the view that its right to a fair hearing has been impaired by the way in which the Article 97 consultations were conducted. The domestic processes in South Africa having been now concluded by the Constitutional Court's directive issued on 18 November 2016, South Africa is considering an appeal against the decision of the Pre-Trial Chamber made on 13 June 2015 and requires guidance on how an appeal should be filed. The Embassy of the Republic of South Africa to the Kingdom of the Netherlands avails itself of the opportunity to renew to the Secretariat of the Assembly of States Parties the assurance of its high consideration. The Hague 21 November 2016 The Secretariat of the Assembly of States Parties The Hague 1040 Office of the Chairperson: NCOP 0 3 NOV 2016 RECEIVED Private BQ X276, PRET0.R:JA. 0001 • SAW &ild!a:l. 316 ThaboSdwmc Stmlt, PRETORIA • TU fftl2) «164669 • Pu:; (Dli)406468G Privaa Baa; X256. CAP£ TOWN. 8000 • 120 PloiD Stra#. CAPE TOWN • Tel: {121) 1&11'100 • ..,_ (821).., 1130 Ref: ll/8lalg/1 Enq: Minisfly E..mall: [email protected] Ms T R Modise, MP Chairperson of the National Council of Provinces POBox15 CAPETOWN 8000 Dear Ms Modise SUBMISSION OF BILL IN TERMS OF JOINT RULE 159 Cabinet approved the introduction of the Implementation of the Rome Statute of the International Criminal Court Act Repeal Bill, 2016, into Parliament on 19 October 2016. A copy of the Bill and an explanatory memorandum are hereby submitted to you in accordance with Rule 159 of the Joint Rules of Parliament. With kind regards TM MASUTHA, MP (Adv) OF JUSTICE AND CORRECTIONAL SERVICES .. 1041 MIN!STEfl llfi!!!!NAfiONAlllElA110l\IE AND COOP!iii!I\Till!\1 l'lE!'UBUC Of SOUTH AF!l!GI\ PrNat!tSag X152, t:>RETOR!A, 0001, South Africa • ORll:lmbo Bldg, 460 Soulpan&barg PRETORIA • Tal: 012 3611000 • fax: 012 3291000 17th Floor, Room 1700, 1::!0 Pll!in SWat. CAPE TOWN, 8001 • Tel: 021 4643700 • Fu: 1:'21 465 6548 • www.dlreo.gov.m 03 November 2016 Dear Chairperson TABLING OF THE INSTRUMENT OF WITHDRAWAL FROM THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT In terms of section 231 (2) of the Constitution of the Republic of South Africa, 1996 I hereby table the Instrument of Withdrawal from the Rome Statute of the International Criminal Court and its attached Declaratory Statement for approval by parliament. The Instrument of Withdrawal was deposited to the United Nations Secretary- General on 19 October 2016, and will become effective one year later. The electronic version of the document and 60 copies of the report will be delivered to the Clerk of Papers prior to tabling as per parliamentary requirements. Ms T Modise, MP Chairperson of the National Council of Provinces Parliament CAPETOWN 8000 1042 1043 1044 1045 1046 1047 1048 1049 1050 1051 1052 1053 1054 1055 1056 1057 1058 1059 1060 1061 1062 1063 1064 1065 1066 1067 1068 1069 1070 1071 1072 1073 1074 1075 1076 1077 1078 1079 1080 1081 1082 1083 1084 1085 1086 1087 1088 1089 1090 1091 1092 1093 1094 1095 1096 1097 1098 1099 1100 1101 1102 1103 1104 1105 1106 1107 1108 1109 1110 1111 1112 1113 1114 1115 1116 1117 1118 1119