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

Part 1
Cooperation with court: arrest of persons and their surrender to court (ss 8-13)

8 Endorsement of warrants of arrest

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

Part 1
Cooperation with court: arrest of persons and their surrender to court (ss 8-13)

8 Endorsement of warrants of arrest

(1) Any request received from the Court for the arrest and surrender of a person for whom a warrant of arrest has been issued by the Court must be referred to the Central Authority and accompanied by such documents as may be necessary to satisfy a competent court in the Republic that there are sufficient grounds for the surrender of that person to the Court.

(2) The Central Authority must immediately on receipt of that request, forward the request and accompanying documents to a magistrate, who must endorse the warrant of arrest for execution in any part of the Republic.

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

Part 1
Cooperation with court: arrest of persons and their surrender to court (ss 8-13)

10 Proceedings before competent court after arrest for purposes of surrender

(1) Any person who detains a person under a warrant of arrest or a warrant for his or her further detention must, within 48 hours after that person's arrest or on the date specified in the warrant for his or her further detention, as the case may be, bring that person before a magistrate in whose area of jurisdiction he or she has been arrested or detained, whereupon that magistrate must, with a view to the surrender of that person to the Court, hold an inquiry in order to establish whether-

(a) the warrant applies to the person in question;

(b) the person has been arrested in accordance with the procedures laid down by domestic law; and

(c) the rights of the person, as contemplated in Chapter 2 of the Constitution, have been respected, if, and the extent to which, they are or may be applicable.

(2) The magistrate may at any time during the inquiry postpone that inquiry for purposes of consultation between the relevant authorities of the Republic and the Court where any problem is experienced with the execution of any request of the Court for cooperation or judicial assistance.

(3) The magistrate holding the enquiry must proceed in the manner in which a preparatory examination is held under Chapter 20 of the Criminal Procedure Act, 1977 (Act 51 of 1977), and has, for the purposes of holding the inquiry, the same powers as he or she would have had in respect of a preparatory examination so held, including the power to commit any person for further detention or to release such person on bail.

(4) Any deposition, statement made under oath or an affirmation, whether or not it was made in the presence of the person referred to in subsection (1), or any document, record or judgment of conviction or any warrant issued by the Court, or any copy or sworn translation thereof, may be received in evidence at any such inquiry, but a copy or sworn translation thereof may only be received in evidence if such document is certified as a true copy or translation thereof by a judge of the Court or by a member of the staff of the Court authorised thereto by such judge.

(5) If, after considering the evidence adduced at the inquiry referred to in subsection (1), the magistrate is satisfied that the requirements of subsection (1) (a) to (c) have been complied with and that the person concerned may be surrendered to the Court-

(a) for prosecution in the Court for the alleged crime;

(b) for the imposition of a sentence by the Court for the crime in respect of which the person has been convicted;

(c) to serve a sentence already imposed by the Court,

the magistrate must issue an order committing that person to prison pending his or her surrender to the Court.

(6) The magistrate issuing the order of committal contemplated in subsection (5) or postponing the inquiry as contemplated in subsection (2), must immediately forward to the Central Authority a copy of the order or reasons for the postponement, together with any other necessary report.

(7) The inquiry contemplated in this section may be dispensed with if the person concerned agrees in writing to his or her surrender to the Court.

(8) (a) No order for the surrender of any person may be executed-

(i) before the period allowed for an appeal as contemplated in this section has expired, unless that person has waived his or her right of appeal in writing; or

(ii) before such an appeal has been disposed of.

(b) Any person against whom an order has been issued under subsection (5) may, within seven days after the date of the order, appeal to a High Court having jurisdiction against a decision of the magistrate whether one or more of the requirements referred to in subsection (1) (a) to (c) have been complied with.

(c) The National Director may, within seven days after the date of a decision of a magistrate not to issue an order committing a person to prison pending his or her surrender to the Court, as contemplated in subsection (5), appeal against such a decision to a High Court having jurisdiction.

(d) On appeal such High Court must make a decision whether the requirements referred to in subsection (1) (a) to (c), as appealed against, have been complied with and make an order which, in the opinion of the High Court in question, the magistrate should have made in the first place.

(e) If an appeal in terms of-

(i) paragraph (b) is upheld, the Registrar of the High Court concerned must notify the magistrate in question accordingly, who must, in turn, immediately cancel the order referred to in section 10 (5), notify the Court thereof through the Central Authority and cause the person who lodged the appeal to be released from custody if he or she is in detention;

(ii) paragraph (c) is upheld, the Registrar of the High Court concerned must notify the magistrate in question accordingly, who must, in turn, after causing sufficient notice to be given to the person in question and to the National Director, inform the person in question of the order of the High Court.

(f) Notice to the person in question as contemplated in paragraph (e) (ii) must be a written notice to that person calling upon him or her to appear at a stated place and time on a stated date in order that the magistrate can inform the person of the order of the High Court, as contemplated in paragraph (e) (ii), whereupon the provisions of sections 54 (2) and 55 (1) and (2) of the Criminal Procedure Act, 1977 (Act 51 of 1977), apply with the necessary changes.

(g) The Rules Board for Courts of Law established by section 2 of the Rules Board for Courts of Law Act, 1985 (Act 107 of 1985), must, within six months after the date of commencement of this Act, make and implement rules of procedure which provide for the expeditious and urgent finalisation of an appeal contemplated in this section.

(h) Any rule made under paragraph (g) must, before publication thereof in the Gazette, as contemplated in section 6 (4) of the Rules Board for Courts of Law Act, 1985, be approved by Parliament.

(9) The fact that the person to be surrendered is a person contemplated in section 4 (2) (a) or (b) does not constitute a ground for refusing to issue an order contemplated in subsection (5).

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

Part 1
Cooperation with court: arrest of persons and their surrender to court (ss 8-13)

11 Removal of persons surrendered

(1) Any person in respect of whom an order to be surrendered has been given under section 10 (5) or who agrees to his or her surrender, may be removed from the Republic in the custody of a person authorized by the Court to receive him or her and if the person escapes while being so removed, he or she may be arrested without a warrant by any person.

Article 89
Surrender of persons to the Court
1. The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person. States Parties shall, in accordance with the provisions of this Part and the procedure under their national law, comply with requests for arrest and surrender.
2. Where the person sought for surrender brings a challenge before a national court on the basis of the principle of ne bis in idem as provided in article 20, the requested State shall immediately consult with the Court to determine if there has been a relevant ruling on admissibility. If the case is admissible, the requested State shall proceed with the execution of the request. If an admissibility ruling is pending, the requested State may postpone the execution of the request for surrender of the person until the Court makes a determination on admissibility.
3. (a) A State Party shall authorize, in accordance with its national procedural law, transportation through its territory of a person being surrendered to the Court by another State, except where transit through that State would impede or delay the surrender.
(b) A request by the Court for transit shall be transmitted in accordance with article 87. The request for transit shall contain:
(i) A description of the person being transported;
(ii) A brief statement of the facts of the case and their legal characterization; and
(iii) The warrant for arrest and surrender;
(c) A person being transported shall be detained in custody during the period of transit;
(d) No authorization is required if the person is transported by air and no landing is scheduled on the territory of the transit State;
(e) If an unscheduled landing occurs on the territory of the transit State, that State may require a request for transit from the Court as provided for in subparagraph (b). The transit State shall detain the person being transported until the request for transit is received and the transit is effected, provided that detention for purposes of this subparagraph may not be extended beyond 96 hours from the unscheduled landing unless the request is received within that time.
4. If the person sought is being proceeded against or is serving a sentence in the requested State for a crime different from that for which surrender to the Court is sought, the requested State, after making its decision to grant the request, shall consult with the Court.