Official and unofficial reports indicate that the South African government is in the process of entering into prisoner transfer agreements or making prisoner transfer arrangements. This comes after many years of reluctance on the part of the government to sign a prisoner transfer agreement or enter into any prisoner transfer arrangement. The reason for this change of position is not clear. In this article the author demonstrates what he considers to be the factors behind this change and discusses the issues that South Africa is likely to grapple with when the process of transferring offenders to South Africa commences.
That does not avail the applicants as it is based on the narrow view that once Mauritius is prepared to enter into a [Prisoner Transfer Agreement] PTA, the government is somehow compelled to enter into such an agreement without further ado. The ... respondent's submissions that the government has to take into consideration a number of other factors cannot be faulted ... there are 1049 South Africans who are prisoners in Brazil, an as yet undetermined number in other countries and that there are policy considerations to exclude certain types of crimes (for example drug related offences). In other words there are various factors to be considered and for this reason the government has decided not to enter into a PTA with Mauritius. However, the decision has not been cast in stone. It has left open the possibility that it may do so in the future after considering all the other factors that have a bearing on the matter.
The applicant concedes that she may not have a right to insist that the Government enter into a PTA. I am of the view that the reasons given by the ... respondent, objectively considered, are not only sufficient but also cannot be regarded as irrational. They are rationally connected to the decision not to enter into a PTA with Mauritius at this stage and are justifiable. In addition, if the government were to enter into a PTA with Mauritius it may well be accused of being unfair and treating the same or different classes of South Africans imprisoned abroad unequally.
The eight pronged strategy that are [sic] utilised to down manage overcrowding is proving to be effective, while there is a need to make greater impact on the level of overcrowding. The draft protocol on interstate transfers of inmates10 has been widely consulted in the [Justice, Crime Prevention, and Security] Cluster and submitted to [the Department of International Relations and Cooperation] via Branch [Africa Correctional Services Association] & [the Southern African Development Community]. While the interstate transfer approach is driven by the department's approach to rehabilitation and the inability of effective reintegration of foreign nationals into their home countries, such inter-state transfers will also have a positive impact on levels of overcrowding.
Following a request from Cabinet, a memorandum to approve the adoption of a South African policy position on the PTA has been completed. Once a policy position has been adopted by Cabinet, the specific nature of agreements will be negotiated on a case by case basis. In conjunction with sister departments (including Justice and Home Affairs) the PTA has been initiated and (will follow) due process.
States Parties may consider entering into bilateral or multilateral agreements or arrangements on the transfer to their territory of persons sentenced to imprisonment or other forms of deprivation of liberty for offences established in accordance with this Convention in order that they may complete their sentences there.
The first challenge is probably the nature of the agreements that South Africa is likely to enter into. As indicated earlier, the spokesperson for the Department of Correctional Services stated that South Africa will negotiate prisoner transfer agreements on a case by case basis. It is not clear what factors will be considered in deciding with which countries South Africa will sign a prisoner transfer agreement and with which it will not. The decision could be based inter alia on the number of foreign nationals of a given country in South African prisons or the number of South African nationals in a given country's prisons. The greater the number, the more likely it is that such an agreement will be signed, because such high numbers of prisoners would be straining South African resources. Although South Africa has not made a final decision in respect of its approach regarding prisoner transfer agreements, it is the author's view that the best approach would be for South Africa to adopt more than one approach on the issue of prisoner transfer, because the practice of countries such as the United Kingdom24 and Canada25 with experience in the transfer of offenders shows that they have followed a multifaceted approach. A multifaceted approach is called for because it would enable South Africa to transfer offenders to and from as many countries as possible - countries that are states parties to the multilateral agreements, as well as those with which South Africa has signed bilateral prisoner transfer agreements.
The second approach would be the one suggested by the DCS spokesperson, that is, that the South Africa proceed on a case by case basis. This approach has been adopted between some African countries, such as between Zambia and Mozambique,28 Ghana and Nigeria,29 Mauritius and Tanzania,30 Mozambique and Malawi,31 and Malawi and Zambia,32 and also by the United States of America with countries such as Bolivia, Mexico, France, Panama, Peru, Thailand, Turkey, Hong Kong, and Canada,33 and by the United Kingdom with various African, Asian and Latin American countries.34 The third approach would be for South Africa to ratify the two35 multilateral treaties on the transfer of offenders - the Council of Europe's Convention on the Transfer of Sentenced Persons (1985), and the Inter-American Convention on Serving Criminal Sentences Abroad (1993). Although these are both regional treaties, they are open for ratification by countries outside the relevant regions, and indeed some countries outside these regions have ratified these treaties. The Inter-American Convention on Serving Criminal Sentences Abroad (1993) has been ratified by Saudi Arabia and the Czech Republic,36 and the Council of Europe's Convention on the Transfer of Sentenced Persons (1985) has been ratified by the following non-Council of Europe member states: Australia, Bahamas, Bolivia, Canada, Chile, Costa Rica, Ecuador, Honduras, Israel, Japan, Korea, Mauritius, Mexico, Panama, Philippines, Tonga, Trinidad and Tobago, the United States of America and Venezuela.37 By ratifying the Council of Europe's Convention on the Transfer of Sentenced Persons (1985) and the Inter-American Convention on Serving Criminal Sentences Abroad (1993), South Africa would be able to have its nationals who are imprisoned in states parties to these treaties transferred to South Africa on the basis of these treaties.
several discussions did take place with the Department of Foreign Affairs as to [the] possibility to utilise the Commonwealth Scheme for the Transfer of Convicted Prisoners ... [as the] Scheme have [sic] the benefit that the [sic] if South Africa accede [sic] to it and it is incorporated in law, all the Commonwealth Countries are included and then it is not necessary to enter into a bilateral agreement with every country.
[H]er claim that she has been detained in the UK unlawfully cannot succeed unless it is shown that she suffered a flagrant denial of justice in Laos. For the reasons that we have given, she has not been able to satisfy this high test. The test is rightly set very high. That is because it is important not to jeopardise or undermine the treaties for the repatriation of prisoners which the UK now has with many countries, so that those who are convicted abroad can serve their sentences here. If persons who have been convicted and sentenced abroad and have procured their transfer to the UK were easily able to obtain their liberty by challenging the fairness of their convictions, there would be a grave danger that these important treaties would be set at nought. That would be highly regrettable.
Experience from other parts of the world illustrates what could constitute a flagrant denial of justice. In Stoichkov v Bulgaria54 the European Court of Human Rights held that criminal proceedings that were held in absentia, and whose re-opening was subsequently refused, without any evidence that the accused had waived his right to be present during the trial, amounted to a flagrant denial of justice. Recently the High Court in the United Kingdom in the case of Omar Othman Aka Abu Qatada v Secretary of State for the Home Department55 held that deporting the applicant to Jordan where "there was a real risk" that evidence obtained by torture would be admitted at his retrial posed a "a real risk that he would be subject to a flagrant denial of justice."56 It is submitted that in the light of the fact that the South African Constitution provides that the accused's right to a fair trial includes the right "to be present when being tried",57 a person's trial in absentia, unless justified in terms of the law,58 would be a flagrant denial of justice. Furthermore, in the light of the fact that South African courts have held that evidence obtained through torture will always render a trial unfair and also be detrimental to the administration of justice,59 a conviction based on evidence obtained through torture would be obtained as a result of a flagrant denial of justice.
(1) When interpreting the Bill of Rights, a court, tribunal or forum - (b) must consider international law; and (c) may consider foreign law.
South African courts have referred to the jurisprudence not only of the European Court of Human Rights but also of the courts in the United Kingdom in interpreting the Bill of Rights.60 It is argued that in cases of prisoner transfer, such jurisprudence could also be of guidance, because, as stated earlier, the South African Constitution does not have extra-territorial application. However, the issue becomes different if the argument is that a trial did not meet the requirements of a fair trial under international law - that is, under the ICCPR and the African Charter. In such a case, South African courts would be called upon to assess whether the trial in question was in accordance with those international treaties or not. The response to this argument could be that the Constitution allows South African courts to refer to international law in interpreting the Bill of Rights but not to interpret international law. If an offender is of the view that his trial was contrary to these international human rights instruments and that therefore his continued detention in South Africa, with the approval of the South African courts, is contrary to South Africa's international human rights obligations, he then has the right under the relevant instruments to approach the appropriate treaty enforcement bodies. There is precedent that indeed some South Africans have taken South Africa to those bodies in a bid to ensure that their rights are protected.61 The challenge is that South Africa does not appear to be taking these bodies seriously.62 Be that as it may, this could pose a problem for South Africa. For example, the African Commission held recently that Egypt should release prisoners whose trial was conducted contrary to article 7 of the African Charter.63 What would be the response of the South African courts to such a recommendation? It is a question that is not easy to answer, especially in view of the fact that the decisions of the human rights bodies are not binding.
1. In the case of continued enforcement, the administering State66 shall be bound by the legal nature and duration of the sentence as determined by the sentencing State.
2. If, however, this sentence is by its nature or duration incompatible with the law of the administering State, or its law so requires, that State may, by a court or administrative order, adapt the sanction to the punishment or measure prescribed by its own law for a similar offence. As to its nature, the punishment or measure shall, as far as possible, correspond with that imposed by the sentence to be enforced. It shall not aggravate, by its nature or duration, the sanction imposed in the sentencing State, nor exceed the maximum prescribed by the law of the administering State.
49. Where the administering State opts for the "continued enforcement" procedure, it is bound by the legal nature as well as the duration of the sentence as determined by the sentencing State (paragraph 1): the first condition ("legal nature") refers to the kind of penalty imposed where the law of the sentencing State provides for a diversity of penalties involving deprivation of liberty, such as penal servitude, imprisonment or detention. The second condition ("duration") means that the sentence to be served in the administering State, subject to any later decision of that State on, for example, conditional release or remission, corresponds to the amount of the original sentence, taking into account the time served and any remission earned in the sentencing State up to the date of transfer.
50. If the two States concerned have different penal systems with regard to the division of penalties or the minimum and maximum lengths of sentence, it might be necessary for the administering State to adapt the sanction to the punishment or measure prescribed by its own law for a similar offence. Paragraph 2 allows that adaptation within certain limits: the adapted punishment or measure must, as far as possible, correspond with that imposed by the sentence to be enforced; it must not aggravate, by its nature or duration, the sanction imposed in the sentencing State; and it must not exceed the maximum prescribed by the law of the administering State. In other words: the administering State may adapt the sanction to the nearest equivalent available under its own law, provided that this does not result in more severe punishment or longer detention... [T]he procedure under Article 10.2 enables the administering State merely to adapt the sanction to an equivalent sanction prescribed by its own law in order to make the sentence enforceable. The administering State thus continues to enforce the sentence imposed in the sentencing State, but it does so in accordance with the requirements of its own penal system.
[s]ubject to any other law, the effect of a sentence of imprisonment for life imposed on or after the date of commencement of the Criminal Procedure and Evidence Amendment Act, 1997, shall be that the person so sentenced shall remain imprisoned for the rest of his life.
Indeed, courts, including the Constitutional Court, have ordered the Department of Correctional Services to consider the placement on parole of offenders sentenced to life imprisonment.72 What would happen in such a case is for the relevant prisoner transfer agreement or legislation in South Africa to provide for the adaptation of the sentence in question. There are different ways of doing this. In Mauritius it is the offender who must apply for such adaptation73 while in other countries such as Uganda74 and Namibia75 it is done by the relevant government office. If a South African has been sentenced to life imprisonment in Malawi, for example, after the coming into force of the Malawian Prisons Bill76 in terms of which an offender sentenced to life imprisonment is supposed to be considered for parole after serving 12 years' imprisonment,77 the nature of the sentence would be compatible with South African law but its duration incompatible therewith. In this case, although such an offender's sentence could be adapted to one of life imprisonment in South Africa, he has to be considered for parole after serving 12 years. This is so because if his life sentence were to be governed by South African parole law, he would have to spend more time in prison than if he had served his sentence in Malawi, before being considered for parole.
51. Article 11 concerns the conversion of the sentence to be enforced, that is the judicial or administrative procedure by which a sanction prescribed by the law of the administering State is substituted for the sanction imposed in the sentencing State, a procedure which is commonly called "exequatur". The provision should be read in conjunction with Article 9.1. b. It is essential for the smooth and efficient functioning of the convention in cases where, with regard to the classification of penalties or the length of the custodial sentence applicable for similar offence, the penal system of the administering State differs from that of the sentencing State.
52. The article does not regulate the procedure to be followed. According to paragraph 1, the conversion of the sentence is governed by the law of the administering State.
...the substitution by a sanction of a different nature or duration does not imply any modification of the judgment; it merely serves to obtain an enforceable sentence in the administering State.
As indicated earlier, one of the options available to South Africa is to ratify the Convention on the Transfer of Sentenced Persons (1985). It is critical to look at the approaches that different countries have taken in relation to the issue of continued enforcement versus conversion. Some countries such as the United Kingdom, Andorra, Bahamas, Belgium, Ireland, Japan, Korea, Luxemburg, Spain, and Switzerland have made it very clear that they would exclude the conversion procedure "in cases when the [the country in question] is the administering State."82 This means that offenders transferred to these countries cannot have their sentences converted.83 Mexico made a declaration that the conversion procedure "will not apply if the Mexican Government is the State answering favourably to a request."84 France made a declaration that it "intends to exclude the application of the [conversion] procedure...in its relations with the other Parties."85 Italy, Malta, and Liechtenstein exclude the application of the conversion procedure whether they are the sentencing or administering states.86 Some countries such as Georgia and Russia made reservations on ratifying the Convention that they will not accept the continued enforcement of sentences.87 Any country transferring offenders to Georgia or Russia has to accept that these countries will convert the sentence in question. The Republic of San Marino will allow continued enforcement only in "special cases" and if it is the administering state, but as a general rule it will convert the sentences imposed on the transferred offenders. Greece makes it very clear that it "excludes the application of the [conversion] procedure ... By way of exception, if a sentenced person cannot be transferred to Greece" under the continued enforcement procedure, "the Greek Ministry of Justice is competent to decide whether the [conversion] procedure...will be followed."88 What emerges from the above is that different countries have adopted different approaches on the issue of conversion versus continued enforcement. Most of the countries have not made reservations or declarative interpretations on these issues. This means that these countries are open to continue the enforcement of a sentence or to convert a sentence. It is recommended that such an approach is the best to follow as it gives a statewide discretion to determine the manner in which to deal with the sentence of the sentenced offender.
Related to the above is the fact that the main reason for prisoner transfer, at least in theory, is that offenders would be better rehabilitated if they served their sentences in their home countries to which they, or most of them, would return, after the completion of their sentences.99 The rehabilitation of offenders as the reason for transfers is, however, absent from the legislation on prisoner transfer in African countries. It is not far-fetched to argue that prisoner transfers are increasingly being influenced not by social rehabilitation but rather by the desire of the sending country, especially the rich countries, to get rid of foreign offenders who have broken their laws.100 This could explain why some countries are resorting to compulsory transfers - that is, removing the requirement of the offender's consent to a transfer.101 Assuming that some countries would transfer offenders to South Africa only on condition that they would be rehabilitated, the present situation in most South African prisons with regard to rehabilitation would be a stumbling block. Many prisoners have no access to rehabilitation programmes102 as the Department of Correctional Services spends very little on rehabilitation and the prisons are overcrowded. The need to improve prison conditions cannot be over-emphasised.
Although for many years South Africa has been reluctant to enter into prisoner transfer agreements or arrangements, there is evidence that this position is likely to change. This article has highlighted some of the issues that the South African authorities would have to grapple with in implementing prisoner transfer agreements, in particular when they involve transferring offenders to South Africa. It is evident that the issue of human rights is critical in prisoner transfer arrangements and it is most likely to be one of the critical issues in determining either whether an offender will be transferred to South Africa or will continue to serve his sentence in South Africa. In the light of the fact that South Africa has a Constitution which includes a Bill of Rights and is also a party to international and regional human rights instruments, it is recommended that in any prisoner transfer agreement or arrangement the rights of offenders to be transferred to South Africa should take centre stage. For example, these treaties should provide for the rights to freedom from torture or cruel, inhuman or degrading treatment or punishment, and an offender's right to challenge the transfer decision before a court of law if needs be. It is also recommended that South Africa could adopt different approaches to regulate the transfer of offenders, which means that all of the approaches discussed above should be considered. South Africa should enact prisoner transfer legislation to enable it to transfer offenders with countries with which it does not have a prisoner transfer bilateral treaty or which are not parties to a multilateral treaty to which South Africa is party, should enter into bilateral prisoner transfer agreements or arrangements, and should also ratify or accede to multilateral prisoner transfer treaties. This would give as many South Africans as possible an opportunity to be transferred to South Africa to serve the remainder of their sentences. As regards the enforcement of sentences, it is recommended that South Africa retains the options of continued enforcement and conversion of the transferred sentence. This would ensure that transfers take place between countries that allow conversion of sentences into South African sentences, as well as those that allow transfers only in cases where South Africa will continue with the enforcement of the transferred sentences.
1 Section 73 of the Constitution of the Republic of South Africa, 1996 (hereafter the Constitution) allows a member of parliament to introduce a private member's bill.
2 See submissions by Rudman in PMG 2001 http://www.bit.ly/13X2e3f.
3 Correctional Services Act 111 of 1998.
4 See submissions by the Department of Correctional Services in PMG 2001 http://www.bit.ly/13X2e3f.
5 See submissions by Hendrickse and Ncube in PMG 2000 http://www.bit.ly/11kUVEf.
6 Patricia Gerber v Government of the Republic of South Africa 2010 ZAGPPHC 240 (9 December 2010) (hereafter the Patricia Gerber case).
7 Patricia Gerber para 41.
8 Patricia Gerber para 43.
9 Department of Correctional Services Annual Report 2011/2012 57.
10 As at the time of writing the author's attempts to access a copy of the draft protocol have been futile.
11 See Mhlana 2012 http://www.bit.ly/128pSHi. It was also reported in early 2012 that the "Ministry of Correctional Services says that discussions around the prisoner transfer agreement are at an advanced stage." See Pillay 2012 http://www.bit.ly/13PDc7N.
12 See comments reportedly made by West (founder of the NGO "Locked-Up") in Pillay 2012 http://www.bit.ly/13PDc7N.
13 See Department of Correctional Services 2010 http://www.bit.ly/KVL7tz.
14 Submission by Selfe in PMG 2012 http://www.bit.ly/12G8fF3.
15 See SAPA 2011 http://www.bit.ly/mHpaci.
16 See Pillay 2012 http://www.bit.ly/13PDc7N.
17 See Jones 2009 http://www.bit.ly/11kVgGY.
19 See a 17 of the United Nations Convention against Transnational Organised Crime (2000). South Africa ratified this treaty on 24 February 2004.
20 See a 45 of the United Nations Convention against Corruption (2003). South Africa ratified this treaty on 24 November 2004.
21 South Africa made a reservation to a 35(2) of the Organised Crime Convention, which has to do with the jurisdiction of the International Court of Justice.
22 For a detailed discussion of the legal implications of treaties ratified by South Africa see Glenister v President of the Republic of South Africa 2011 3 SA 347 (CC) 374-5; and generally Dugard International Law 47-80.
23 It should be stated that in terms of s 297B of the Criminal Procedure Act 51 of 1977, a suspended sentence imposed in a different country can be put into effect in South Africa. However, it is beyond the scope of this paper to discuss this section.
24 The United Kingdom ratified the Council of Europe's Convention on the Transfer of Sentenced Persons (1985) and the Scheme on the Transfer of Sentenced Persons within the Commonwealth (1990) and has signed bilateral prisoner transfer agreements with over 20 countries.
25 Canada has ratified the Council of Europe's Convention on the Transfer of Sentenced Persons (1985), the Inter-American Convention on Serving Criminal Sentenced Abroad (1993) and the Scheme on the Transfer of Sentenced Persons within the Commonwealth (1990) and has signed bilateral prisoner transfer agreements with 14 countries. See Correctional Services of Canada 2012 http://www.bit.ly/11kVSMX.
26 See for example s 31 of the Canadian International Transfer of Offenders Act of 2004 c21.
27 See Wan 2008 Brook J Int'l L 463-501.
28 See Lusaka Times 2011 http://www.bit.ly/1aEjCy4.
29 See Modern Ghana News 2010 http://www.bit.ly/17UXP6P.
30 See Agreement between the Government of the United Republic of Tanzania and the Government of the Republic of Mauritius on the Transfer of Convicted Offenders (2008).
31 See allAfrica 2012 http://www.bit.ly/16d7zVL.
32 See allAfrica 2012 http://www.bit.ly/RBrlEU.
33 Abbell International Prisoner Transfer 189-250.
34 These agreements are: Agreement between the Government of the United Kingdom of Great Brttann and Northern Ireland and the Republic of Uganda on the Transfer of Convicted Persons (2 June 2009); Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Ghana concerning the Transfer of Prisoners (17 July 2008); Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Rwanda on the Transfer of Sentenced Persons (11 February 2010); Treaty between the Government of the United Kingdom of Great Britain and Northern Ireland and the Great Socialist People's Libyan Arab Jamahiriya on the Transfer of Prisoners (17 November 2008); Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Kingdom of Morocco on the Transfer of Convicted Offenders (21 February 2002); Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Antigua and Barbuda on the Transfer of Prisoners (23 June 2003); Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Federative Republic of Brazil on the Transfer of Prisoners (20 August 1998) Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Barbados on the Transfer of Sentenced Persons (3 April 2002); Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Government of the Republic of Cuba on the Transfer of Prisoners (13 June 2002); Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Republic of Nicaragua on the Transfer of Prisoners (6 September 2005); Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Government of the Dominican Republic on the Transfer of Prisoners (18 February 2003); Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Bolivarian Republic of Venezuela on the Transfer of Sentenced Persons (12 June 2002); Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of India on the Transfer of Convicted Persons (18 February 2005); Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of St Lucia on the Transfer of Prisoners (27 April 2006); Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Cooperative Republic of Guyana on the Transfer of Prisoners (5 April 2002); Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Islamic Republic of Pakistan on the Transfer of Prisoners (24 August 2007); Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Peru on the Transfer of Sentenced Persons (7 March 2003); Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Democratic Socialist Republic of Sri Lanka on the Transfer of Prisoners (6 February 2003); Treaty between the Government of the United Kingdom of Great Britain and Northern Ireland and the Lao People's Democratic Republic on the Transfer of Sentenced Persons (7 May 2009); Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Kingdom of Saudi Arabia on the Transfer of Sentenced Persons (2 January 2012); Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Republic of Suriname on the Transfer of Prisoners (29 June 2002); and Treaty between the Government of the United Kingdom of Great Britain and Northern Ireland and the Socialist Republic of Vietnam on the Transfer of Sentenced Persons (12 September 2008).
35 Although there is a United Nations Model Treaty on the Transfer of Convicted Persons, the author is not aware of any country that has transferred offenders on the basis of this model treaty. The two treaties referred to above are those that have been implemented by states parties.
36 See OAS Date Unknown http://www.bit.ly/119Xt7T.
37 See Council of Europe 2013 http://www.bit.ly/15CifwK.
38 It provides inter alia for the following: the purpose of the transfer (a 1); the conditions that have to be met by the administering country and the sentencing country before the transfer (a 4); the obligations imposed on the sentencing country (a 5); the offender's consent to the transfer and how it should be verified (a 8); the effect of the transfer for both the sentencing and the administering states (aa 10 and 11); the continued enforcement of the sentence (a 12); pardon, amnesty, commutation and review of sentence (a 13); information on enforcement (a 15) and the costs of the transfer (a 17).
39 See The Commonwealth Date Unknown http://www.bit.ly/YsnMVT.
40 See Parliament UK 2012 www.//bit.ly/14oXBSY.
41 See the submission by the Department of Correctional Services in PMG 2001 http://www.bit.ly/13X2e3f.
42 These rights are: (a) to be informed of the charge with sufficient detail to answer it; (b) to have adequate time and facilities to prepare a defence; (c) to be given a public trial before an ordinary court; (d) to have the trial begin and conclude without unreasonable delay; (e) to be present, when being tried; (f) to choose, and be represented by, a legal practitioner, and to be informed of this right promptly; (g) to have a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly; (h) to be presumed innocent, to remain silent, and not to testify during the proceedings; (i) to adduce and challenge evidence; (j) not to be compelled to give self-incriminating evidence; (k) to be tried in a language that the accused person understands or, if that is not practicable, to have the proceedings interpreted in that language; (I) not to be convicted for an act or omission that was not an offence under either national or international law at the time it was committed or omitted; (m) not to be tried for an offence in respect of an act or omission for which that person has previously been either acquitted or convicted; (n) to be entitled to the benefit of the least severe of the prescribed punishments if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; and (o) to be entitled to appeal to, or to a review by, a higher court.
43 Bogaards vS2013 1 SACR 1 (CC) para 51.
44 Bogaards v S 2013 1 SACR 1 (CC) para 101. See also S v Dzukuda; S v Tshilo 2000 2 SACR 443 (CC) para 9 where the Constitutional Court states that the opening words of s 35(3) "[I]ndicate that such specification is not exhaustive of what the right to a fair trial comprises. It also does not warrant the conclusion that the right to a fair trial consists merely of a number of discrete sub-rights, some of which have been specified in the subsection and others not. The right to a fair trial is a comprehensive and integrated right, the content of which will be established, on a case by case basis, as our constitutional jurisprudence on s 35(3) develops."
45 See generally Schwikkard "Arrested, Detained and Accused Persons" 737-797.
46 See for example Mapule v S 2012 ZASCA 80 (30 May 2012) and the decisions discussed therein as well as S v Mofokeng 2013 1 SACR 143 (FB).
47 Article 14 of the ICCPR provides that: "(2) Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.(3) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; (b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (c) To be tried without undue delay; (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it; (e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court; (g) Not to be compelled to testify against himself or to confess guilt."
48 Article 7 of the African Charter on Human and Peoples' Rights (1981) provides that: "(1) Every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force; (b) the right to be presumed innocent until proved guilty by a competent court or tribunal; (c) the right to defence, including the right to be defended by counsel of his choice; (d) the right to be tried within a reasonable time by an impartial court or tribunal. (2) No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender."
49 See Kaunda v President of the Republic of South Africa 2005 4 SA 235 (CC).
50 See also s 21 of the Constitution on freedom of movement.
51 Drozd and Janousek v France and Span Application No 12747/87 (26 June 1992).
52 Drozd and Janousek v France and Span Application No 12747/87 (26 June 1992) para 110.
53 Samantha Orobator v Governor of HMP Holloway and Secretary of State for Justice  EWHC 58 (Admin) para 140.
54 Stoichkov v Bulgaria Application No 9808/02 (24 March 2005) para 56.
55 Omar Othman Aka Abu Qatada v Secretary of State for the Home Department  EWCA Civ 277.
56 Omar Othman Aka Abu Qatada v Secretary of State for the Home Department  EWCA Civ 277 para 58.
57 Section 35(3)(e) of the Constitution.
58 See, for example, s 159 of the Criminal Procedure Act 51 of 1977 for the circumstances in which criminal proceedings may take place in the absence of the accused.
59 See S v Mthembu 2008 2 SACR 407 (SCA); and Ferreira v Levin; Vryenhoek v Powell 1996 1 SA 984 (CC).
60 See generally Currie and De Waal Bill of Rights Handbook 159-160 (on the issue of international law) and the following cases with regard to the decisions of the British courts that South African courts have referred to in interpreting the Bill of Rights: Mthembi-Mahanyele v Mail & Guardian Ltd 2004 3 All SA 511 (SCA) para 53; South African Broadcasting Corporation Limited v Thatcher 2005 4 All SA 353 (C) para 54; and Pharmaceutical Manufacturers Association of South Africa: In re Ex Parte President of the Republic of South Africa 2000 2 SA 674 (CC). In Oldwage v Louwrens 2004 1 All SA 532 (C) para 4 the Court stated that "[f]oreign case law, in particular judgments of the English courts, although generally [they] do not constitute a binding precedent to our courts, have always had considerable persuave [sic] force and are often referred to by our courts..."
61 See Garreth Anver Prince v South Africa Communication 255/02 (African Commission on Human and Peoples' Rights) alleging the violation of his right to freedom of worship; and Gareth Anver Prince v South Africa 1474/2006 (Human Rights Committee) - freedom of worship and religion; Bradley McCallum v South Africa Communication No 1818/2008 UN Doc CCPR/C/100/D/1818/2008 (2010) freedom from torture.
62 Bradley McCallum v South Africa Communication No 1818/2008 UN Doc CCPR/C/100/D/1818/2008 (2010) in which the South African government ignored repeated calls from the Human Rights Committee to respond to the complainant's allegations.
63 See Egyptian Initiative for Personal Rights and Interights v Arab Republic of Egypt, Communication 334/06 (decided at the 9th extra-ordinary session held from 23 February to 3 March 2011).
64 See for example Smith v Germany Application No 27801/05 (1 April 2010) paras 40-41 and Buijen v Germany Application No 27804/05 (1 April 2010) paras 41-42 where the offenders argued that they would not have pleaded guilty to the charges against them if they knew that the prosecutor would oppose the conversion of their sentences by the Dutch authorities.
65 For example, Thailand refused to sign a prisoner transfer agreement with The Netherlands because The Netherlands wanted the treaty to include a provision that would allow it to convert the transferred sentence. See The Queen on the Application of: Steven Willcox v Secretary of State for Justice  EWHC 1483 (Admin) para 87. The United Kingdom also refused to consent to the offender's transfer to The Netherlands as his sentence could be converted by the Dutch courts. See The Queen on the Application of Henry Max Shaheen v The Secretary of State for Justice  EWHC 1195 (Admin).
66 The state that administers or enforces the sentence that has been imposed (the receiving state) by the sentencing state or the transferring state (the sending state).
67 Articles 10 and 11 should be read in conjunction with a 9 of the Council of Europe's Convention on the Transfer of Sentenced Persons (1985).
68 In terms of s 337 of the Criminal Procedure and Evidence Act [Chapter 9:7].
69 Sections 51 and 53 of the Criminal Law Amendment Act 105 of 1997.
70 Correctional Services Act 111 of 1998.
71 See S v Bull 2001 ZASCA 105 (26 September 2001) para 23.
72 See for example Van Vuren v Minister of Correctional Services 2012 1 SACR 103 (CC).
73 See s 6(3) of the Transfer of Prisoners Act 10 of 2001.
74 Section 15(2) of the Transfer of Convicted Offenders Act of 2012.
75 Section 13(2) of the Transfer of Convicted Offenders Act 9 of 2005.
76 See the Malawian Prisons Bill of 2003.
77 Clause 53(1)(b) of the Malawian Prisons Bill of 2003.
78 Council of Europe Date Unknown http://bit.ly/132UJpp paras 11 and 54.
79 Council of Europe Date Unknown http://bit.ly/132UJpp paras 11 and 55.
80 See Smith v Germany Application No 27801/05 (1 April 2010) paras 40-41. See also Buijen v Germany Application No 27804/05 (1 April 2010) paras 41-42.
81 See a 12 of the Scheme on the Transfer of Sentenced Persons within the Commonwealth (1990), which provides for continued enforcement.
82 See the list of declarations made with respect to Treaty No 112 at Council of Europe 2013 http://www.bit.ly/18vzUZd.
82 Council of Europe 2013 http://www.bit.ly/18vzUZd.
83 For a discussion of the practice in the United Kingdom see Van Zyl Smit and Spencer "European Dimension to the Release of Sentenced Prisoners" 25-26.
84 Council of Europe 2013 http://www.bit.ly/18vzUZd.
85 Council of Europe 2013 http://www.bit.ly/18vzUZd.
86 Council of Europe 2013 http://www.bit.ly/18vzUZd.
87 Council of Europe 2013 http://www.bit.ly/18vzUZd.
88 Council of Europe 2013 http://www.bit.ly/18vzUZd.
89 In S v Brophy 2007 2 SACR 56 (W) para 18, it was held that: "Judicial cognisance can also be taken of the gross overcrowding in prisons housing awaiting-trial prisoners. On a prison visit I have seen such conditions. As appears from the annual reports of...the Inspecting Judge of Prisons, these harsh conditions have not been ameliorated." In S v Jacobs 2011 1 SACR 490 (ECP) par 12: "[c]ourts can now in any event take judicial notice of the fact that the country's prisons are grossly overcrowded, particularly the awaiting-trial sections, and that a large number of the awaiting-trial prisoners have been granted bail and cannot afford to pay the bail, which is sometimes a small amount."
90 Lee v Minister of Correctional Services 2013 2 SA 144 (CC).
91 Committee against Torture 2006 http://bit.ly/1aoRW2P para 22.
92 Bradley McCallum v South Africa Communication No 1818/2008 UN Doc CCPR/C/100/D/1818/2008 (2010).
93 See generally African Commission on Human and Peoples' Rights 2005 http://bit.ly/14gRJep.
94 See Department of Correctional Services Annual Report of the Judicial Inspectorate 2011/2012 37, 51-52.
95 Article 7 of the ICCPR.
96 Article 5 of the African Charter provides that: "[e]very individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status. All forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman and degrading punishment and treatment shall be prohibited." For a detailed discussion of the measures taken by the African Commission to promote and protected the right to freedom from torture in Africa, see Mujuzi 2006 AHRLJ 423-441; Long and Murray 2012 AHRLJ 311-347.
97 See Baguma 2009 http://www.bit.ly/1bGpVEi; and Slack 2009 http://www.dailym.ai/u0QoT.
98 See Morris 2011 http://www.bit.ly/vkXxZm.
99 See Van Zyl Smit and Spencer "European Dimension to the Release of Sentenced Prisoners" 43.
100 It has been argued by Van Zyl Smit and Spencer "European Dimension to the Release of Sentenced Prisoners" 43 that: "[w]hile the early Council of Europe instruments in particular were designed to meet humanitarian concerns for offenders who were held in countries other than their own and were thus less likely to be 'socially rehabilitated', the focus has increasingly shifted to the interests of the sentencing states. These states often want troublesome foreign offenders to be returned to their home countries, not because the offenders' interests would be better served by being returned, but because the sentencing states want to be rid of them to reduce the burden they place on overstretched resources for the implementation of sentences." It has been argued by Bassiouni "United States Policies and Practices" 588 that: "[t]he main problems facing a foreign prisoner are the cultural and language barrier, the lack of rehabilitation programmes and refusal of conditional release programmes (due to the perceived flight risk), and the general prejudice faced by the foreign prisoner, other prisoners, and prison staff. Prisoner transfer agreements were seen as a way to alleviate these additional burdens on the foreign prisoner. However, it would appear that these treaties are now also seen as a method by which the sentencing country can expel foreign prisoners and relieve itself of a considerable financial strain, which is a motive which runs contrary to the humanitarian goals of these treaties."
101 For example, the agreements between the United Kingdom and Libya and Rwanda do not require the offender's consent before the transfer. See a 4(3) (Libya); a 2(3) (Rwanda). The treaty with Rwanda expressly mentions that the offender's consent will not be required for the transfer to take place.
102 Department of Correctional Services Annual Report of the Judicial Inspectorate 2011/2012 43.