International co-operation in criminal matters: The South African contribution

• Jurisdiction: South Africa
• Citation: (2003) 16 SACJ 323
• Author: Dr Jan d'Oliveira SC
• Pages: 323-369
• Published date: 24 May 2019
• Date: 24 May 2019

International co-operation

in criminal matters:

The South African contribution

DR JAN d'OLIVEIRA SC

*

ABSTRACT

The growing number of international and regional multilateral initiatives directed at

combating notorious cross-border crime and organised criminality signifies the

reliance of the international community on states and their domestic law regimes to

co-operate in international endeavours in promoting criminal justice commensurate to

the task. Mutual legal assistance is a new field of law that transcends the traditional

territorialism which limited co-operation to extradition and related informal

assistance. Prior to 1996 mutual assistance was known to South Africa but was

undeveloped. Gauging South Africa's contribution requires acquaintance with the

main features and concepts of today's international mutual legal assistance. Against

that background it becomes possible to assess the developments in the country's law

and practice as symbolised by the adoption of the International Co-operation in

Criminal Matters Act 75 of 1996, but not restricted thereto. The assessment reveals that

the Republic's contribution is substantial if the legislative framework as enhanced by

its treaty-making initiatives are considered. As with any process of growth there are

aspects requiring attention, some legislative and regulatory but mainly in the area of

role-player co-ordination and administrative arrangements.

Introduction

International co-operation in criminal matters in its widest sense embraces

extradition and mutual legal assistance. The latter, which is the subject of this

article, has emerged as a form of co-operation in its own right, in contrast to

the former which is the well-established older sibling. This article concerns

South Africa's positioning of itself to both render and request international

assistance in criminal and related matters, and thus its developing

contribution to effecting mutuality of assistance between jurisdictions.

The desire for closer co-operation in order to effectively combat

international crime resulted in the need to sweep aside the traditional

reluctance to go beyond merely facilitating extradition. Crime ignores

* B Iuris (Pret), LLB cum laude (SA) LLD (SA),

Professor Extraordinaire in Public Law,

University of Pretoria; formerly Attorney-General: Eastern Cape; Attorney-General: Transvaal;

and Deputy National Director of Public Prosecutions; and Head: National Prosecution

Service.

323

(2003) 16 SACJ 323

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324

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SACJ •

(2003) 16

national borders. It has anticipated and is now the negative side of

globalisation. It is unrealistic to expect national criminal justice processes to

remain frustrated within national borders while criminality subverts national

and/or international interests.

It is a central doctrine of international law that enforcement jurisdiction is

strictly territorial in nature.

1

Hence the need for a

requesting state

(or

country)

to request authorised help from a

requested state

(or

country);

the

former has no right to pursue its own investigations or to engage in

unorthodox enforcement practices in the latter's territory.

An effective legal basis to provide mutual legal assistance is crucial. To

enable a jurisdiction to respond to a request for assistance, it is necessary that

its domestic law makes it possible for it to render assistance. Enabling

legislation is a pre-requisite specifically in the realm of coercive measures.

Without such a legal basis, a requesting state may also not be able to give an

undertaking of reciprocity (if required) when it directs a request to its

counterpart.

Treaties (bilateral or multilateral) — naturally underpinned by domestic

legislation — constitute an enhanced and flexible basis for international co-

operation. In the absence of a treaty or multilateral instrument, however, co-

operation is founded in international comity (or goodwill). South Africa has,

through practice and enabling legislation, positioned itself to render

assistance 'unilaterally', ie even in the absence of a treaty relationship.

Mutual legal assistance is a broad concept which includes many informal

measures. No particular significance attaches to its various descriptions viz

'legal' or 'judicial' assistance, as it exists to promote administration of criminal

justice broadly understood: Information sharing, investigation, prosecution or

judicial proceedings. Of greater import is the distinction between 'formal' and

'informal' assistance.

2

The latter is illustrated by many decades of police-to-

police co-operation, whether in relation to extradition or otherwise or by

liaison between prosecuting authorities.

This article seeks to enable an appreciation of South Africa's contribution

to present-day international co-operation by referring to certain historical

aspects, the situation in our law before 1996, main features of international

mutual legal assistance and, in the light of the preceding, the present South

African dispensation.

1

Gilmore

Combating International Drugs Trafficking: The 1988 United Nations Convention

Against Illicit Traffic in Narcotic Drugs and Psychotrophic Substances

3. Gilmore at 23 cites

the

Lotus Case (France v Turkey

(1927) PCIJ Reports Series A No 10) where the court stated:

'Now the first and foremost restriction imposed by international law upon a State is that —

failing the existence of a permissive rule to the contrary — it may not exercise its power in any

form in the territory of another State'. Cf the provisions of s 2(3) of the Convention.

2

Infra Part C3.

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International co-operation in South Africa

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Part A: Some Historical Aspects

As there has always been an international dimension to civil litigation,

lawyers are familiar with the tenets of private international law, the Hague

Conventions

3

and domestic statutory instruments such as the Foreign Courts

Evidence Act.

4

Criminal law has always been regarded as 'territorial' and as falling outside

the domain of private international law. The Hague Conference has never

worked in the criminal law field.

5

That is not to say that the criminal law has

not learnt from international civil co-operation: in recent years the realities of

drug-trafficking, organised international criminal syndicates and terrorism

have thrust it into a steep learning curve.

6

In international matters, lawyers are acquainted with extradition, a criminal

law-related field, as a very formal, inter-state transaction.

?

Yet mutual legal

assistance has grown out of extradition practice supplemented by

international police co-operation and stimulated by co-operation in civil

matters. Mutual legal assistance does not, and may not, concern itself with

the arrest of any suspect: extradition remains directly concerned with the

liberty and/or life of a suspect (or fugitive), which probably explains the strict

formalities characterising extradition. But it is here that a search for the

origins of mutual legal assistance commences.

1. Early Treaties and Legislation

In

Jones on &tradition and Mutual Assistance

it is noted that an extradition

treaty between France and The Netherlands, signed on 8 November 1844,

referred to the obtaining of evidence.

8

Apparently such a provision was an

accompaniment to rendition in order to assist in judicial proceedings pending

against the fugitive in the requesting state. To enable such assistance to be

rendered, England enacted s 24 of the Extradition Act of 1870 which provided:

'The testimony of any witness may be obtained in relation to any criminal matter

pending in any court or tribunal in a foreign state in like manner as it may be

3

See McClean

International Co-operation in Civil and Criminal Matters

5-6 and 18 et seq on

the Hague Conference on Private International Law and its work, notably the Hague

Convention on Civil and Commercial Matters of 15 November 1965.

4

Act 80 of 1962.

5

McClean op cit (n3) 6.

6

Ibid: 'The mobility of criminals, the international effects of their activity, and the easy transfer

of illicit profits to overseas havens have transformed attitudes'.

The practice of extradition was always regarded as an exception to the old 'principle that one

state will not take cognisance of the penal law of another state'. Circumstances have so

changed as to cause the principle to be re-examined — McClean op cit (n3) 155.

8

Jones QC

Jones on Extradition and Mutual Assistance

456.

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