CHAPTER 4
COOPERATION WITH AND ASSISTANCE TO COURT IN OR OUTSIDE SOUTH AFRICA (ss 8-32)

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

14 Areas of cooperation and judicial assistancer

The relevant competent authorities in the Republic must, subject to the domestic law of the Republic and the Statute, cooperate with, and render assistance to, the Court in relation to investigations and prosecutions in the following areas:

(a) The identification and whereabouts of persons or the location of items;

(b) the taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court;

(c) the questioning of any person being investigated or prosecuted;

(d) the service of documents, including judicial documents;

(e) facilitating the voluntary appearance of persons as witnesses or experts before the Court;

(f) the temporary transfer of persons in custody for purposes of identification or for obtaining testimony or other assistance;

(g) the examination of places or sites, including the exhumation and examination of grave sites;

(h) the execution of searches and seizures;

(i) the provision of records and documents, including official records and documents;

(j) the protection of victims and witnesses and the preservation of evidence;

(k) the identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and

(l) any other type of assistance which is not prohibited by law, with the view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.

15 Request for assistance in obtaining evidence

(1) A request by the Court for assistance in obtaining evidence in the Republic for use in the Court must be submitted in writing to the Central Authority.

(2) Upon receipt of such request the Central Authority must satisfy itself that-

(a) proceedings have been instituted in the Court; or

(b) there are reasonable grounds for believing that a crime has been committed within the jurisdiction of the Court; or

(c) an investigation in respect thereof is being conducted by the Prosecutor of the Court.

(3) For purposes of subsection (2), the Central Authority may rely on a certificate purporting to have been issued by a judge of the Court or the Prosecutor of the Court, confirming one or more of the requirements referred to in subsection (2).

(4) If the Central Authority is satisfied that one or more of the requirements as contemplated in subsection (2) have been complied with, it must submit the request contemplated in subsection (1) to the magistrate within whose area of jurisdiction the witness resides or is believed to be present, as well as to the National Director.

16 Examination of witnesses

(1) The magistrate to whom a request has been forwarded in terms of section 15 (4) must cause the person whose evidence is required, to be summoned 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 summoned in the prescribed manner.

(3) Upon the appearance of that person, the magistrate must administer an oath to or accept an affirmation from him or her and take the evidence of that person upon interrogatories or otherwise, as if the said person were a witness in a competent South African court of law in proceedings similar to those in connection with which his or her evidence is required.

(4) Upon completion of the examination of the witness, the magistrate taking the evidence must as soon as possible transmit to the Central Authority the record of the evidence certified by him or her to be correct, together with a certificate setting out the costs incurred in connection with the execution of the Court's request, including any extraordinary costs which have emanated from the execution of that request.

(5) If the services of an interpreter were used at the examination of the witness, the interpreter must, in the prescribed manner, certify that he or she has translated truthfully and to the best of his or her ability and that certificate must accompany the documents referred to in subsection (4).

(6) The Central Authority must, on receipt of the documents referred to in subsections (4) and (5), submit them to the Registrar of the Court, indicating which costs emanating from the execution of the request, in its opinion, should be borne by the Court in terms of Article 100 of the Statute.

17 Rights and privileges of witnesses before magistrate

(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 applicable to such a witness in a magistrate's court in similar proceedings apply.

(2) A person summoned to appear before a magistrate in terms of section 16 may be assisted by a legal practitioner in the proceedings contemplated in that section.

CHAPTER 4
COOPERATION WITH AND ASSISTANCE TO COURT IN OR OUTSIDE SOUTH AFRICA (ss 8-32)

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

19 Attendance of witnesses in proceedings before Court

(1) A summons issued by a judge of the Court or the Prosecutor of the Court for the attendance of any person in any proceedings before the Court, whether in the Republic or elsewhere, must be transmitted to the Central Authority by the person receiving it in the Republic.

(2) Upon receipt of such summons, the Central Authority must immediately transmit it to the magistrate within whose area of jurisdiction such person resides or is present.

(3) Upon receipt of the summons, the magistrate must, if satisfied that the summons was issued by the Court, endorse it for service upon such person, whereupon it may be served as if it were a summons issued out of the court of such magistrate in proceedings similar to those in connection with which it was issued.

(4) Any person summoned under this section who, without sufficient cause, fails to attend at the time and place specified in the summons, is guilty of an offence and liable on conviction to a fine, or to imprisonment for a period not exceeding 12 months.

(5) Any magistrate's court within whose area of jurisdiction the summons has been served or the person summoned resides, has jurisdiction to try such person for a contravention of subsection (4).

(6) For the purposes of subsection (4), a return of service indicating that the summons was served properly on the person concerned, together with a certificate by a judge of the Court, to the effect that such person failed to appear at the time and place specified in the summons, is prima facie proof that the said person failed to appear as contemplated in that subsection.

20 Transfer of prisoner to give evidence or to assist in investigations

Despite any other law-

(a) where the Central Authority receives a request from the Court or the Prosecutor of the Court for the transfer of a prisoner in the Republic into the custody of the Court, for the purpose of giving evidence or assisting in an investigation, the Central Authority must transmit the request to the Cabinet member responsible for correctional services;

(b) if the prisoner consents to the transfer, the Commissioner of Correctional Services or any person authorised thereto by him or her in writing may issue the prescribed warrant for the transfer of the prisoner, into the custody of the Court in accordance with the arrangements made by the Cabinet member responsible for correctional services with the Registrar or the Prosecutor of the Court;

(c) any period of imprisonment served in the custody of the Court, by a prisoner transferred under this section, must be regarded as a period of imprisonment served in the Republic for purposes of calculating the remaining term of imprisonment of that person; and

(d) the Commissioner of Correctional Services must, where it appears that the term of imprisonment of the transferred prisoner will expire while that prisoner is still in the custody of the Court, in writing inform the Registrar of the date on which that term of imprisonment will expire.

21 Service of process and documents

(1) Upon receipt of a request by the Court for assistance in effecting the service of process or documents, except a summons contemplated in section 19 (1), the Central Authority must send the request, together with the process or documents, to the National Commissioner of the South African Police Service for service on the person concerned.

(2) The National Commissioner of the South African Police Service must cause the process or documents to be served on the person concerned in the manner specified in the request.

(3) The National Commissioner of the South African Police Service must send the return of service to the Central Authority for transmission to the Court.

22 Registration of restraint order

(1) When the Central Authority receives a request from the Court for assistance in enforcing a restraint order in the Republic, it may lodge with the registrar of the High Court in whose area of jurisdiction the property is situated or present a certified copy of such order if the Central Authority is satisfied that the order is not subject to any review or appeal and that the request is supported by the following:

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

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

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

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

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

(2) The registrar with whom a certified copy of a restraint order is lodged in terms of subsection (1), must, in the prescribed manner, register such order in respect of the property which is specified therein.

(3) The registrar registering a restraint order must immediately give notice in writing to the person against whom the order has been made that the-

(a) order has been registered at the High 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.

(4) (a) Where the person against whom the restraint order has been made is present in the Republic, the notice contemplated in subsection (3) 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 restraint order in the prescribed manner.

23 Effect of registration of restraint order

When any restraint order has been registered in terms of section 22, that order has the effect of a restraint order made by that High Court under the Prevention of Organised Crime Act, 1998 (Act 121 of 1998).

24 Setting aside of registration of restraint order

(1) The registration of a restraint order in terms of section 22 must, 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 that the-

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

(b) order is subject to review or appeal;

(c) sentence or order in support of which the 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 4
COOPERATION WITH AND ASSISTANCE TO COURT IN OR OUTSIDE SOUTH AFRICA (ss 8-32)

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

30 Entry, search and seizure

(1) The Court or the Prosecutor of the Court must submit any request for assistance in the entering and searching of premises, the search of a person and the seizure of a book, document or object that has a bearing on a crime or an offence committed within the jurisdiction of the Court, to the Central Authority in writing.

(2) The request must contain sufficient information under oath or by way of affirmation that there are reasonable grounds for believing that the entry, search or seizure of the book, document or object has a bearing on a crime or an offence committed within the jurisdiction of the Court and that an investigation or prosecution in respect thereof is being conducted by the Prosecutor of the Court.

(3) On receipt of such request, the Central Authority must forward the request to the National Commissioner of the South African Police Service or a person designated by him or her for that purpose, with a view to obtaining the necessary warrant required in the circumstances.

(4) A magistrate or judge of a High Court may, if it appears to such magistrate or judge from the information submitted that there are reasonable grounds for believing that any book, document or object which has a bearing on the investigation or prosecution concerned, is in the possession or under the control of any person or on or in any premises within such magistrate's or judge's area of jurisdiction, issue the necessary warrant required in the circumstances.

(5) The warrant must clearly specify the acts which may be performed thereunder by the police officer to whom it was issued.

(6) The warrant remains valid until-

(a) it is executed;

(b) it is cancelled by the person who issued it or by any person with similar authority;

(c) the expiry of three months from the date of its issue; or

(d) the purpose for which the warrant was issued no longer exists,

whichever may occur first.

(7) A police officer must, immediately before executing the warrant-

(a) identify himself or herself to the person referred to in the warrant or the owner or person in control of the premises, if such person is present;

(b) hand to such person a copy of the warrant or, if the person is not present, affix that copy to a prominent place on the premises; and

(c) supply such person at his or her request with particulars regarding his or her authority to execute the warrant.

(8) An entry, search and seizure under this section must be-

(a) conducted with strict regard to decency and order, including the protection of a person's right to dignity, freedom, security and privacy; and

(b) executed by day unless the execution thereof by night is justifiable and necessary.

(9) The seizure of a book, document or object under this section must be effected by removing it from the premises concerned or, if that removal is not reasonably practicable, by sealing or otherwise safeguarding it on or in the premises.

(10) A police officer who may under this section enter and search any premises-

(a) must, immediately before the entry, audibly demand admission to the premises and make known the purpose of the entry and search, unless there are reasonable grounds for believing that a book, document or object in respect of which the search is being conducted, may be destroyed, disposed of or tampered with if that admission is first demanded and that purpose is made known;

(b) may use the force that is reasonably necessary to overcome resistance to the entry or search or the seizure of a book, document or object under this section;

(c) may utilize or request the assistance of any person to identify any book, document or object which has a bearing on the alleged crime or offence or to conduct the entry or search or the seizure of any book, document or object under this section.

(11) A person from whose possession or control a book, document or object has been removed under this section may, at his or her own expense and under the supervision of a police officer, make copies thereof or excerpts therefrom.

(12) A police officer who removes a book, document or object from any premises under this section must issue a receipt to the person who is the owner or in possession or in control thereof or, if that person is not present, affix it to a prominent place on the premises.

(13) If, during the conduct of a search or the carrying out of a seizure under this section, a person claims that a book, document or object found on or in the premises contains privileged information and refuses the examination or removal of the book, document or object, the police officer conducting the search or carrying out the seizure must, if he or she is of the opinion that the book, document or object contains information which has a bearing on the alleged crime or offence, seize the book, document or object and submit it to the registrar of the High Court having jurisdiction for safe custody until a court of law has made a ruling on the question whether the information is privileged or not.

(14) If the information is found not to be privileged, the book, document or object seized under this section must be handed over to the Court or Prosecutor of the Court, as the case may be.

(15) If criminal proceedings, in respect of which a book, document or object has been seized under this section, are not instituted within a reasonable time after the seizure or, if it appears that the book, document or object is not required in criminal proceedings for the purposes of evidence or an order of the Court, the Central Authority must request the Court or Prosecutor of the Court to return such book, document or object to the person from whom it was seized.

(16) Any person who-

(a) obstructs or hinders a police officer or any other person in the performance of his or her functions in terms of this section;

(b) when he or she is asked for information or an explanation relating to a matter within his or her knowledge, refuses or fails to give that information or explanation or gives information or an explanation which is false or misleading, knowing it to be false or misleading,

is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 15 years or to both such fine and such imprisonment.

Article 93
Other forms of cooperation
1. States Parties shall, in accordance with the provisions of this Part and under procedures of national law, comply with requests by the Court to provide the following assistance in relation to investigations or prosecutions:
(a) The identification and whereabouts of persons or the location of items;
(b) The taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court;
(c) The questioning of any person being investigated or prosecuted;
(d) The service of documents, including judicial documents;
(e) Facilitating the voluntary appearance of persons as witnesses or experts before the Court;
(f) The temporary transfer of persons as provided in paragraph 7;
(g) The examination of places or sites, including the exhumation and examination of grave sites;
(h) The execution of searches and seizures;
(i) The provision of records and documents, including official records and documents;
(j) The protection of victims and witnesses and the preservation of evidence;
(k) The identification, tracing and freezing or seizure of proceeds, property and assets and instrumentalities of crimes for the purpose of eventual forfeiture, without prejudice to the rights of bona fide third parties; and
(l) Any other type of assistance which is not prohibited by the law of the requested State, with a view to facilitating the investigation and prosecution of crimes within the jurisdiction of the Court.
2. The Court shall have the authority to provide an assurance to a witness or an expert appearing before the Court that he or she will not be prosecuted, detained or subjected to any restriction of personal freedom by the Court in respect of any act or omission that preceded the departure of that person from the requested State.
3. Where execution of a particular measure of assistance detailed in a request presented under paragraph 1, is prohibited in the requested State on the basis of an existing fundamental legal principle of general application, the requested State shall promptly consult with the Court to try to resolve the matter. In the consultations, consideration should be given to whether the assistance can be rendered in another manner or subject to conditions. If after consultations the matter cannot be resolved, the Court shall modify the request as necessary.
4. In accordance with article 72, a State Party may deny a request for assistance, in whole or in part, only if the request concerns the production of any documents or disclosure of evidence which relates to its national security.
5. Before denying a request for assistance under paragraph 1 (l), the requested State shall consider whether the assistance can be provided subject to specified conditions, or whether the assistance can be provided at a later date or in an alternative manner, provided that if the Court or the Prosecutor accepts the assistance subject to conditions, the Court or the Prosecutor shall abide by them.
6. If a request for assistance is denied, the requested State Party shall promptly inform the Court or the Prosecutor of the reasons for such denial.
7. (a) The Court may request the temporary transfer of a person in custody for purposes of identification or for obtaining testimony or other assistance. The person may be transferred if the following conditions are fulfilled:
(i) The person freely gives his or her informed consent to the transfer; and
(ii) The requested State agrees to the transfer, subject to such conditions as that State and the Court may agree.
(b) The person being transferred shall remain in custody. When the purposes of the transfer have been fulfilled, the Court shall return the person without delay to the requested State.
8. (a) The Court shall ensure the confidentiality of documents and information, except as required for the investigation and proceedings described in the request.
(b) The requested State may, when necessary, transmit documents or information to the Prosecutor on a confidential basis. The Prosecutor may then use them solely for the purpose of generating new evidence.
(c) The requested State may, on its own motion or at the request of the Prosecutor, subsequently consent to the disclosure of such documents or information. They may then be used as evidence pursuant to the provisions of Parts 5 and 6 and in accordance with the Rules of Procedure and Evidence.
9. (a) (i) In the event that a State Party receives competing requests, other than for surrender or extradition, from the Court and from another State pursuant to an international obligation, the State Party shall endeavour, in consultation with the Court and the other State, to meet both requests, if necessary by postponing or attaching conditions to one or the other request.
(ii) Failing that, competing requests shall be resolved in accordance with the principles established in article 90.
(b) Where, however, the request from the Court concerns information, property or persons which are subject to the control of a third State or an international organization by virtue of an international agreement, the requested States shall so inform the Court and the Court shall direct its request to the third State or international organization.
10. (a) The Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court or which constitutes a serious crime under the national law of the requesting State.
(b) (i) The assistance provided under subparagraph (a) shall include, inter alia:
a. The transmission of statements, documents or other types of evidence obtained in the course of an investigation or a trial conducted by the Court; and
b. The questioning of any person detained by order of the Court;
(ii) In the case of assistance under subparagraph (b) (i) a:
a. If the documents or other types of evidence have been obtained with the assistance of a State, such transmission shall require the consent of that State;
b. If the statements, documents or other types of evidence have been provided by a witness or expert, such transmission shall be subject to the provisions of article 68.
(c) The Court may, under the conditions set out in this paragraph, grant a request for
assistance under this paragraph from a State which is not a Party to this Statute.

Article 96
Contents of request for other forms of assistance under article 93
1. A request for other forms of assistance referred to in article 93 shall be made in writing. In urgent cases, a request may be made by any medium capable of delivering a written record, provided that the request shall be confirmed through the channel provided for in article 87, paragraph 1 (a).
2. The request shall, as applicable, contain or be supported by the following:
(a) A concise statement of the purpose of the request and the assistance sought, including the legal basis and the grounds for the request;
(b) As much detailed information as possible about the location or identification of any person or place that must be found or identified in order for the assistance sought to be provided;
(c) A concise statement of the essential facts underlying the request;
(d) The reasons for and details of any procedure or requirement to be followed;
(e) Such information as may be required under the law of the requested State in order to execute the request; and
(f) Any other information relevant in order for the assistance sought to be provided.
3. Upon the request of the Court, a State Party shall consult with the Court, either generally or with respect to a specific matter, regarding any requirements under its national law that may apply under paragraph 2 (e). During the consultations, the State Party shall advise the Court of the specific requirements of its national law.
4. The provisions of this article shall, where applicable, also apply in respect of a request for assistance made to the Court.