Introduction
The recent unlawful suspension of senior Hawks officials has centered on alleged renditions of Zimbabwean Foreign Nationals and the Reports made by the Independent Police Investigative Directorate (“IPID”) to the National Prosecuting Authority (“NPA”). Some confidential documents have leaked into the public domain.
Rendition is a term that has only recently emerged in international discourse. It refers to the illegal forced movement of a person from one country to another. It should be distinguished from legal forms of such forced movement, which are deportation and extradition. It is important to understand the legal basis for deportation and extradition.
Deportation
According to the Immigration Act 13 of 2002 (“Immigration Act”), deportation is an act which is aimed at causing an illegal foreigner to leave the country. An illegal foreigner is one who is in the country in contravention of the Immigration Act.
Section 32 states that any illegal foreigner shall depart from the country unless authorised by the Director-General to remain in the country pending the application for the status of such a foreigner. This section goes on to further state that any illegal foreigner shall be deported.
Section 34 deals with the deportation and detention of illegal foreigners. This section states that without the need for a warrant, an immigration officer may arrest an illegal foreigner or cause that illegal foreigner to be arrested and deported. The immigration officer may, pending such deportation, detain the person at a place determined by the Director General. This can only be done if the foreigner concerned is notified of:
- Such decision in writing to be deported and of their right to appeal;
- Request to be released if no warrant is issued within 48 hours;
- To be informed of their rights in a language that they understand;
- May not be held in detention for longer than 30 calendar days without a warrant from a court, which can be extended on reasonable grounds shown for a period not exceeding 90 days; and
- To be held in detention giving effect to their human rights and dignity.
This section goes further to state that it is an offence for a person who has been deported and returns without lawful authority to do so, that person will then be guilty of an offence and liable to a fine on conviction or imprisonment for a period not exceeding 12 months.
Extradition
Extradition is regulated by international as well as national instruments. The Extradition Act, 67 of 1962 (“Extradition Act”), deals exclusively with the Extradition Agreements entered into by the Republic of South Africa.
Section 1 defines an extraditable offence as “any offence which in terms of the law of the Republic and of the foreign State concerned is punishable with a sentence of imprisonment or other form of deprivation of liberty for a period of six months or more, but excluding any offence under military law which is not also an offence under the ordinary criminal law of the Republic and of such foreign State”.
Section 2 allows for the creation of Extradition Agreements between South Africa and foreign States. The Extradition Agreements create reciprocal obligations for the surrender of persons convicted or accused of involvement in the commission of extraditable offences. Section 4 requires that any request in terms of an Extradition Agreement, for extradition, be made to the Minister and delivered by hand.
Section 9 prescribes that a person detained under a warrant, in terms of the Extradition Agreement, needs to be brought before a Magistrate for the holding of an enquiry. Section 14 prohibits the surrender of persons to the requesting country before the time in which to lodge an appeal has ended.
Allegations and Court Procedure
In response to an allegation that Zimbabweans were forcibly removed from South Africa with the participation of the Hawks, reports have been referred to the National Prosecuting Authority for its consideration, a process still under way.
Certain documents from this investigation have been unofficially. Included are two reports from the Independent Police Investigation Directorate. The IPID Reports were compiled in terms of section 28 (1)(a) and (h) of the IPID Act, 1 of 2011 (“IPID Act”). In terms of section 7(4) and (5) any criminal activities need to be reported to the NPA who will then notify the Executive Director about prosecution, if any. The NPA is not bound by police recommendations and must apply their minds to all information received. In this process, they may refer matters back to the police for further investigation. The NPA still has to decide if anyone should be prosecuted and, if so, what charges they should face.
We shall post a comparison of the IPID reports on our website shortly.
What Justice Requires
All persons are presumed innocent until proven guilty by a court of law. These procedures are regulated by various instruments. The most notable instrument is the Criminal Procedure Act, 51 of 1977, which provides as follows:
- Section 6 gives the Prosecuting Authority the power to withdraw a charge or stop the prosecution;
- Section 40(1)(k) deals with arrests by officers in the case where there is no warrant. It requires that arrest in these instances is only lawful where there is a reasonable suspicion or reliable evidence has been provided in regard to a crime committed outside of the Republic; and
- Section 50 sets out the procedure to be followed after arrest. The provisions expressly include informing the arrested person of their rights as well as the charges brought before them. They are to be brought to a lower court within 48 hours of the arrest being affected.
The Criminal Procedure Act further sets out the processes to be followed for the lawful prosecution and sentencing of accused persons as follows:
- Chapter 2 deals with Search Warrants, Entering of Premises, Seizure, Forfeiture and Disposal of Property Connected with Offences.
- Chapter 5 deals with Arrests.
- Chapter 9 deals with Bail.
- Chapter 11 deals with Assistance to the Accused.
- Chapter 14 deals with the Charge.
- Chapter 15 deals with the Plea.
- Chapter 22 deals with Conduct of Proceedings.
The process allows for the realisation of justice and the protection of persons most in need thereof. The processes mandate that the accused will have their day in court, a court that is open and fair. Only in court can the evidence of witnesses and arguments about culpability be tested.
It follows that the drawing inferences from limited, untested and unofficially released information is unjust. The allegations about persons mentioned in the IPID Reports has not yet led to a decision by the NPA, let alone been adjudicated upon by a court. In particular, it is illegitimate to use it in political battles.
Chris Pieters - Legal Researcher - chris@hsf.org.za
Arvitha Doodnath - Legal Researcher - arvitha@hsf.org.za
