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

322 Chapter 14
Correctional Services must consult with the Cabinet and seek the approval
of Parliament with the aim of informing the ICC whether South Africa can
be placed on the list of states willing to accept sentenced persons. Section
32 goes on to provide that if the Republic is placed on the list of states and
is designated as a state in which an offender is to serve a prison sentence,
then such person must be committed to prison in South Africa. The
provisions of the Correctional Services Act 111 of 1998 and South African
domestic law then apply to that individual. The sentence of imprisonment
may only be modified at the request of the ICC, after an appeal by the
prisoner to, or review by, the court in terms of section 32(4)(b) of the Rome
Statute which mirrors article 110(2) of the Rome Statute which states that
the ICC ‘alone shall have the right to decide any reduction of sentence’. 60
A competent sentence could include forfeiture of proceeds, property
and assets derived directly or indirectly from that crime, without prejudice
to the rights of bona fide third parties but only in addition to imprisonment
(article 77(2)(a)). Reparations are also an option in terms of section 75,
which provides that the ICC is empowered to address the issue of
reparations to victims, and may ‘make an order directly against any
convicted person’ specifying reparation. 61 This will most probably take the
form of monetary compensation. Sections 25 and 26 of the ICC Act make
provision for the execution of such fines and compensation orders within
the Republic: sections 25(2) and 25(3) state that such orders must be
‘registered’ with a court in the Republic having jurisdiction. Once the order
has been registered, that sentence or order ‘has the effect of a civil
judgment of the court at which it has been registered’, and the Director-
General of Justice must pay over to the ICC any amount realised in the
execution of the sentence or the order, minus any expenses incurred by the
Republic in the execution thereof. 62
8 Effective implementation and enforcement of the
ICC Act by way of regulation-making
In order to ensure that the ICC Act functions as originally intended,
section 38 of the ICC Act empowers the Minister of Justice to make
regulations regarding the ICC Act when necessary. Section 1 of the Act
60 Du Plessis (n 1 above) 206. Notwithstanding this provision, du Plessis has poignantly
stated that it is doubtful that South Africa will be placed on the list of states available for
enforcement of duty in light of the poor state of prisons in South Africa, which have in
fact been described as being in breach of national law and international standards. Eg,
the Judicial Inspectorate of Prisons reported at the end of 2000 that prisons were
severely overcrowded, with some at 200% occupancy rate, and that a third of the prison
population who were awaiting trial were detained under inhumane conditions. Earlier
reports by groups such as Human Rights Watch show that `South African prisons are
places of extreme violence, where assaults on prisoners by guards or fellow inmates are
common and often fatal.
61
See art 75(2) Rome Statute.
62 Sec 26 ICC Act.