Ministry Justice and Correctional Services

Republic of South Africa

Media Statement
For Immediate Release
25 August 2020

BOTSWANA’S REQUEST FOR MUTUAL LEGAL ASSISTANCE

The Minister of Justice and Correctional Services, Mr. Ronald Lamola, confirms 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 a spate of reports that Afriforum, a non-state actor who 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

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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 organisation,
to deal with such matters which are purely 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 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. To this end,
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.
Ends

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Enquiries
Chrispin Phiri
Spokesperson: Ministry of Justice and Correctional Services
Cell: 081 781 2261