Prosecuting International Crimes in Africa - PULP - University of ...

320 Chapter 14
(d) the service of documents, including judicial documents; 54
(e) facilitating the voluntary appearance of persons as witnesses or experts
before the Court; 55
(f) the temporary transfer of persons in custody for purposes of
identification or for obtaining testimony or other assistance;
(g) the examination of places or sites, including the exhumation and
examination of grave sites;
(h) the execution of searches and seizures; 56
(i) the provision of records and documents, including official records and
documents; the protection of victims and witnesses and the preservation of
evidence;
(j) the identification, tracing and freezing or seizure of proceeds, property
and assets and instrumentalities of crimes for the purpose of eventual
forfeiture, without prejudice to the rights of bona fide third parties; 57 and
(k) any other type of assistance which is not prohibited by law, with the view
to facilitating the investigation and prosecution of crimes within the
jurisdiction of the Court.
With respect to the examination of witnesses, this is regulated by sections
15, 16, 17, 18 and 19 of the ICC Act and provides for the procedure for the
examination of witnesses before a magistrate, the rights and privileges of
the witness, the offences which a witness might commit, and the procedure
by which the attendance of a witness might be secured in proceedings
before the ICC. 58
6 Declaration of the seat of the ICC within South
Africa and associated measures of assistance
Section 6 of the ICC Act provides that, consequent upon a request by the
ICC, the president may declare any place in the Republic to be the seat of
53 Regard must be had to the provisions of sec 35 of the South African Constitution and
art 55 of the Rome Statute which guarantee certain rights to a person under
investigation, such as the right against self-incrimination, the right to remain silent, and
the right to legal assistance.
54 This is regulated by sec 21 of the ICC Act.
55
Sec 20 of the ICC Act regulates the transfer of a prisoner to the ICC for the purposes of
giving evidence or to assist in an investigation.
56 This is regulated by sec 30 of the ICC Act. This is limited specifically to requests made
by the ICC and for investigations related to the ICC.
57 The making of forfeiture and confiscation orders is regulated in sec 14(k), 22(1) and
27(1). This provision is modelled on art 93(1)(k) of the Rome Statute which provides for
the ‘identification, tracing and freezing or seizure of proceeds, property ... [etc] for the
purposes of eventual forfeiture’. Once a restraint order has been ‘registered’ by the
relevant Registrar of the High Court, the ICC Act provides that the order has the effect
of a restraint order made by that High Court under the Prevention of Organised Crime
Act 121 of 1998. According to sec 28(1) of the ICC Act, where a confiscation order has
been `registered', the order has the effect of a civil judgment of the court at which it has
been registered.
58 Du Plessis (n 1 above) 204.