Chapter 4
Cooperation with and assistence to Court in or outside South Africa

Part 2
Judicial assistance to court (ss 14-32)

27 Registration of confiscation order

(1) When the Central Authority receives a request for assistance in executing a confiscation order in the Republic made by the Court, it must submit that request to the Cabinet member responsible for the administration of justice for approval, if the Central Authority is satisfied that the-

(a) order is final and not subject to review or appeal;

(b) person against whom the order was made had the opportunity of defending himself or herself;

(c) order cannot be satisfied in full except by confiscating and realising property;

(d) order is enforceable by the Court;

(e) person concerned holds property in the Republic; and

(f) request is supported by the following:

(i) A concise statement of the purpose of the request, including the legal basis and the grounds for the request;

(ii) as much information as possible about the location or identification of the property in question;

(iii) a concise statement of the essential facts underlying the request;

(iv) the reasons for and details of any procedure or requirement to be followed;

(v) any other information that is available and may be relevant in the circumstances.

(2) Upon receiving the approval of the Cabinet member responsible for the administration of justice of the request contemplated in subsection (1), the Central Authority must lodge with the clerk or registrar, as the case may be, of a court in the Republic having jurisdiction, a certified copy of such confiscation order.

(3) When a certified copy of a confiscation order is lodged with a clerk or registrar of a court, that clerk or registrar must, in the prescribed manner, register the confiscation order where the order was for the-

(a) payment of money in respect of the balance of the amount payable thereunder; or

(b) recovery of particular property in respect of the property which is specified therein.

(4) The clerk or registrar of the court registering a confiscation order must immediately issue a notice in writing, addressed to the person against whom the order has been made, to the effect that the-

(a) order has been registered at the court concerned; and

(b) 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 confiscation order has been made is present in the Republic, the notice contemplated in subsection (4) must be served on such person in the prescribed manner.

(b) Where the said person is not present in the Republic, he or she must be informed of the registration of the confiscation order in the prescribed manner.

28 Effect of registration of confiscation order

(1) When any confiscation order has been registered in terms of section 27, such order has the effect of a civil judgment of the court at which it has been registered in favour of the Republic, as represented by the Cabinet member responsible for the administration of justice.

(2) A confiscation order registered in terms of section 27 may not be executed before the expiry of the period within which an application in terms of section 27 (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 Central Authority must, subject to any agreement or arrangement between the Court and the Republic, pay over to the Court any amount recovered in terms of a confiscation order registered in terms of section 27, less all expenses incurred in connection with the execution of such order.

29 Setting aside of registration of confiscation order

(1) On the application of any person against whom the registration of a confiscation order in terms of section 27 has been made, such registration may be set aside if the court at which it was registered is satisfied that the-

(a) order was registered contrary to a provision of this Act;

(b) order is subject to review or appeal;

(c) person against whom the order was made, through no fault on his or her part, did not appear at the proceedings concerned or did not receive notice of the said proceedings as prescribed by the Statute or Rules 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 himself or herself at the proceedings; or

(d) 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.

Chapter 4
Cooperation with and assistence to Court in or outside South Africa

Part 2
Judicial assistance to court (ss 14-32)

32 Enforcement of sentence of imprisonment

(1) If the Republic has been placed on the list of States contemplated in section 31 (1) and if the Court, in a particular case, as contemplated in paragraph 1 (c) of Article 103 of the Statute designates the Republic as a State in which a person in the case in question must serve a sentence of imprisonment, it must inform the Central Authority as soon as possible of such designation.

(2) The Central Authority must forward such designation to the Cabinet member responsible for correctional services who-

(a) may accept or refuse the Court's designation; and

(b) through the Central Authority, must inform the Court 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 Court is deemed to be a valid warrant for the purposes of section 6 of the Correctional Services Act, 1998 (Act 111 of 1998).

(b) If the Court, at any time, decides to transfer a sentenced person referred to in paragraph (a) to a prison of another State, the Central Authority must, in consultation with the Commissioner of Correctional Services and the Registrar of the Court, arrange for the removal of that person from the Republic in the custody of a person authorised by the Court and the provisions of section 12 apply with the necessary changes.

(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 Court, as a result of an appeal by the person serving the sentence to, or review by, the Court in terms of the Rules.

(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 Court can take place freely and confidentially.

Article 103
Role of States in enforcement of sentences of imprisonment
1. (a) A sentence of imprisonment shall be served in a State designated by the Court from a list of States which have indicated to the Court their willingness to accept sentenced persons.
(b) At the time of declaring its willingness to accept sentenced persons, a State may attach conditions to its acceptance as agreed by the Court and in accordance with this Part.
(c) A State designated in a particular case shall promptly inform the Court whether it accepts the Court's designation.
2. (a) The State of enforcement shall notify the Court of any circumstances, including the exercise of any conditions agreed under paragraph 1, which could materially affect the terms or extent of the imprisonment. The Court shall be given at least 45 days' notice of any such known or foreseeable circumstances. During this period, the State of enforcement shall take no action that might prejudice its obligations under article 110.
(b) Where the Court cannot agree to the circumstances referred to in subparagraph (a), it shall notify the State of enforcement and proceed in accordance with article 104, paragraph 1.
3. In exercising its discretion to make a designation under paragraph 1, the Court shall take into account the following:
(a) The principle that States Parties should share the responsibility for enforcing sentences of imprisonment, in accordance with principles of equitable distribution, as provided in the Rules of Procedure and Evidence;
(b) The application of widely accepted international treaty standards governing the treatment of prisoners;
(c) The views of the sentenced person;
(d) The nationality of the sentenced person;
(e) Such other factors regarding the circumstances of the crime or the person sentenced, or the effective enforcement of the sentence, as may be appropriate in designating the State of enforcement.
4. If no State is designated under paragraph 1, the sentence of imprisonment shall be served in a prison facility made available by the host State, in accordance with the conditions set out in the headquarters agreement referred to in article 3, paragraph 2. In such a case, the costs arising out of the enforcement of a sentence of imprisonment shall be borne by the Court.

Article 104
Change in designation of State of enforcement
1. The Court may, at any time, decide to transfer a sentenced person to a prison of another State.
2. A sentenced person may, at any time, apply to the Court to be transferred from the State of enforcement.

Article 105
Enforcement of the sentence
1. Subject to conditions which a State may have specified in accordance with article 103, paragraph 1 (b), the sentence of imprisonment shall be binding on the States Parties, which shall in no case modify it.
2. The Court alone shall have the right to decide any application for appeal and revision. The State of enforcement shall not impede the making of any such application by a sentenced person.

Article 106
Supervision of enforcement of sentences and conditions of imprisonment
1. The enforcement of a sentence of imprisonment shall be subject to the supervision of the Court and shall be consistent with widely accepted international treaty standards governing treatment of prisoners.
2. The conditions of imprisonment shall be governed by the law of the State of enforcement and shall be consistent with widely accepted international treaty standards governing treatment of prisoners; in no case shall such conditions be more or less favourable than those available to prisoners convicted of similar offences in the State of enforcement.
3. Communications between a sentenced person and the Court shall be unimpeded and confidential.

Article 109
Enforcement of fines and forfeiture measures
1. States Parties shall give effect to fines or forfeitures ordered by the Court under Part 7, without prejudice to the rights of bona fide third parties, and in accordance with the procedure of their national law.
2. If a State Party is unable to give effect to an order for forfeiture, it shall take measures to recover the value of the proceeds, property or assets ordered by the Court to be forfeited, without prejudice to the rights of bona fide third parties.
3. Property, or the proceeds of the sale of real property or, where appropriate, the sale of other property, which is obtained by a State Party as a result of its enforcement of a judgement of the Court shall be transferred to the Court.