Justice and Correctional Services Minister Ronald Lamola on Tuesday confirmed receiving a mandamus application from Afriforum on behalf of the Republic of Botswana.
The application contains confirmatory affidavits purportedly signed by the Director of Public Prosecutions and Head of International Cooperation Unit at the Directorate of Public Prosecutions in the Republic of Botswana respectively.
This follows reports that Afriforum, a non-state actor, has been briefed to act on behalf of the Republic of Botswana to obtain mutual legal assistance from South Africa’s Central Authority for Mutual Legal Assistance (MLA) and Extraditions, which is the Department of Justice and Constitutional Development.
Mutual legal assistance in criminal matters is a process by which States seek and provide assistance to other States in servicing of judicial documents and gathering evidence for use in criminal cases.
These requests are conventionally transmitted through diplomatic channels to provide for direct communication between central authorities of concerned states. Under normal circumstances, each state usually appoints a Central Authority to receive assistance requests and the Central Authorities communicate with each other directly and forward the requests for assistance to the competent authority in their respective States.
South Africa receives numerous Mutual Legal Assistance (MLA) requests every year from states all over the world.
The enlisting of the assistance of a non-governmental organization, to deal with such matters, which are pure of a diplomatic and bilateral nature, is unprecedented.
In international law, the SADC Protocol on Mutual Legal Assistance in Criminal Matters makes no provision for non-governmental entities to serve as intermediaries between States whether solicited or not, since bilateral relations is the exclusive preserve of sovereign nations.
South Africa and Botswana enjoy strong historical relations dating back to the days of the struggle against apartheid.
To underscore the point, in the past year alone, South Africa has provided Botswana with mutual legal assistance on six matters.
“We have taken note of the court application by Afriforum. The Minister of Justice and Correctional Services has subsequently instructed the State Attorney to oppose the application,” the Department of Justice and Constitutional Development said in a statement.
The Mutual Legal Assistance request in this case refers to an alleged element of money laundering.
“Owing to the nature of the alleged crime which is a serious crime in South Africa, there is legal requirement for law enforcement agencies to conduct a preliminary investigation, as such, a request of this nature may become protracted and complicated by the multiplicity of law enforcement agencies involved.
“This is not peculiar to South Africa, it is standard practice across the world. In our case, the procedures on how such matters are to be facilitated are provided for in the International Co-operation in Criminal Matters Act, 1996 (Act 75 of 1996).
“As sisterly nations do, we have been communicating directly with the Central Authority in Botswana, the Director of Public Prosecutions and Head of International Cooperation Unit at the Directorate of Public Prosecutions in the Republic of Botswana respectively.”
The Republic of Botswana, through these established channels of communication, has indicated that, on this matter in particular, a new request will be made.
“This new request has not been received yet,” the department said. – SAnews.gov.za