House Chairperson, the extradition treaty and the agreement concerning mutual legal assistance in criminal matters between South Africa and Iran were both tabled in terms of section 231(2) of the Constitution, Act 108 of 1996, because these are actually two separate legal instruments that both require ratification by Parliament.
In terms of the extradition treaty, a state can request the extradition of a fugitive only if the offence in question is in both countries and is punishable by a sentence of at least one year's imprisonment. The state from which the extradition is requested can refuse such a request. If a person is a national of the requested state, then proceedings must be instituted within the requested state.
The state from which the extradition is requested may also refuse extradition if the matter involved a political or a military offence or if the potential sentence for the offence in question is substantively different in both states, and also if the requesting state fails to provide assurance that the person in question will not be subjected to cruel, inhumane or degrading punishment, torture or detention without trial.
The treaty has no specific provision dealing with extradition in cases where the death penalty can be imposed. However, according to the Department of Justice and Constitutional Development, this is covered by the provision regarding cruel, inhumane and degrading punishment, as the Constitutional Court has stated that the death penalty amounts to cruel, inhumane or degrading punishment.
South Africa would therefore refuse extradition in cases where a person would be sentenced to death in Iran, where the death penalty is still in operation, unless the government of Iran assures South Africa in writing that the death penalty will not be imposed or, if it is imposed, would not be carried out.
With regard to an agreement concerning legal assistance, the agreement provides for surrender to legal evidence and forfeited properties linked to the commission of the crime in question to be kept by the requesting state until the end of the trial, when it will be decided by both states whether or not such properties or evidence will be returned.
South Africa has a foreign mission in Iran and the committee was informed that there have been renewed attempts to strengthen diplomatic ties between South Africa and Iran, and that South Africa therefore has an obligation to honour the treaty and agreement signed with Iran. There were also no limitations from bodies like the African Union and the Southern African Development Community, SADC, that prevented South Africa from dealing with Iran.
The committee proposes that the House should adopt the extradition treaty and the agreement.
Debate concluded.
Question put: That the Report of the Select Committee on Security and Constitutional Development on Agreement between the Government of the Republic of South Africa and the Government of the Islamic Republic of Iran on Mutual Legal Assistance in Criminal Matters be adopted.
Declaration of vote:
Hon Chair, today Minister hon Jeff Radebe tabled in Parliament the extradition treaty between the Republic of South Africa and the Islamic Republic of Iran.
The state law advisers have indicated that the proposed treaties are not in conflict with South Africa's domestic law and existing international obligations. The DA in the Western Cape province is of the opinion that the domestic laws of the Islamic Republic of Iran are in conflict with our constitutional democracy, which guides our domestic laws.
The extradition treaty, which refers to international co-operation, has to ensure that both the RSA and the Islamic Republic of Iran do not become easy targets for criminal activity. We are all aware of the poor human rights record of Iran and the negotiating team confirmed this in their reports. The fight for human rights and democracy in South Africa did not come cheap. People paid with their lives and spent many years in jail - and the international community supported us. [Interjections.]
Hon member, can I just establish something with you? Is this a provincial declaration or a party declaration?
It is a provincial and a party declaration.
Proceed.
How will we ensure that after a person has been extradited to Iran, protection will be in place against detention without trial, torture, punishment in a cruel way or in any action that is against human dignity, which includes the death penalty? The DA and the Western Cape delegation want to say that we are not convinced that a country like Iran, with no democratic systems and a poor human rights record, will uphold the extradition treaty. We will therefore not vote in favour of the extradition treaty between the Republic of South Africa and the Islamic Republic of Iran.
Thank you, hon member. Does any other province wish to make a declaration of vote? In the absence of any more declarations, we proceed to voting on the question. Just as a word of caution, the reason I had to ask that question was the consistent reference to the party. It needs to be clear that it is a provincial declaration and not a party declaration.
Question put: That the Report be adopted.
On a point of clarity, hon Chairperson: I just want to make sure whether we are voting on the Fifth and Sixth Orders combined?
We are voting separately.
IN FAVOUR: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, Northern Cape, North West, Western Cape.
Report accordingly adopted in accordance with section 65 of the Constitution.
Hon member, I called this order, which is the Fifth Order. I also asked whether there was any province that wished to make a declaration of vote. The Western Cape stood up and made their declaration of vote. At the end, or in their conclusion, they declared they did not agree. My understanding is that the DA therefore intended to vote against the Order. Are you changing that?
House Chairperson, I made a declaration of vote on the Sixth Order.
Oh, so you made a declaration of vote on the Sixth Order while we were dealing with the Fifth Order? [Interjections.] All right, that's fine.
Chairperson, hon D Joseph has already delivered a declaration of vote relating to the Sixth Order on the Order Paper. Must he repeat it or does it stand? The declaration of vote has already been made.
That is not a point of order, but rather a procedural issue. I will definitely have to get advice on that. [Interjections.] According to the advice I have been given, it will be recorded as a declaration of vote on the Sixth Order. It will therefore be noted as such.
Debate concluded.
Question put: That the Report of the Select Committee on Security and Constitutional Development on Extradition Treaty Between Government of RSA and Government of Islamic Republic of Iran be adopted.
Declaration of vote made on behalf of the Western Cape.
IN FAVOUR: Eastern Cape, Free State, Gauteng, KwaZulu-Natal, Limpopo, Mpumalanga, Northern Cape, North West.
AGAINST: Western Cape.
Report accordingly adopted in accordance with section 65 of the Constitution.