PRESIDENT'S OFFICE
No. 1875.
20 November 1996
NO. 75 OF 1996: INTERNATIONAL CO-OPERATION IN CRIMINAL MATTERS ACT, 1996.
It is hereby notified that the President has assented to the following Act
which is hereby published for general information:-
GENERAL EXPLANATORY NOTE:
Words in bold type indicate omissions from existing enactments.
Words in italics indicate insertions in existing enactments.
ACT
To facilitate the provision of evidence and the execution of sentences in
criminal cases and the confiscation and transfer of the proceeds of crime
between the Republic and foreign States; and to provide for matters connected
therewith.
(English text signed by the President.)
(Assented to 6 November 1996.)
BE IT ENACTED by the Parliament of the Republic of South Africa, as
follows:-
CHAPTER 1
Definitions
1. In this Act, unless the context indicates otherwise-
(i) "agreement" includes a multilateral convention to which the Republic
is a signatory or to which it has acceded and which has the same
effect as an agreement referred to in section 27; (xiii)
(ii) "appropriate government body" means any government body in a
foreign State having the function of making, directing or receiving
requests for assistance in criminal matters; (xv)
(iii) "confiscation order" means a confiscation order made under the
Proceeds of Crime Act, 1996; (viii)
(iv) "Director-General" means the Director-General: Justice; (iii)
(v) "evidence" includes all books, documents and objects produced by a
witness; (v)
(vi) "foreign confiscation order" means any order issued by a court or
tribunal in a foreign State aimed at recovering the proceeds of any
crime or the value of such proceeds; (i)
(vii) "foreign restraint order" means any order issued by a court or
tribunal in a foreign State in respect of an offence under the law
of that State, aimed at restraining any person from dealing with any
property; (ii)
(viii) "foreign State" means any State outside the Republic and includes
any territory under the sovereignty or control of such State; (xxi)
(ix) "letter of request" means a letter requesting assistance of the
nature contemplated in sections 2, 13, 19 and 23; (xvii)
(x) "magistrate" includes an additional magistrate and an assistant
magistrate; (x)
(xi) "magistrate's court", in relation to-
(a) any person against whom a foreign confiscation order or a
foreign sentence may be enforced, means the magistrate's court
of the district in which any such person-
(i) resides, carries on business or is employed; or
(ii) holds any movable or immovable property;
(b) any corporate body against which a foreign confiscation order or
foreign sentence may be enforced, means the magistrate's court
of the district in which the registered office or main place of
business of such corporate body is situated;
(c) any partnership against which a foreign confiscation order or
foreign sentence may be enforced, means the magistrate's court
of the district in which-
(i) any place of business of such partnership is situate;
(ii) such partnership holds any movable or immovable property;
or
(iii) any member thereof resides;
(d) any foreign confiscation order dealing with any particular
property, means the magistrate's court of the district in which
such property is to be found on the date of registration of any
such foreign confiscation order; (xi)
(xii) "Minister" means the Minister of Justice; (xii)
(xiii) "prescribed" means prescribed by regulation; (xx)
(xiv) "proceedings" means criminal proceedings and any other proceedings
before a court or other tribunal, instituted for the purpose of
determining whether any act or omission or conduct involves or
amounts to an offence by any person; (xvi)
(xv) "property" means money or any other movable, immovable, corporeal
or incorporeal thing and includes any interest therein and all
proceeds thereof; (iv)
(xvi) "regulation" means any regulation made under this Act; (xiv)
(xvii) "requested State" means any foreign State to which a request for
assistance in respect of any criminal matter in the Republic is
directed; (xix)
(xviii) "requesting State" means any foreign State from which a request
for assistance in respect of any criminal matter is received;
(xviii)
(xix) "restraint order" means a restraint order made under the Proceeds
of Crime Act, 1996; (ix)
(xx) "Supreme Court", in relation to-
(a) any person against whom a foreign restraint order may be
enforced, means the division of the Supreme Court of the area in
which any such person-
(i) resides, carries on business or is employed; or
(ii) holds any movable or immovable property;
(b) any corporate body against which a foreign restraint order may
be enforced, means the division of the Supreme Court of the area
in which the registered office or main place of business of such
corporate body is situate;
(c) any partnership against which a foreign restraint order or
foreign sentence may be enforced, means the division of the
Supreme Court of the area in which-
(i) any place of business of such partnership is situate;
(ii) such partnership holds any movable or immovable property;
or
(iii) any member thereof resides;
(d) any foreign restraint order dealing with any particular
property, means the division of the Supreme Court of the area in
which such property is to be found on the date of registration
of any such foreign restraint order; (vii)
(xxi) "this Act" includes a regulation made thereunder. (vi)
CHAPTER 2
Mutual provision of evidence
Issuing of letter of request
2. (1) If it appears to a court or to the officer presiding at proceedings
that the examination at such proceedings of a person who is in a foreign State,
is necessary in the interests of justice and that the attendance of such person
cannot be obtained without undue delay, expense or inconvenience, the court or
such presiding officer may issue a letter of request in which assistance from
that foreign State is sought to obtain such evidence as is stated in the letter
of request for use at such proceedings.
(2) A judge in chambers or a magistrate may on application made to him or
her issue a letter of request in which assistance from a foreign State is
sought to obtain such information as is stated in the letter of request for use
in an investigation related to an alleged offence if he or she is satisfied-
(a) that there are reasonable grounds for believing that an offence has been
committed in the Republic or that it is necessary to determine whether
an offence has been committed;
(b) that an investigation in respect thereof is being conducted; and
(c) that for purposes of the investigation it is necessary in the interests
of justice that information be obtained from a person or authority in a
foreign State.
(3) Subject to subsection (4), a letter of request shall be sent to the
Director-General for transmission-
(a) to the court or tribunal specified in the letter of request; or
(b) to the appropriate government body in the requested State.
(4) (a) In a case of urgency a letter of request may be sent directly to the
court or tribunal referred to in subsection (3)(a), exercising jurisdiction in
the place where the evidence is to be obtained, or to the appropriate
government body referred to in subsection (3)(b).
(b) The Director-General shall as soon as practicable be notified that a
letter of request was sent in the manner referred to in paragraph (a) and he or
she shall be furnished with a copy of such a letter of request.
Attendance at examination
3. (1) Where a letter of request has been issued in terms of section 2(1),
any party to such proceedings may, provided that it is permitted by the law of
the requested State-
(a) submit interrogatories which the court or presiding officer issuing the
letter of request may attach to the letter of request; or
(b) appear at the examination, either through a legal representative or, in
the case of an accused who is not in custody or in the case of a private
prosecutor, in person, and may examine, cross-examine and re-examine the
witness.
(2) Where a letter of request has been issued in terms of section 2(2), the
person in charge of the investigation relating to the alleged offence may,
provided that it is permitted by the law of the requested State-
(a) submit interrogatories which the judge or magistrate issuing the letter
of request may attach to the letter of request; or
(b) appear at the examination and question the person concerned.
(3) (a) Where proceedings have been instituted and the application for a
letter of request is made by the State the court or presiding officer may as a
condition of the letter of request order that the costs of legal representation
for the accused be paid by the State.
(b) Notwithstanding the fact that a presiding officer has made an order
contemplated in paragraph (a), he or she may, if he or she is of the opinion
that a refusal by the accused to admit the evidence obtained by means of the
letter of request is unreasonable and unjustifiable, at the conclusion of the
proceedings make such order against the accused as to the costs of sending the
letter of request and all proceedings to give effect thereto as he or she may
reasonably deem appropriate.
Record of proceedings at examination
4. (1) The court or presiding officer issuing the letter of request shall
request-
(a) that an accurate record of the proceedings at the examination of the
witness be kept according to the procedure normally followed in the
requested State; and
(b) that the person presiding at the examination make an accurate record of
the witness's refusal to answer any question or to produce any book,
document or object, and of the reasons for such refusal.
(2) (a) A court or presiding officer issuing a letter of request may request
that a video recording of the proceedings at the examination of a witness be
made by a person designated for that purpose by the court or presiding officer
or by the requested State.
(b) A video recording contemplated in paragraph (a) shall form part of the
record of the proceedings at the examination and may be referred to by the
court or tribunal before which the evidence obtained by the letter of request
is tendered, to determine any fact regarding-
(i) the manner in which the examination was concluded; or
(ii) the conduct and demeanour of the witness while giving evidence.
Admissibility of evidence obtained by letter of request
5. (1) Evidence obtained by a letter of request shall be deemed to be
evidence under oath if it appears that the witness was in terms of the law of
the requested State properly warned to tell the truth.
(2) Evidence obtained by a letter of request prior to proceedings being
instituted shall be admitted as evidence at any subsequent proceedings and
shall form part of the record of such proceedings if-
(a) each party against whom the evidence is to be adduced agrees to the
admission thereof as evidence at such proceedings; or
(b) the court, having regard to-
(i) the nature of the proceedings;
(ii) the nature of the evidence;
(iii) the purpose for which the evidence is tendered;
(iv) any prejudice to any party which the admission of such evidence
might entail; and
(v) any other factor which in the opinion of the court should be taken
into account,
is of the opinion that such evidence should be admitted in the interests
of justice.
(3) The provisions of subsection (2) shall not render admissible any
evidence which would be inadmissible, had such evidence been given at the
subsequent proceedings by the witness from whom it was obtained.
(4) Evidence obtained by a letter of request after the institution of
proceedings shall form part of the record of such proceedings and shall be
admitted as evidence by the court or presiding officer which issued the letter
of request in so far as it is not inadmissible at such proceedings.
Inspection of evidence obtained by letter of request
6. Where a letter of request is issued after the institution of proceedings,
the evidence so obtained together with the record of the examination of the
witness shall be open to inspection by the parties to such proceedings.
Foreign requests for assistance in obtaining evidence
7. (1) A request by a court or tribunal exercising jurisdiction in a foreign
State or by an appropriate government body in a foreign State, for assistance
in obtaining evidence in the Republic for use in such foreign State shall be
submitted to the Director-General.
(2) Upon receipt of such request the Director-General shall satisfy himself
or herself-
(a) that proceedings have been instituted in a court or tribunal exercising
jurisdiction in the requesting State; or
(b) that there are reasonable grounds for believing that an offence has been
committed in the requesting State or that it is necessary to determine
whether an offence has been so committed and that an investigation in
respect thereof is being conducted in the requesting State.
(3) For purposes of subsection (2) the Director-General may rely on a
certificate purported to be issued by a competent authority in the State
concerned, stating the facts contemplated in paragraph (a) or (b) of the said
subsection.
(4) The Director-General shall, if satisfied as contemplated in subsection
(2), submit the request for assistance in obtaining evidence to the Minister
for his or her approval.
(5) Upon being notified of the Minister's approval the Director-General
shall forward the request contemplated in subsection (1) to the magistrate
within whose area of jurisdiction the witness resides.
Examination of witnesses
8. (1) The magistrate to whom a request has been forwarded in terms of
section 7(5) shall 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 and upon the appearance of such person the magistrate shall
administer an oath to or accept an affirmation from him or her, and take the
evidence of such person upon interrogatories or otherwise as requested, as if
the said 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 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: Provided further that such
person shall, in lieu of the oath or affirmation, be admonished by the
magistrate to speak the truth, the whole truth and nothing but the truth.
(2) A person referred to in subsection (1) shall 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 completion of the examination of the witness the magistrate taking
the evidence shall transmit to the Director-General the record of the evidence
certified by him or her to be correct, together with a certificate showing the
amount of expenses and costs incurred in connection with the examination of the
witness.
(4) If the services of an interpreter were used at the examination of the
witness, the interpreter shall 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
9. (1) In respect of the giving of evidence or the production of any book,
document or object at an examination in terms of section 8, the law 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, shall
apply.
(2) Where a witness at such an examination claims privilege on the ground
that he or she could not have been compelled to give the particular evidence in
criminal proceedings in the requesting State, the magistrate shall record the
witness' objection and may postpone the proceedings in order to obtain from a
competent authority in the requesting State an intimation as to whether or not
the witness could in criminal proceedings in the requesting State be compelled
to give the evidence in question.
(3) Where a witness' claim to privilege is not recognised by a competent
authority in the requesting State the magistrate shall reject his or her
objection and proceed to take the evidence.
(4) Any person required to give evidence at an examination under section 8
shall be 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
10. (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, 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, or refuses to be sworn or to make affirmation as a witness, or
having been sworn or having made affirmation, fails to answer satisfactorily
any question put to him or her, or 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, shall be guilty of an offence and liable
on conviction to a fine, or to imprisonment for a period not exceeding three
months.
(2) Any person who, after having been sworn or having made an affirmation or
having been admonished as contemplated in section 8(1), gives false evidence
before the person taking an examination knowing such evidence to be false or
not knowing or believing it to be true, shall be guilty of an offence and
liable on conviction to the penalty prescribed by law for perjury.
Attendance of witnesses in certain States
11. (1) When a subpoena purporting to be issued by a proper officer of a
competent court of law in any State mentioned in Schedule I for the attendance
of any person in any proceedings before that court is received from such
officer by any magistrate within whose area of jurisdiction such person resides
or is, such magistrate shall, if he or she is satisfied that the subpoena was
lawfully issued, endorse it for service upon such person, whereupon it 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.
(2) 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, shall be tendered to him or her.
(3) Any person subpoenaed under this section who, without sufficient cause,
fails to attend at the time and place specified in the subpoena, shall be
guilty of an offence and liable on conviction to a fine, or to imprisonment for
a period not exceeding three months.
(4) Any magistrate's court within whose area of jurisdiction the subpoena
has been served or the person subpoenaed resides, shall have jurisdiction to
try such person for a contravention of subsection (3).
(5) For the purposes of subsection (3) 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 said person was to
appear, to the effect that such person failed to appear at the time and place
specified in the subpoena, shall be prima facie proof that the said person
failed to appear as contemplated in that subsection.
Witnesses from foreign States attending court in Republic not to be arrested in
Republic
12. No witness residing in a foreign State and who attends a court or
tribunal in the Republic shall, while so attending, be liable to be arrested in
the Republic on any civil warrant for debt or on a criminal charge for the
commission of an offence incurred or allegedly committed in the Republic,
before his or her arrival in the Republic for the purpose of his or her
attendance of such court or tribunal.
CHAPTER 3
Mutual execution of sentences and compensatory orders
Request to foreign State for assistance in recovering fine or compensation
13. (1) If it appears to a court which has sentenced a person to the
payment of a fine or made an order against him or her for the payment of
compensation to another person that such person does not have sufficient
property in the Republic from which the fine or compensation can be recovered
but that he or she does have property in a foreign State, the court may issue a
letter of request in which assistance is sought from the foreign State
concerned.
(2) The letter of request may include a request for the recovery of all
costs and expenses incurred in connection with the recovery of the fine or
compensation and that such costs and expenses be levied against the property of
the convicted person from whom the fine or compensation is recovered.
(3) A letter of request issued by a court in terms of subsection (1) shall
be sent to the Director-General who shall transmit it-
(a) to a court or tribunal specified in the request, exercising jurisdiction
in the place where the fine or compensation is to be recovered; or
(b) to the appropriate government body in the requested State.
Satisfaction of fines or compensation
14. Any amount recovered pursuant to a request for assistance made under
section 13, less the costs of the recovery thereof, shall first be applied to
satisfy or reduce the outstanding amount of the fine, and thereafter the
balance shall be applied to satisfy or, if such amount is not sufficient, in
reduction of the outstanding amount of the compensatory order.
Registration of foreign sentence
15. (1) When the Director-General receives a request from a foreign State
for assistance in the Republic to recover a fine to which a person has been
sentenced in criminal proceedings in the requesting State, or for the execution
of an order for the payment of compensation for damages to any person made in
such proceedings, he or she shall, if satisfied-
(a) that the sentence or order is final and not subject to review or appeal;
(b) that the court which imposed the sentence or made the order had
jurisdiction;
(c) that the person on whom the sentence was imposed or against whom the
order was made, had the opportunity of defending himself or herself;
(d) that the sentence or order cannot be satisfied in full in the country in
which it was imposed; and
(e) that the person concerned holds property in the Republic, submit the
request to the Minister for approval.
(2) Upon receiving the Minister's approval that the sentence or compensatory
order may be executed in the Republic the Director-General shall lodge with the
clerk of a magistrate's court a certified copy of the document evidencing the
foreign sentence or order and such clerk of the court shall thereupon register
the sentence or order and the amount payable thereunder as reflected in the
said document.
(3) The clerk of the court shall forthwith give written notice of the
registration of the sentence or order to the person on whom it was imposed or
against whom it was made or who has effective control over the relevant
property in the Republic and shall notify such person that he or she may within
the prescribed period and in the prescribed manner lodge an application for the
setting aside of the registration thereof.
Minister may exercise discretion
16. Without limiting the Minister's discretion in any manner, he or she may
refuse a request for the execution of a foreign pecuniary sentence or
compensatory order submitted in terms of section 15(1) if he or she is
satisfied that the surrender of the person upon whom the sentence was imposed
or against whom the order was made, would not have been ordered under any law
of the Republic relating to extradition, had a request for the extradition of
such person been received.
Effect of registration of sentence or compensatory order
17. (1) When a foreign sentence or compensatory order has been registered
in terms of section 15, that sentence or order shall have the effect of a civil
judgment of the court at which it has been registered, for the amount reflected
therein in favour of the Republic as represented by the Minister.
(2) A sentence or order registered in terms of section 15 shall not be
executed before the expiration of the period within which an application may be
made in terms of section 15(3) for the setting aside of the registration
thereof, or if such an application was made, before the final decision of such
application.
(3) The Director-General shall, subject to any agreement or arrangement
between the requesting State and the Republic, pay over to the requesting State
any amount realised in the execution of a registered sentence or order, less
all expenses incurred in connection with the execution of such sentence or
order.
Setting aside of registration of foreign sentence
18. (1) The registration of a foreign sentence or compensatory order in
terms of section 15 shall, on the application of any person on whom the
sentence was imposed or against whom the order was made, be set aside if the
court at which it was registered is satisfied-
(a) that the sentence or order was registered contrary to a provision of
this Act;
(b) that the court of the requesting State had no jurisdiction in the
matter;
(c) that the sentence or order is subject to review or appeal;
(d) that the person on whom the sentence was imposed or against whom the
order was made did not appear at the proceedings concerned, or did not
receive notice of the said proceedings as prescribed by the law of the
requesting State or, if no such notice has been prescribed, that he or
she did not receive reasonable notice of such proceedings so as to
enable him or her to defend him or her at the proceedings;
(e) that the enforcement of the sentence or order would be contrary to the
interests of justice; or
(f) that the sentence or order has already been satisfied in any manner,
including the serving of imprisonment in default of payment.
(2) The court hearing an application referred to in subsection (1) may at
any time postpone the hearing of the application to such date as it may
determine.
CHAPTER 4
Confiscation and transfer of proceeds of crime
Request to foreign State for assistance in enforcing confiscation order
19. (1) When a court in the Republic makes a confiscation order, such court
may on application to it issue a letter of request in which assistance in
enforcing such order in a foreign State is sought if it appears to the court
that a sufficient amount to satisfy the order cannot be realised in the
Republic and that the person against whom the order has been made owns property
in the foreign State concerned.
(2) The amount to be levied by such request shall be sufficient to cover, in
addition to the amount of the confiscation order, all costs and expenses
incurred in the issuing and the executing of the request.
(3) A letter of request contemplated in subsection (1) shall be sent to the
Director-General for transmission-
(a) to the court or tribunal specified in the request; or
(b) to the appropriate government body in the requested State.
Registration of foreign confiscation order
20. (1) When the Director-General receives a request for assistance in
executing a foreign confiscation order in the Republic, he or she shall, if
satisfied-
(a) that the order is final and not subject to review or appeal;
(b) that the court which made the order had jurisdiction;
(c) that the person against whom the order was made, had the opportunity of
defending himself or herself;
(d) that the order cannot be satisfied in full in the country in which it
was imposed;
(e) that the order is enforceable in the requesting State; and
(f) that the person concerned holds property in the Republic,
submit such request to the Minister for approval.
(2) Upon receiving the Minister's approval of the request contemplated in
subsection (1), the Director-General shall lodge with the clerk of a
magistrate's court in the Republic a certified copy of such foreign
confiscation order.
(3) When a certified copy of a foreign confiscation order is lodged with a
clerk of a magistrate's court in the Republic, that clerk of the court shall
register the foreign confiscation order-
(a) where the order was made for the payment of money, in respect of the
balance of the amount payable thereunder; or
(b) where the order was made for the recovery of particular property, in
respect of the property which is specified therein.
(4) The clerk of the court registering a foreign confiscation order shall
forthwith issue a notice in writing addressed to the person against whom the
order has been made-
(a) that the order has been registered at the court concerned; and
(b) that the said person may, within the prescribed period and in the
prescribed manner, apply to that court for the setting aside of the
registration of the order.
(5) (a) Where the person against whom the foreign confiscation order has
been made is present in the Republic, the notice contemplated in subsection (4)
shall be served on such person in the prescribed manner.
(b) Where the said person is not present in the Republic, he or she shall in
the prescribed manner be informed of the registration of the foreign
confiscation order.
Effect of registration of foreign confiscation order
21. (1) When any foreign confiscation order has been registered in terms of
section 20, such order shall have the effect of a civil judgment of the court
at which it has been registered in favour of the Republic as represented by the
Minister.
(2) A foreign confiscation order registered in terms of section 20 shall not
be executed before the expiration of the period within which an application in
terms of section 20(4)(b) for the setting aside of the registration may be
made, or if such application has been made, before the application has been
finally decided.
(3) The Director-General shall, subject to any agreement or arrangement
between the requesting State and the Republic, pay over to the requesting State
any amount recovered in terms of a foreign confiscation order, less all
expenses incurred in connection with the execution of such order.
Setting aside of registration of foreign confiscation order
22. (1) The registration of a foreign confiscation order in terms of
section 20 shall, on the application of any person against whom the order has
been made, be set aside if the court at which it was registered is satisfied-
(a) that the order was registered contrary to a provision of this Act;
(b) that the court of the requesting State had no jurisdiction in the
matter;
(c) that the order is subject to review or appeal;
(d) that the person against whom the order was made did not appear at the
proceedings concerned or did not receive notice of the said proceedings
as prescribed by the law of the requesting State or, if no such notice
has been prescribed, that he or she did not receive reasonable notice of
such proceedings so as to enable him or her to defend him or her at the
proceedings;
(e) that the enforcement of the order would be contrary to the interests of
justice; or
(f) that the order has already been satisfied.
(2) The court hearing an application referred to in subsection (1) may at
any time postpone the hearing of the application to such date as it may
determine.
Request to foreign State for assistance in enforcing restraint order
23. (1) When a court or judge in the Republic makes a restraint order, such
court or judge may issue a letter of request in which assistance in enforcing
such order in a foreign State is sought if it appears to such court or judge
that the person against whom the order has been made owns property in the
foreign State concerned.
(2) A letter of request contemplated in subsection (1) shall be sent to the
Director-General for transmission-
(a) to the court or tribunal specified in the request; or
(b) to the appropriate government body in the requested State.
Registration of foreign restraint order
24. (1) When the Director-General receives a request for assistance in
enforcing a foreign restraint order in the Republic, he or she may lodge with
the registrar of a division of the Supreme Court a certified copy of such order
if he or she is satisfied that the order is not subject to any review or
appeal.
(2) The registrar with whom a certified copy of a foreign restraint order is
lodged in terms of subsection (1), shall register such order in respect of the
property which is specified therein.
(3) The registrar registering a foreign restraint order shall forthwith give
notice in writing to the person against whom the order has been made-
(a) that the order has been registered at the division of the Supreme Court
concerned; and
(b) that the said person may within the prescribed period and in terms of
the rules of court apply to that court for the setting aside of the
registration of the order.
(4) (a) Where the person against whom the foreign restraint order has been
made is present in the Republic, the notice contemplated in subsection (3)
shall be served on such person in the prescribed manner.
(b) Where the said person is not present in the Republic, he or she shall in
the prescribed manner be informed of the registration of the foreign restraint
order.
Effect of registration of foreign restraint order
25. When any foreign restraint order has been registered in terms of
section 24, that order shall have the effect of a restraint order made by the
division of the Supreme Court at which it has been registered.
Setting aside of registration of foreign restraint order
26. (1) The registration of a foreign restraint order in terms of section
24 shall, on the application of the person against whom the order has been
made, be set aside if the court at which the order was registered is satisfied-
(a) that the order was registered contrary to a provision of this Act;
(b) that the court of the requesting State had no jurisdiction in the
matter;
(c) that the order is subject to review or appeal;
(d) that the enforcement of the order would be contrary to the interests of
justice; or
(e) that the sentence or order in support of which the foreign restraint
order was made, has been satisfied in full.
(2) The court hearing an application referred to in subsection (1) may at
any time postpone the hearing of the application to such date as it may
determine.
CHAPTER 5
Miscellaneous
President may enter into agreements
27. (1) The President may on such conditions as he or she may deem fit
enter into any agreement with any foreign State for the provision of mutual
assistance in criminal matters and may agree to any amendment of such
agreement.
(2) The Minister shall as soon as practical after Parliament has agreed to
the ratification of, accession to or amendment or revocation of an agreement
referred to in subsection (1), give notice thereof in the Gazette.
Delegation by Minister
28. (1) The Minister may delegate to an official of the Department of
Justice any function conferred upon him or her by this Act, except a function
referred to in section 33.
(2) A function so delegated, when performed by the delegate, shall be deemed
to have been performed by the Minister.
(3) The delegation of any function under this section shall not prevent the
performance of such function by the Minister himself or herself.
Delegation by Director-General
29. (1) The Director-General may delegate to an official of the Department
of Justice any function conferred upon him or her by or under this Act.
(2) A function so delegated, when performed by the delegate, shall be deemed
to have been performed by the Director-General.
(3) The delegation of any function under this section shall not prevent the
performance of such function by the Director-General himself or herself.
Admissibility of foreign documents
30. Any deposition, affidavit, record of any conviction or any document
evidencing any order of a court, issued in a foreign State, or any copy or
sworn translation thereof, may be received in evidence at any proceedings in
terms of a provision of this Act if it is-
(a) authenticated in the manner in which foreign documents are authenticated
to enable them to be produced in any court in the Republic; or
(b) authenticated in the manner provided for in any agreement with the
foreign State concerned.
Act not to limit provision of other assistance
31. Nothing in this Act contained shall be construed so as to prevent or
abrogate or derogate from any arrangement or practice for the provision or
obtaining of international co-operation in criminal matters otherwise than in
the manner provided for by this Act.
Conversion of currencies
32. If any amount-
(a) recovered in terms of section 13 or 19 in a requested State; or
(b) payable in terms of an order registered under section 15 or 20,
is expressed in a currency other than that of the Republic, such amount
shall be converted into the currency of the Republic on the basis of the
exchange rate-
(i) which, in a case contemplated in paragraph (a), prevails on the date
on which payment is made in the requested State; or
(ii) which, in a case contemplated in paragraph (b), prevailed on the
date on which the order concerned was registered.
Regulations
33. (1) The Minister may make regulations-
(a) with regard to the proof of any matter for the purposes of this Act;
(b) prescribing any matter which shall or may be prescribed under this Act;
and
(c) providing for any matter which he or she may consider necessary or
expedient with a view to achieving the objects of this Act.
(2) Different regulations may be made in respect of different foreign
States.
Amendment of Schedule 1
34. The Minister may by notice in the Gazette amend Schedule I by adding or
deleting the name of any foreign State thereto or therefrom.
Rules
35. (1) Any power to make rules under the Supreme Court Act, 1959 (Act No.
59 of 1959), shall be deemed to include the power to make rules so as to give$
effect to sections 24 and 26 of this Act.
(2) Any power to make rules under the Magistrates' Courts Act, 1944 (Act No.
32 of 1944), shall be deemed to include the power to make rules so as to give
effect to sections 8, 15, 18, 20 and 22 of this Act.
Amendment and repeal of laws
36. The laws mentioned in Schedule 11 are hereby amended or repealed to the
extent indicated in the third column thereof.
Short title and commencement
37. This Act shall be called the International Co-operation in Criminal
Matters Act, 1996, and shall come into operation on a date fixed by the
President by proclamation in the Gazette.
SCHEDULE I
(Section II)
The Kingdom of Lesotho
The Kingdom of Swaziland
The Republic of Botswana
The Republic of Malawi
The Republic of Namibia
The Republic of Zimbabwe
SCHEDULE II
(Section 36)
_______________________________________________________________________________
Number and yearIShort title IExtent of amendment or repeal
of law I I
_______________I__________________________________I_____________________________
Act No. 58 of IInquests Act, 1959 IThe amendment of section 15
1959 I Iby the substitution for
I Isubsection (1) of the
I Ifollowing subsection:
I I
I I "(1) Whenever in the course
I Iof any inquest proceedings it
I Iappears to the judicial
I Iofficer holding the inquest
I Ithat the examination of a
I Iwitness is necessary and that
I Ithe attendance of such
I Iwitness cannot be procured
I Iwithout such delay, expense
I Iof inconvenience as would in
I Ithe circumstances be
I Iunreasonable, the judicial
I Iofficer may dispense with
I Isuch attendance and may
I Iappoint a person to be a
I Icommissioner to take the
I Ievidence of such witness
I Iwhetherwithin the
I IRepublicor elsewherein
I Iregard to such matters or
I Ifacts as the judicial officer
I Imay indicate, and thereupon
I Ithe provisions of section 171
I Iof the Criminal Procedure
I IAct, 1977 (Act No. 51 of
I I1977), shall mutatis mutandis
I Iapply. ".
_______________I__________________________________I____________________________
Act No. 59 of ISupreme Court IThe amendment of section 33
1959 I Iby the substitution for
I Isubsection (1) Act, 1959 of
I Ithe following subsection:
I I
I I "(1) Whenever a commission
I Irogatoire or letter of
I Irequestin connection with
I Iany civil proceedings
I Ireceived from any State or
I Iterritory or court outside
I Ithe Republic, is transmitted
I Ito the registrar of a
I Iprovincial or local division
I Iby the Director-General:
I IJustice, together with a
I Itranslation in English or
I IAfrikaans if the original is
I Iin any other language, and an
I Iintimation that the Minister
I Iconsiders it desirable that
I Ieffect should be given
I Ithereto without requiring an
I Iapplication to be made to
I Isuch division by the agents,
I Iif any, of the parties to the
I Iaction or matter, the
I Iregistrar shall submit the
I Isame to a judge in chambers
I Iin order to give effect to
I Isuch commission rogatoire or
I Iletter of request.".
_______________I__________________________________I____________________________
Act No. 80 of IForeign Courts I1. The substitution for
1962 IEvidence Act, 1962 I section 2 of the following
I I section:
I I
I I "Supreme Court may order
I Iexamination of witness in
I IRepublic in connection with
I Icivil proceedings pending in
I Iforeign court
I I
I I 2. (1) If upon an
I Iapplication in any provincial
I Ior local division of the
I ISupreme Court of South
I IAfrica, it appears to the
I Icourt or any judge that a
I Icourt of law of competent
I Ijurisdiction outside the
I IRepublic, before which any
I Icivilor criminal
I Iproceedings are pending, is
I Idesirous of obtaining the
I Ievidence in relation to such
I Iproceedings of any witness
I Iwithin the jurisdiction of
I Isuch division, the court or
I Ijudge hearing the application
I Imay grant an order for the
I Iexamination of such witness
I Ibefore a person named in such
I Iorderwho, in the case of
I Icriminal proceedings, shall
I Ibe a magistrate.
I I
I I (2) Such an order shall not
I Ibe granted if it appears to
I Ithe court or judge that the
I Ievidence required is the
I Ifurnishing of information in
I Icontravention of the
I Iprovisions of section2 of
I Ithe General Law Amendment
I IAct, 19741 of the
I IProtection of Businesses Act,
I I1978 (Act No. 19 of 1978),
I Ior is in connection with
I Icriminal proceedings of a
I Ipolitical character or that
I Ithe witness is an accused
I Iperson in the proceedings
I Iconcerned.".
I I
I I2. The amendment of section 4
I I by the deletion of
I I subsection (3).
I I
I I3. The amendment of section 7
I I by the substitution for
I I subsection (1) of the
I I following subsection:
I I
I I "(1) Whenever a subpoena
I Ipurporting to be issued by
I Ithe proper officer of a
I Icompetent court of law in any
I Iterritory mentioned in the
I ISecond Schedule for the
I Iattendance in any civilor
I Icriminalproceedings before
I Ithat court of any person, is
I Ireceived from such officer by
I Iany magistrate within whose
I Iarea of jurisdiction such
I Iperson resides or is, such
I Imagistrate shall, if heor
I Isheis satisfied that the
I Isubpoena was lawfully issued,
I Iendorse it for service upon
I Isuch person, whereupon it may
I Ibe served as if it were a
I Isubpoena issued in the court
I Iof such magistrate in
I Iproceedings similar to those
I Iin connection with which it
I Iwas issued.
I I
I I4. The repeal of section 12.
_______________I__________________________________I____________________________
Act No. 51 of ICriminal Procedure Act, 1977 I1. The amendment of section
1977 I I 171.-
I I
I I(a) by the substitution for
I I paragraph (a) of
I I subsection (1) of the
I I following paragraph:
I I
I I "(a) Whenever criminal
I Iproceedings are pending
I Ibefore any court and it
I Iappears to such court on
I Iapplication made to it that
I Ithe examination of any
I Iwitnesswho is resident in
I Ithe Republicis necessary
I Iin the interests of justice
I Iand that the attendance of
I Isuch witness cannot be
I Iobtained without undue delay,
I Iexpense or inconvenience
I Ior, in the case of a
I Iwitness who is resident
I Ioutside the Republic, that
I Ithe attendance of such
I Iwitness cannot be obtained
I Ithe court may dispense with
I Isuch attendance and issue a
I Icommission-
I I
I I(i)to any magistrate
I I where such witness is
I I resident within the
I I Republic; or
I I
I I(ii) to any competent person
I I where such witness is
I I resident outside the
I I Republic.";
I I
I I(b) by the substitution for
I I paragraphs (a) and (b) of
I I subsection (2) of the
I I following paragraphs,
I I respectively:
I I
I I "(a) The magistrateor
I Iother personto whom the
I Icommission is issued, shall
I Iproceed to the place where
I Ithe witness is or shall
I Isummon the witness before him
I Ior her, and take down the
I Ievidence in the manner set
I Iout in paragraph (b).
I I
I I (b) The witness shall give
I Ihisor herevidence upon
I Ioath or affirmation, and such
I Ievidence shall be recorded
I Iand read over to the witness,
I Iand if heor sheadheres
I Ithereto be subscribed by him
I Ior herand the magistrate
I Ior other person
I Iconcerned."; and
I I
I I(c) by the deletion of
I I paragraph (c) in
I I subsection (2).
I I
I I2. The substitution for
I I section 172 of the
I I following section:
I I
I I"Parties may examine witness
I I
I I 172. Any party to
I Iproceedings in which a
I Icommission is issued under
I Isection 171, may-
I I
I I(a) transmit interrogatories
I I in writing which the
I I court issuing the
I I commission may think
I I relevant to the issue,
I I and the magistrateor
I I other personto whom
I I the commission is issued,
I I shall examine the witness
I I upon such
I I interrogatories; or
I I
I I(b) appear before such
I I magistrateor other
I I person, either by a
I I legal representative or,
I I in the case of an accused
I I who is not in custody or
I I in the case of a private
I I prosecutor, in person,
I I and examine the
I I witness.".
I I
I I3. The substitution for
I I section 173 of the
I I following section:
I I
I I "Evidence on commission
I Ipart of court record
I I
I I 173. The Magistrateor
I Iother person, as the case may
I Ibeshall return the evidence
I Iin question to the court
I Iwhich issued the commission,
I Iand such evidence shall be
I Iopen to the inspection of the
I Iparties to the proceedings
I Iand shall, in so far as it is
I Iadmissible as evidence in
I Isuch proceedings, form part
I Iof the record of such
I Icourtand be received in
I Ievidence at any subsequent
I Istage of the case upon its
I Imere production before any
I Iother court.".
_______________I__________________________________I_____________________________
1978 I Isubstituting for subsection
I I(1) the following subsection:
I I
I I "(1) Notwithstanding
I Ianything to the contrary
I Icontained in any law or other
I Ilegal rule, and except with
I Ithe permission of the
I IMinister of Economic Affairs-
I I
I I(a) no judgment, order,
I I direction, arbitration
I I award, interrogatory,
I I commission rogatoire,
I I letters of request or any
I I other request delivered,
I I given or issued or
I I emanating from outside
I I the Republicin
I I connection with any civil
I I proceedingsand arising
I I from any act or
I I transaction contemplated
I I in subsection (3), shall
I I be enforced in the
I I Republic;
I I
I I(b) no person shall in
I I compliance with or in
I I response to any order,
I I direction, interrogatory,
I I commission rogatoire,
I I letters of request or any
I I other request issued or
I I emanating from outside
I I the Republicin
I I connection with any civil
I I proceedings,furnish
I I any information as to any
I I business whether carried
I I on in or outside the
I I Republic.".
_______________I__________________________________I_____________________________
Act No. 32 of IEnforcement of Foreign Civil IThe amendment of section 1 by
1988 IJudgments Act, 1988 Ithe substitution for the
I Idefinition of "judgment" of
I Ithe following definition:
I I
I I " 'judgment' means any
I Ifinal judgment or order for
I Ithe payment of money, given
I Ior made before or after the
I Icommencement of this Act by
I Iany court in any civil
I Iproceedingsor in respect
I Iof compensation or damages to
I Iany aggrieved party in any
I Icriminal proceedings and
I Iwhich is enforceable by
I Iexecution in the country in
I Iwhich it was given or made,
I Ibut does not include any
I Ijudgment or order given or
I Imade by any court on appeal
I Ifrom a judgment or order of a
I Icourt other than a court as
I Idefined by this Act, or for
I Ithe payment of any tax or
I Icharge of a like nature or of
I Iany fine or other penalty, or
I Ifor the periodical payment of
I Isums of money towards the
I Imaintenance of any person;".
_______________I__________________________________I_____________________________
Act No. 140 of IDrugs and Drug Trafficking Act, I1. The repeal of Chapter VI.
1992 I1992 I2. The repeal of section 65.
_______________I__________________________________I_____________________________