No. 7, 1997

EXTRADITION ACT, 1962 (ACT No. 67 OF 1962)

AGREEMENT ON EXTRADITION BETWEEN THE REPUBLIC OF SOUTH AFRICA AND THE KINGDOM OF LESOTHO

Under section 2(3)(a) of the Extradition Act, 1962 (Act No. 67 of 1962), I hereby publish the Agreement on Extradition between the Republic of South Africa and the Kingdom of Lesotho of 20 June 1995 in the Schedule.

Given under my Hand and the Seal of the Republic of South Africa at Cape Town this Twentieth day of October, One thousand Nine hundred and Ninety-six.

N. R. MANDELA
President

By Order of the President-in-Cabinet:

A. M. OMAR
Minister of the Cabinet

AGREEMENT BETWEEN THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA AND THE GOVERNMENT OF THE KINGDOM OF LESOTHO REGARDING EXTRADITION

PREAMBLE

WHEREAS the Government of the Republic of South Africa and the Government of the Kingdom of Lesotho recognise the friendly relations between their peoples; and

WHEREAS the said Governments are desirous to regulate by mutual agreement their relations in the sphere of extradition of offenders;

NOW, THEREFORE, The Government of the Republic of South Africa and the Government of the Kingdom of Lesotho (hereinafter jointly referred to as the "Parties" and separately referred to as the requesting Party" or the "requested Party", as the case may be) agree as follows:

OBLIGATION TO EXTRADITE

The Parties undertake to extradite to each other, subject to the provisions of this Agreement and their respective laws relating to extradition, any person who is accused or has been convicted of the commission within the jurisdiction of the requesting Party of an offence specified in article 2 and who finds himself in the territory of the requested Party.

EXTRADITABLE OFFENCES

1. Extradition shall be granted on a reciprocal basis in respect of the following offences only:
1. Abduction, whether under the common law or a statutory provision;
2. Arson;
3. Assault, when a dangerous wound is inflicted;
4. Breaking or entering any premises, whether under the common law or a statutory provision, with the intent to commit an offence;
5. Bribery, whether under the common law or a statutory provision;
6. Childstealing;
7. Culpable homicide;
8. Escaping from lawful custody, where the person concerned is in such custody in respect of any offence specified in this subarticle or is in such custody in respect of the offence of escaping from lawful custody;
9. Forgery or uttering a forged document knowing it to have been forged;
10. Fraud;
11. Hijacking;
12. Indecent assault;
13. Kidnapping;
14. Malicious injury to property;
15. Murder;
16. Piracy;
17. Public violence;
18. Rape;
19. Receiving stolen property knowing it to have been stolen;
20. Robbery;
21. Sedition;
22. Theft, whether under the common law or a statutory provision;
23. Offences relating to the coinage;
24. Any offence under any law relating to the illicit dealing in or possession of precious metals or precious stones;
25. Any offence under any law relating to the illicit killing of an elephant, a black rhinoceros or a white rhinoceros, or any dealing in, or possession of, any part of any such animal;
26. Any offence under any law relating to the illicit possession, conveyance or supply of dependence-producing drugs.
27. Any conspiracy, incitement or attempt to commit any offence specified in this subarticle.
2. In addition to the offences specified in subarticle (1), extradition shall also be granted in respect of a person accused in respect of any act which is an offence under the laws (including the common law) of both the requesting Party and the requested Party and punishable in terms of such laws by a sentence of imprisonment for a period of not less than 6 (six) months or by some more severe penalty other than a fine alone.
3. Extradition shall also be granted in respect of a person convicted of and sentenced for an offence as contemplated in subarticles (1) and (2), for the purpose of enforcing such sentence or the balance thereof.
4. Extradition shall also be granted in respect of a person convicted of but not yet sentenced for an offence contemplated in subarticles (1) and (2).
5. If the request for extradition relates to more than one offence and the punishment for some of those offences is less than that prescribed in subarticle (2), the requested Party may in its discretion also grant extradition for such offences.

POLITICAL OFFENCES

1. Notwithstanding the provisions of article 2, extradition may be refused if the offence in respect of which extradition is requested is regarded by the requested Party as a political offence or an offence connected with or related to a political offence.
2. Offences of a political character shall not include-
1. an offence against the life or person of a Head of State, Deputy Head of State or acting Head of State, or a member of his or her immediate family or any related offence (i.e. aiding and abetting, or counselling or procuring the commission of, or being an accessory before or after the fact to or attempting or conspiring to commit such an offence);
2. an offence against the life or person of a Head of Government, Deputy Head of Government or acting Head of Government, or of a Minister of a Government, or any related offence;
3. murder, or any related offence;
4. an act declared to constitute an offence under a multilateral international convention the purpose of which is to prevent or repress a specific category of offences and which imposes on the parties thereto an obligation either to extradite or to prosecute the person sought.

MILITARY OFFENCES

Extradition shall not be granted in respect of any offence under military law if such offence is not an offence under the criminal law of both the Parties.

CAPITAL PUNISHMENT

If the offence for which extradition is requested carries the death penalty in terms of the laws of the requesting Party and the laws of the requested Party do not permit such punishment for that offence, extradition may be refused unless the requesting Party provides such written assurance as the requested Party considers sufficient that the death penalty will not be imposed or, if imposed, will not be carried out.

PENDING PROCEEDINGS FOR THE SAME OFFENCE

The requested Party may refuse to extradite a person if the competent authorities of such Party are initiating proceedings against such person in respect of the offence or offences for which extradition is requested.

PROCEEDINGS AND SENTENCES FOR DIFFERENT OFFENCES

1. When the person whose extradition is requested is being proceeded against or is serving a sentence in the territory of the requested Party for an offence other than that for which extradition is requested, his surrender may be deferred until such proceedings have been concluded or such or any other sentence has been served or carried out.
2. Without derogating from the provisions of subarticle (1), the requested Party may transfer any offender serving a sentence in the territory of the requested Party temporarily to the requesting Party for trial and sentence, after which the offender will be returned to the requested Party for execution of the sentence, and thereafter be re-surrendered to the requesting Party to serve any sentence imposed at the trial conducted during the earlier transfer.

NON BIS IN IDEM

1. Extradition shall not be granted if final judgement has been passed by the competent authorities of the requested Party upon the person whose extradition is sought in respect of the offence or offences for which extradition is requested.
2. Extradition may be refused if the competent authorities of the requested Party have decided either not to institute or to terminate proceedings in respect of the same offence or offences.

LAPSE OF TIME

Extradition shall not be granted if the person whose extradition is sought has, under the laws of either Party, become immune from prosecution or punishment for the offence for which his extradition is requested, for any reason, including lapse of time.

CHANNEL OF COMMUNICATION

1. The request for extradition shall be communicated in writing through the diplomatic channel as provided for in article 11 or through the direct channel as provided for in article 12.
2. Any response to a request for extradition shall be directed to the requesting Party through the same channel as that through which the request was communicated.

The request for extradition through the diplomatic channel shall be in writing and be accompanied by-

1. if the person whose extradition is sought is a person accused, the original or a certified copy of the warrant for his arrest, or court order having the same effect, issued in accordance with the laws of the requesting Party, as well as prima facie evidence of the commission of the offence by such person;
2. if the person whose extradition is sought is a person convicted, the original or a certified copy of such part of the record of the proceedings as reflects the charge, the conviction and, if he has been sentenced, the enforceable sentence and a statement reflecting the balance of the sentence still to be served;
3. a statement of the offence for which extradition is requested, in which the time and place of its commission, its legal description and a reference to the relevant legal provisions shall be set out as accurately as possible;
4. if the offence is one under statute law, a copy of the relevant enactments; and
5. a statement setting out as accurately as possible a description of the person whose extradition is sought, together with any other information which may help to establish his identity:

Provided that the statements referred to in paragraphs (b), (c) and (e) may be contained in the letter of request.

DIRECT REQUEST AND SUPPORTING DOCUMENTS

If a request for extradition is not communicated through the diplomatic channel, the Attorney-General or Prosecutor-General of the requesting Party may submit the request to the Attorney-General or Prosecutor-General (in whose jurisdiction it is believed the person whose extradition is sought, finds himself) of the requested Party and such request shall be accompanied by-

1. if the person whose extradition is sought is a person accused, the original or a certified copy of the warrant for his arrest, or court order having the same effect, issued in accordance with the laws of the requesting Party, as well as prima facie evidence of the commission of the offence by such person, or a summary of the substantial facts of the case;
2. if the person whose extradition is sought is a person convicted, the original or a certified copy of such part of the record of the proceedings as reflects the charge, the conviction and, if he has been sentenced, the enforceable sentence and a statement reflecting the balance of the sentence still to be served;
3. a statement of the offence for which extradition is requested, in which the time and place of its commission, its legal description and a reference to the relevant legal provisions shall be set out as accurately as possible;
4. if the offence is one under statute law, a copy of the relevant enactments; and
5. a statement setting out as accurately as possible a description of the person whose extradition is sought, together with any other information which may help to establish his identity:

Provided that the statements referred to in paragraphs (b), (c) and (e) may be contained in the letter of request.

RECIPROCAL ENDORSEMENT OF WARRANTS OF ARREST

1. Any magistrate in the territory of the requested Party to whom is produced or who receives a warrant referred to in article 12 may endorse it for execution if he is satisfied that it was lawfully issued, whereupon it shall be executed in the manner prescribed in respect of warrants of arrest under the laws of the requested Party relating to criminal procedure.
2. Any person detained under a warrant endorsed in terms of subarticle (1) shall as soon as possible be brought before a magistrate in the territory of the requested Party, whereupon such magistrate shall, subject to the laws of the requested Party relating to extradition, hold an enquiry with a view to the surrender of such person to the requesting Party.
3. If the magistrate finds that the person brought before him is liable to be surrendered to the requesting Party, he shall issue an order for his surrender to the requesting Party.
4. A refusal of an order for surrender or a cancellation of a warrant of arrest endorsed in terms of subarticle (1) shall not debar the requesting Party from submitting another request for extradition in respect of the person whose extradition is sought through the diplomatic channel.

DOCUMENTS RELATING TO EVIDENCE

The authorities of the requested Party shall admit as evidence at any proceedings for extradition any deposition, statement on oath or affirmation taken, whether or not taken in the presence of the person accused, or any statement by the person accused, any record of any conviction and any warrant issued in the territory of the requesting Party or a copy or sworn translation thereof, if such documents or a copy or sworn translation thereof are-

1. certified by a judge, magistrate or other competent officer of the requesting Party to be original documents, or to be a true copy or translation thereof, as the case may be; or
2. authenticated in such manner as may be permitted by the laws of the requested Party; and
3. sealed with the official seal of the Minister or Secretary of State or other competent authority of the requesting Party.

ADDITIONAL EVIDENCE OR INFORMATION

1. If the requested Party requires additional evidence or information to enable it to decide on the request for extradition, the requesting Party shall submit the necessary additional evidence or information to the requested Party within such time as may be determined by the requested Party.
2. If the person whose extradition is sought is in custody and the additional evidence or information referred to in subarticle (1) is insufficient or if such evidence or information is not submitted to the requested Party within the time determined by the requested Party, that person may be discharged from custody.
3. A discharge contemplated in subarticle (2) shall not debar the requesting Party from submitting another request for extradition in respect of the same offence.

RULE OF SPECIALITY

1. No person surrendered in terms of this Agreement shall be detained or tried by the requesting Party for any offence committed prior to his surrender other than the offence in respect of which his surrender was ordered or an offence of which he may lawfully be convicted on a charge of the offence in respect of which his surrender was ordered, unless-
1. the requested Party or such person consents thereto; or
2. such person, having had an opportunity of returning to the territory of the requested Party, has not done so within 45 (forty-five) days from the date of his final discharge, or has voluntarily returned to the territory of the requesting Party after having left it.
2. A request for the consent of the requested Party shall be submitted to such Party by the requesting Party, and shall be accompanied by the documents referred to in articles 11 or 12 as well as any statement made by the person concerned with regard to the relevant offence (if any).

RE-EXTRADITION TO THIRD STATE

1. Except as provided for in article 16 (1)(a) or (b), the requesting Party shall not, without the prior written consent of the requested Party, surrender to a third State any person surrendered to the requesting Party and who is sought by the third State in respect of offences committed by him before his surrender.
2. The requested Party may require the production of the documents referred to in articles 11 or 12 in respect of the offence for which the third State is requesting extradition before giving its consent for re-extradition.

PROVISIONAL ARREST

1. -
1. In a case of urgency the competent authorities of the requesting Party may request the provisional arrest of the person whose extradition is sought.
2. The competent authorities of the requested Party shall decide the matter in accordance with its laws.
2. -
1. A request for provisional arrest shall state that at least one of the documents referred to in article 11 (a) or (b) or article 12(a) or (b), as the case may be, exists and that the requesting Party intends to submit a request for the extradition of the person whose provisional arrest is requested.
2. Such a request shall also contain full particulars of the offence in respect of which extradition is to be requested (including the date and place of the commission of the offence) as well as a description of the person whose extradition is sought.
3. -
1. A request for provisional arrest shall be sent to the competent authorities of the requested Party either through the diplomatic channel or direct by post or telegraph or in any other manner affording evidence in writing and which is acceptable to the requested Party.
2. The competent authorities of the requesting Party shall be informed as soon as possible of a decision concerning such request.
4. -
1. Provisional arrest may be terminated if the requested Party has not within 15 (fifteen) days from such arrest received a request for extradition.
2. In any event, the person whose extradition is sought shall not be detained for a period exceeding 28 (twenty eight) days from the date of his provisional arrest if the requested Party has not received the request for extradition and the documents referred to in articles 11 or 12 within the said 28 day period.
3. The requested Party may at any time release the person whose extradition is sought from provisional arrest: Provided that if he is so released, the requested Party shall take whatever measures available under its laws that it considers necessary to prevent the departure from its territory of the person whose extradition is sought.
5. Release from provisional arrest shall not preclude re-arrest and extradition if a request for extradition is received subsequently.

CONFLICTING REQUESTS

If extradition of the same person is requested concurrently by more than one State, either for the same offence or for different offences, the requested Party shall make its decision having regard to all the circumstances and especially the relative seriousness and place of commission of the offences, the respective dates of the requests, the nationality of the person whose extradition is sought, his usual place of residence and the possibility of subsequent extradition to another State.

SURRENDER OF THE PERSON TO BE EXTRADITED

1. The requested Party shall inform the requesting Party of its decision with regard to a request for extradition.
2. Reasons shall be given by the requested Party for any complete or partial rejection of a request for extradition.
3. If a request for extradition is granted, the requested Party shall inform the requesting Party of the place and date of surrender of the person whose extradition is sought and of the length of time for which such person would have been detained between the date of committal and the date of surrender.
4. If the requesting Party has on the fixed date failed to receive the person whose extradition is sought, the requested Party may, subject to the provisions of subarticle (5), release such person after the expiry of 30 (thirty) days from such date and the requested Party may thereafter refuse to extradite such person for any offence arising out of circumstances related to the offence for which his extradition was originally requested.
5. If circumstances beyond its control prevent either the requesting Party or the requested Party from respectively surrendering or receiving the person to be extradited, the Party so prevented shall notify the other Party accordingly and the Parties shall then fix another date for such surrender and the provisions of subarticle (4) shall thereupon apply to the new date so fixed.

HANDING OVER OF PROPERTY

1. The requested Party shall, subject to its laws and at the request of the requesting Party, hand over to the latter, property-
1. which may be required as evidence; and
2. which has been seized under the authority of a search warrant or which, at the time of arrest, was found in the possession of the person whose extradition is sought.
2. The property referred to in subarticle (1) shall be handed over even if extradition, having been granted, for any reason cannot be carried out.
3. When the said property is liable to seizure or confiscation in the territory of the requested Party, the latter may, in connection with pending criminal proceedings, temporarily retain it or hand it over to the requesting Party on condition that it be returned within a fixed period of time.
4. -
1. Any rights which the requested Party or third parties may have acquired in the said property shall remain unaffected.
2. Where such rights exist, the property shall be returned without charge to the requested Party as soon as possible after the completion of criminal proceedings, unless such rights have been waived.

TRANSIT

1. Transit through the territory or airspace of either Party shall be granted to the other Party in respect of the extradition of any person from the territory of a third State, subject thereto that-
1. a request for such transit shall be submitted to the other Party in the same manner prescribed in articles 11 or 12, for a request for extradition;
2. the provisions of this Agreement shall mutatis mutandis apply to such a request as if it were a request for extradition; and
3. the Party requested to grant transit may require the production of the documents referred to in articles 11 or 12 before granting the request for transit through its territory.
2. Any right of transit obtained in terms of subarticle (1) shall be exercised subject to such conditions as may be prescribed by the requested Party.
3. Notwithstanding the provisions of this article, the requested Party may refuse a request for transit if it is of the opinion that such transit would endanger public order in its territory.

LANGUAGE

Any document which is to be produced as evidence at any extradition proceedings shall be accompanied by a certified translation thereof into the English language if the original document is not in that language.

EXPENSES

1. Expenses incurred in the territory of the requested Party by reason of the arrest, detention, maintenance and surrender of the person whose extradition is sought, and of any court proceedings arising from the request for extradition, shall be borne by the requested Party.
2. The requesting Party shall bear the expenses occasioned by the conveyance of the person whose extradition is sought from the place where he is surrendered to its own territory.
3. Expenses incurred by reason of transit through the territory of a Party requested to grant transit shall be borne by the requesting Party.

RELATION BETWEEN THIS AGREEMENT AND EXISTING AGREEMENTS

This Agreement shall upon its entry into force supersede any bilateral agreement governing extradition existing between the Parties.

APPLICATION OF AGREEMENT

This Agreement shall apply to any offence specified in article 2 committed after the date upon which the Agreement enters into force.

INTERNATIONAL CONVENTIONS

Nothing in this Agreement shall affect the application of any international convention which includes provisions relating to extradition and to which both Parties are parties.

ENTRY INTO FORCE

This Agreement shall enter into force on a date mutually agreed upon by the Parties confirming that it has been approved in accordance with constitutional procedures or laws of the Parties and shall continue to be in force unless terminated under article 30 hereof.

AMENDMENT

1. Any amendment to this Agreement mutually agreed upon by the Parties shall be effected by the exchange of Diplomatic Notes.
2. Such an amendment shall enter into force when both Parties have, in writing, signified to one another their consent thereto.

TERMINATION

1. Either Party may terminate this Agreement at any time by giving six months' written notice of termination to the other through the diplomatic channel.
2. The Agreement shall cease to have effect six months after receipt of the said notice.

IN WITNESS WHEREOF the undersigned, being duly authorised thereto by their respective Governments, have signed and sealed this Agreement, in duplicate, in English.

DONE AT CAPE TOWN,
this twentieth day of June 1995

A M OMAR
FOR AND ON BEHALF OF THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA

K A MAOPE
FOR AND ON BEHALF OF THE GOVERNMENT OF THE KINGDOM OF LESOTHO