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Published online by Cambridge University Press: 28 July 2009
The countries of Southern Africa are organized under the Southern African Development Community (SADC). They share a common social and cultural affinity, a common historical experience of colonization, and common problems and aspirations. One of their shared problems is crime, both within and across their borders. Cross-border crime is facilitated by their common and often long and open borders, the affinity of their peoples, the improved transport systems by road, rail, air and sea, and die concomitant heavy traffic of persons and goods between the common borders. Regarding this traffic, moves are already under way to make it even easier by progressively eliminating all obstacles to movement of persons within the region. It is believed that individuals are both agents and the ultimate beneficiaries of regional co-operation. Said Dr Kaire Mbuende, the Executive Secretary of SADC: “We do not see how else the SADC can come into being unless the people of the region are able to interact freely across national borders, to share their skills, experiences and resources”. This freer movement of persons within the region will also inevitably mean the freer movement of criminals and contraband across the borders.
1 They are: Angola, Botswana, Lesotho, Malawi, Mozambique, Namibia, South Africa, Swaziland, Tanzania, Zambia and Zimbabwe.
2 See “Technical workshop to finalise draft protocols on the free movement of persons set for Lesotho”, Daily News (Gaborone), 13 March, 1996.Google Scholar
3 See South African Police Service, Report on the Incidence of Crime During 1995, compiled by the Crime Research Component of the National Crime Information Management Centre, April 1996, 3 and 42.
4 South African Police Service, “Illicit cross-border drug trafficking as a national and international threat”, presented by Major General Venter, C.J.D. at the Joint Southern African Development Community (SADC)/European Union (EU) Regional Conference, Mmabatho, North West Province, South Africa, 30 October-2 November, 1995.Google Scholar
5 Annual Report of the Commissioner of the Botswana Police for the year 1995.
6 See UNDCP Presentation at the SADC/EU Conference on Cross-border Trafficking on “The need for harmonising judicial controls and administrative procedures, compliance with international conventions and international experiences.” See also Interpol, “The African panorama: illicit traffic in drugs and psychotropic substances”, paper presented at the 2nd Meeting of African Heads of National Drug Services, Lusaka 29–30 May, 1995.Google Scholar
7 South African Police Service, ibid.
8 Interpol, ibid.
9 Interpol, ibid. “Many Indians have settled in African countries. They have acquired citizenship of those countries. They have ethnic ties in India. These groups send couriers who are received by the Indians, put up in cheap hotels, helped in the procuring and concealment of methaqualone tablets and obtaining return passage.”
10 South African Police Service, ibid.
11 The only extradition treaties in the region were those between South Africa and Swaziland (1968), with Botswana (1969) and with Malawi (1972). Generally see Dirk van Zyl Smit, “Reentering the international community: South Africa and extradition”, (1995) 6 Criminal Law Forum 369.CrossRefGoogle Scholar
12 In R v. Sambo [1970–76] Swaziland Law Reports 133 the accused was charged in a Swaziland court with the theft of goats from South Africa. On the issue of whether the courts had jurisdiction o t try him die court said: “The court has no jurisdiction to try a criminal offence completed outside Swaziland. But theft being a continuous offence, the offence continues to be committed as long as the stolen property is in possession of the thief. Therefore if the goats were proved to have been in possession of the accused in Swaziland, the theft would be regarded as having been committed in Swaziland although the original contrectatio took place in the Republic of South Africa.”
13 In Stale v. Masilo & Another [1971] Botswana Law Reports 61 the accused were charged before a Botswana court with stealing cattle from Rhodesia. It was held that the court had no jurisdiction to try the offence which was completed in Rhodesia. According to Botswana law, theft was not a continuing offence.
14 See for example Godfrey Miyanda v. Attorney-General of Zambia [1983] Zambia Law Reports 78.
15 See for example S v. Ebrahim [1991] 2 South African Law Reports 553 (A).
16 See for example s. 26(3) of the 1995 National Unity and Reconciliation Act of South Africa, Act No. 34 of 1995.
17 S. 7(2) of the Botswana Extradition Act, Act 18 of 1990. For similar provisions see s. 5(3) of the Botswana Mutual Assistance in Criminal Matters Act, Act No. 20 of 1990.
18 For example see the Botswana Proceeds of Serious Crime Act, Act No. 19 of 1990.
19 South African Police Service, Report of the Incidence of Crime during 1995, at 26.
20 Draft Protocol on the Movement of Persons in the Southern African Development Community (SADC), art. 17(2), 15 March, 1996.Google Scholar
21 Art. 2 of the Protocol on Illicit Trafficking in Southern African Development Community, signed by the Heads of State or Government on 24 August, 1996, at Maseru, Lesotho.Google Scholar
22 These are the 1961 Single Convention on Narcotic Drugs, as amended by the 1972 Protocol; the 1971 Convention on Psychotropic Substances; and the 1988 Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. [Eds note: For details of African states that are parties to the conventions, see (1995) 39 J.A.L. 104–105.]CrossRefGoogle Scholar
23 Art. 5(1).
24 Art. 5(2).
25 UN General Assembly Resolution No. 45/117 of 14 December, 1990.
26 See, for example, s. 5 of the Botswana Mutual Assistance in Criminal Matters Act, Act No. 5 of 1990.
27 Art. 5(5).
28 The United Nations Model Treaty on Mutual Assistance, above, lists some of these matters as possible grounds for withholding mutual assistance.
29 Mutual Assistance in Criminal Matters Act, Act No. 20 of 1990, ss. 7 and 8.
30 Art. 6.
31 ibid.
