Règle correspondante
South Africa
Practice Relating to Rule 161. International Cooperation in Criminal Proceedings
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
The accused’s position is stated to be that this Court has no jurisdiction to try him.
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed. 
South Africa, Supreme Court, Petane case, Judgment, 3 November 1987, pp. 2–8.
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, pp. 21–22.
[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, p. 66.
In 2014, in a statement before the UN Security Council during a meeting on the protection of civilians in armed conflict, made on behalf of the members of the Human Security Network and on behalf of South Africa as an observer, the permanent representative of Slovenia stated:
States have the obligation to comply with international humanitarian and human rights law and to investigate and prosecute any serious crime committed within its borders. … Impunity is not an option. It encourages perpetrators to continue their atrocious acts. The fight against impunity should be a common effort, in which the affected State delivers and ensures the conditions to bring about justice and the international community provides technical assistance and resources to such States.  
South Africa, Statement by the permanent representative of Slovenia before the UN Security Council during a meeting on the protection of civilians in armed conflict, made on behalf of the members of the Human Security Network and on behalf of South Africa as an observer, UN Doc. S/PV.7109, 12 February 2014, p. 74.
South Africa’s Extradition Act (1962), taking into account amendments up to 2004, states:
1 Definitions
In this Act, unless the context otherwise indicates–
‘associated State’ means any foreign State in respect of which section six [on endorsement for execution of warrants of arrest on a reciprocal basis under extradition agreements with foreign States in Africa] applies;
‘designated State’ means any foreign State designated by the President [of the Republic of South Africa] under section 2(1)(b) [regarding designations for the purpose of section 3(3), below];
extraditable offence means any offence which in terms of the law of the Republic [of South Africa] and of the foreign State concerned is punishable with a sentence of imprisonment or other form of deprivation of liberty for a period of six months or more, but excluding any offence under military law which is not also an offence under the ordinary criminal law of the Republic and of such foreign State;
‘extradition agreement’ means an agreement in force or deemed to be in force under section 2 including a multilateral convention to which the Republic is a signatory or to which it has acceded and which has the same effect as such agreement;
‘foreign State’ includes any foreign territory;
‘magistrate’ includes an additional magistrate and an assistant magistrate;
‘Minister’ means the Minister of Justice;
2 Extradition agreements
(1) The President may, on such conditions as he or she may deem fit, but subject to the provisions of this Act–
(a) enter into an agreement with any foreign State, other than a designated State, providing for the surrender on a reciprocal basis of persons accused or convicted of the commission within the jurisdiction of the Republic or such State or any territory under the sovereignty or protection of such State, of an extraditable offence or offences specified in such agreement and may likewise agree to any amendment or revocation of such agreement; and
(b) designate any foreign State for purposes of section 3(3), and may at any time amend the conditions to which such designation was subjected to or revoke such designation.
(3) No such agreement or designation [of a foreign State] or any amendment thereof, or revocation of the designation, shall be of any force or effect–
(c) unless provision is made by the law of the foreign State or by the agreement, that no person surrendered to such State shall, until he has been returned or had an opportunity of returning to the Republic, be detained or tried in the foreign State for any offence committed prior to his surrender other than the offence in respect of which extradition was sought or an offence of which he may lawfully be convicted on a charge of the offence in respect of which extradition was sought or that no such person shall be so detained or tried without the consent of himself or the Minister.
(3)bis Notwithstanding the provisions of paragraph (c) of subsection (3) any such agreement may provide that any person surrendered to the foreign State in question may with the consent of the Minister and with a view to his surrender to another foreign State be detained in such first-mentioned State for an offence which was committed prior to his surrender to such State and to which the agreement relates.
3 Persons liable to be extradited
(1) Any person accused or convicted of an offence included in an extradition agreement and committed within the jurisdiction of a foreign State … party to such agreement, shall, subject to the provisions of this Act, be liable to be surrendered to such State in accordance with the terms of such agreement, whether or not the offence was committed before or after the commencement of this Act or before or after the date upon which the agreement comes into operation and whether or not a court in the Republic has jurisdiction to try such person for such offence.
(2) Any person accused or convicted of an extraditable offence committed within the jurisdiction of a foreign State which is not a party to an extradition agreement shall be liable to be surrendered to such foreign State, if the President has in writing consented to his or her being so surrendered.
(3) Any person accused or convicted of an extraditable offence committed within the jurisdiction of a designated State shall be liable to be surrendered to such designated State, whether or not the offence was committed before or after the designation of such State and whether or not a court in the Republic has jurisdiction to try such person for such offence.
11 Minister may order or refuse surrender to foreign State
The Minister may–
(b) order that a person shall not be surrendered–
(i) where criminal proceedings against such person are pending in the Republic, until such proceedings are concluded and where such proceedings result in a sentence of a term of imprisonment, until such sentence has been served;
(ii) where such person is serving, or is about to serve a sentence of a term of imprisonment, until such sentence has been completed;
(iii) at all, or before the expiration of a period fixed by the Minister, if he or she is satisfied that by reason of the trivial nature of the offence or by reason of the surrender not being required in good faith or in the interests of justice, or that for any other reason it would, having regard to the distance, the facilities for communication and to all the circumstances of the case, be unjust or unreasonable or too severe a punishment to surrender the person concerned; or
(iv) if he or she is satisfied that the person concerned will be prosecuted or punished or prejudiced at his or her trial in the foreign State by reason of his or her gender, race, religion, nationality or political opinion.
12 Enquiry where offence committed in associated State
(1) If upon consideration of the evidence adduced at the enquiry referred to in section 9 (4) (b) (ii) [on enquiries relating to a person alleged to have committed an offence in an associated State] the magistrate finds that the person brought before him or her is liable to be surrendered to the associated State concerned, the magistrate shall, subject to the provisions of subsection (2), issue an order for his or her surrender to any person authorized by such associated State to receive him or her at the same time informing him or her that he or she may within 15 days appeal against such order to the Supreme Court.
(2) The magistrate may order that the person brought before him or her shall not be surrendered–
(a) where criminal proceedings against such person are pending in the Republic, until such proceedings are concluded and where such proceedings result in a sentence of a term of imprisonment, until such sentence has been served;
(b) where such person is serving, or is about to serve a sentence to a term of imprisonment, until such sentence has been completed; or
(c) at all, or before the expiration of a period fixed by him or her, or make such order as to him or her seems just if he or she is of the opinion that–
(i) by reason of the trivial nature of the offence or by reason of the surrender not being required in good faith or in the interests of justice, or that for any other reason it would, having regard for the distance, the facilities for communication and to all the circumstances of the case, be unjust or unreasonable or too severe a punishment to surrender the person concerned; or
(ii) the person concerned will be prosecuted or punished or prejudiced at his or her trial in the associated State by reason of his or her gender, race, religion, nationality or political opinion.
19 Persons surrendered to [the] Republic not to be detained or tried for certain offences in certain circumstances
No person surrendered to the Republic by any foreign State in terms of an extradition agreement or by any designated State shall, until he or she has been returned or had an opportunity of returning to such foreign or designated State, be detained or tried in the Republic for any offence committed prior to his or her surrender other than the offence in respect of which extradition was sought or an offence of which he or she may lawfully be convicted on a charge of the offence in respect of which extradition was sought, unless such foreign or designated State or such person consents thereto[, p]rovided that any such person may at the request of another foreign or designated State and with a view to his or her surrender to such State, be detained in the Republic for an extraditable offence which was so committed, provided such detention is not contrary to the laws of the State which surrendered him or her to the Republic. 
South Africa, Extradition Act, 1962, as amended to 2004, Sections 1, 2(1), 2(3)(c)–(3)bis, 3, 11(b) –12(2), and 19.
South Africa’s Refugees Act (1998), as amended to 2011, states:
Notwithstanding any provision of this Act or any other law to the contrary, no person may be … extradited … to any other country or be subject to any similar measure, if as a result of such … extradition … or other measure, such person is compelled to return to or remain in a country where–
(a) he or she may be subjected to persecution on account of his or her race, religion, nationality, political opinion or membership of a particular social group; or
(b) his or her life, physical safety or freedom would be threatened on account of external aggression, occupation, foreign domination or other events seriously disturbing public order in any part or the whole of that country. 
South Africa, Refugees Act, 1998, as amended to 2011, Section 2.
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
The accused’s position is stated to be that this Court has no jurisdiction to try him.
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed. 
South Africa, Supreme Court, Petane case, Judgment, 3 November 1987, pp. 2–8.
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, pp. 21–22.
[footnotes in original omitted]
The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris. 
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, p. 66.
South Africa’s Extradition Act (1962), taking into accounts amendments up to 2004, states:
1 Definitions
In this Act, unless the context otherwise indicates–
‘Minister’ means the Minister of Justice;
15 Minister may order cancellation of warrants of arrest or discharge of detained persons
The Minister may at any time order the cancellation of any warrant for the arrest of any person issued or endorsed under this Act, or the discharge from custody of any person detained under this Act, if he is satisfied that the offence in respect of which the surrender of such person is or may be sought, is an offence of a political character or that the surrender of such person will not be sought.
22 Extradition in respect of terrorist and related activities
(1) Notwithstanding the provisions of section 15, a request for extradition based on the offences referred to in section 4 or 5 of the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004 [which designate offences associated or connected with financing of certain specified offences in that Act, and offences relating to explosive or other lethal devices, respectively], may not be refused on the sole ground that it concerns a political offence, or an offence connected with a political offence or an offence inspired by political motives, or that it is a fiscal offence.
(2) The provisions of this section shall in no way affect the application of sections 11([b])(iv) or 12(2)[(c)](ii) of this Act [which provide for refusal of extradition on the basis that the person concerned will be prosecuted, punished or prejudiced at trial by reason of gender, race, religion, nationality or political opinion]. 
South Africa, Extradition Act, 1962, as amended to 2004, Sections 1, 15 and 22(1)–(2).
South Africa’s Protection of Constitutional Democracy Against Terrorist and Related Activities Act (2004) states:
(4) Notwithstanding any provision of this Act or any other law, any act committed during a struggle waged by peoples, including any action during an armed struggle[,] in the exercise or furtherance of their legitimate right to national liberation, self-determination and independence against colonialism, or occupation or aggression or domination by alien or foreign forces[,] in accordance with the principles of international law, especially international humanitarian law, including the purposes and principles of the [1945] Charter of the United Nations and the [1970] Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the said Charter, shall not, for any reason, including for purposes of prosecution or extradition, be considered as a terrorist activity, as defined in subsection (1).
(5) Notwithstanding any provision in any other law, and subject to subsection (4), a political, philosophical, ideological, racial, ethnic, religious or any similar motive, shall not be considered for any reason, including for purposes of prosecution or extradition, to be a justifiable defense in respect of an offence of which the definition of terrorist activity forms an integral part. 
South Africa, Protection of Constitutional Democracy Against Terrorist and Related Activities Act, 2004, Section 1(4)–(5).
The Act defines “terrorist activity” as follows:
In this Act, unless the context indicates otherwise–
(xxv) “terrorist activity”, with reference to this section and sections 2, 3 and 17(2), means–
(a) any act committed in or outside the Republic [of South Africa], which–
(i) involves the systematic, repeated or arbitrary use of violence by any means or method;
(ii) involves the systematic, repeated or arbitrary release into the environment or any part of it or distributing or exposing the public or any part of it [to]–
(aa) any dangerous, hazardous, radioactive or harmful sub-
(bb) any toxic chemical; or
(cc) any microbial or other biological agent or toxin;
(iii) endangers the life, or violates the physical integrity or physical freedom of, or causes serious bodily injury to or the death of, any person, or any number of persons;
(iv) causes serious risk to the health or safety of the public or any segment of the public;
(v) causes the destruction of or substantial damage to any property[,] natural resource[,] or the environmental or cultural heritage, whether public or private;
(vi) is designed or calculated to cause serious interference with or serious disruption of an essential service[,] facility or system, or the delivery of any such service[,] facility or system, whether public or private, including[,] but not limited [to]–
(aa) a system used for, or by, an electronic system[,] including and information system;
(bb) a telecommunication service or system;
(cc) a banking or financial service or financial system;
(dd) a system used for the delivery of essential government services;
(ee) a system used for, or by, an essential public utility or transport provider;
(ff) an essential infrastructure facility; or
(gg) any essential emergency services, such as police, medical or civil defence services;
(vii) causes any major economic loss or extensive destabilisation of an economic system or substantial devastation of the national economy of a country; or
(viii) creates a serious public emergency situation or a general insurrection in the Republic,
whether the harm contemplated in paragraphs (a)(i) to (vii) is or may be suffered in or outside the Republic, and whether the activity referred to in subparagraphs (ii) to (viii) was committed by way of any means or method; and
(b) which is intended, or by its nature and context, can reasonably be regarded as being intended, in whole or in part, directly or indirectly, to–
(i) threaten the unity and territorial integrity of the Republic;
(ii) intimidate, or to induce or cause feelings of insecurity within, the public, or a segment of the public, with regard to its security, including its economic security, or to induce, cause or spread feelings of terror, fear or panic in a civilian population; or
(iii) unduly compel, intimidate, force, coerce, induce or cause a person, a government, the general public or a segment of the public, or a domestic or an international organisation or body or intergovernmental organisation or body, to do or to abstain or refrain from doing any act, or to adopt or abandon a particular standpoint, or to act in accordance with certain principles,
whether the public or the person, government, body, or organisation or institution referred to in subparagraphs (ii) or (iii), as the case may be, is inside or outside the Republic; and
(c) which is committed, directly or indirectly, in whole or in part, for the purpose of the advancement of an individual or collective political, religious, ideological or philosophical motive, objective, cause or undertaking. 
South Africa, Protection of Constitutional Democracy Against Terrorist and Related Activities Act, 2004, Section 1(1)(xxv).
South Africa’s LOAC Teaching Manual (2008) states:
The implementation of the [R]ome [S]tatute of the [I]nternational [C]riminal [C]ourt [A]ct (act no 27 of 2002)
The act places a duty on the rsa [Republic of South Africa] to co-operate with the icc [International Criminal Court] and provides for procedures for arresting accused persons, extradition proceedings and enforcement of penalties, compensatory and confiscation orders of the icc. 
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 5, pp. 260–261.
South Africa’s ICC Act (2002) provides:
The relevant competent authorities in the Republic must, subject to the domestic law of the Republic and the Statute, cooperate with, and render assistance to, the [International Criminal] Court in relation to investigations and prosecutions in the following areas:
(a) The identification and whereabouts of persons or the location of items;
(b) the taking of evidence, including testimony under oath, and the production of evidence, including expert opinions and reports necessary to the Court;
(c) the questioning of any person being investigated or prosecuted;
(d) the service of documents, including judicial documents;
(e) facilitating the voluntary appearance of persons as witnesses or experts before the Court;
(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;
(i) the provision of records and documents, including official records and documents;
(j) the protection of victims and witnesses and the preservation of evidence;
(k) 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 bone fide third parties; and
(l) any other type of assistance which is not prohibited by law, with the view to facilitating the investigation. 
South Africa, ICC Act, 2002, § 14.
In 2009, the Director-General of South Africa’s Department of International Relations and Cooperation stated:
South Africa is [a] State Party of the [1998] Rome Statute of the International Criminal Court and is therefore obliged to cooperate with the court in its investigation and prosecution of crimes within the jurisdiction of the court (Article 86) and hence also in the execution of arrest warrants. It is worth noting that Article 87(7) of the Statute provides that, when a state party fails to comply with a request to cooperate, the court may make a finding to that effect and refer the matter to the Assembly of States Parties, or in the case of a United Nations Security Council (UNSC) referral to the UNSC.
Article 27 of the Rome Statute provides that the official capacity as head of state or government of an accused provides no exemption from criminal responsibility. Furthermore, Section 4(1) of the South African implementation of the Rome Statute of the International Criminal Court Act also ousts the applicability of other domestic laws in respect of an accused, with the result that the immunity from prosecution that President El Bashir would normally have enjoyed in terms of the Diplomatic Immunities and Privileges Act, 2001 (Act No. 37 of 2001), is not [to] be applicable.
An international arrest warrant for President El Bashir has been received and endorsed by a magistrate. This means that if President El Bashir arrives on South African territory, he will be liable for arrest.
The AU [African Union] decision aims to obligate AU Member States not to cooperate with the ICC with regard to the arrest and surrender of African indicted personalities. In this respect, the decision aims to cover persons indicted with regard to all the situations in Africa, namely Sudan, the Democratic Republic of Congo[,] Northern Uganda and the Central African Republic.
Article 98, which is referred to in the decision, creates two situations which aims to stop the court from proceeding with a request for surrender and reads as follows:
The court may not proceed with a request for surrender or assistance which would require the requested state to act inconsistently with its obligations under international law with respect to the state of diplomatic immunity of a person or property of a third state, unless the court can first obtain the cooperation of that third State for the waiver of the immunity.
The court may not proceed with a request for surrender which would require the requested state to act inconsistently with its obligations under international agreements pursuant to which the consent of a sending State is required to surrender a person of that state to the court, unless the court can first obtain the cooperation of a sending State for the giving of consent for the surrender.
The situation foreseen in Article 98(1) will not be applicable in South Africa as Section 4(1) of the Implementation of the Rome Statute of the International Criminal Court Act, ousts the applicability of immunities conferred by the Diplomatic Immunities and Privileges Act, 2001 (Act No. 37 of 2001) and President El Bashir (or any other “African indicted personality”) will not be able to enjoy immunity against the provisions in the Act on South African territory.
It appears that the AU decision is based on a decision by the International Court of Justice that held that the indictment of a Foreign Minister of the Democratic Republic of Congo by Belgium in terms of its domestic law, was in violation of Belgium’s obligations in terms of the international law applicable to immunities (DRC v Belgium (Yerodia Case), ICJ, 2006. It is submitted that due to the position in South African domestic law as set out above, the finding in this case will not be applicable. In any case, it was also held in the Yerodia case that an incumbent or former Minister of Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, when such courts have jurisdiction.
Article 98(2) aims to prevent a conflict between an international agreement[] to which a State was party to before acceding to the Rome Statute or before a request for arrest was made, which provided for a situation where the consent of another state is required before a person of that state can be surrendered to the court and the provisions of the Rome Statute. It appears, also from paragraph ten of the decision, not to be applicable to South Africa because South Africa has not concluded an agreement of that nature with the Sudan or any state.  
South Africa, Statement by the Director-General of the Department of International Relations and Cooperation, 31 July 2009.
In 2013, in a statement before the UN Security Council during a debate on children and armed conflict, made on behalf of the Friends of Children and Armed Conflict, including South Africa, the permanent representative of Canada stated:
Holding perpetrators to account [for] grave violations against children continues to be rare as indicated by the Secretary-General in his annual report, and yet is a crucial element towards protecting children’s rights. The Friends encourage Member States to strengthen national accountability mechanisms and judicial capacities, including by developing child protection legislations that criminalize all grave violations against children. In those cases where national authorities are unwilling or unable to hold perpetrators to account, due to lack of capacity or resources for instance, international justice mechanisms, including through the work of the International Criminal Court, and ad hoc and mixed tribunals, can and should play a complementary role. 
South Africa, Statement by the permanent representative of Canada before the UN Security Council during a debate on children and armed conflict, made on behalf of the Friends of Children and Armed Conflict, namely Andorra, Australia, Austria, Belgium, Benin, Canada, Chile, Costa Rica, Croatia, the Czech Republic, Denmark, Estonia, Finland, Germany, Ghana, Guatemala, Hungary, Italy, Japan, Jordan, Liechtenstein, Mali, Mexico, Namibia, Netherlands, New Zealand, Norway, Peru, Portugal, San Marino, Slovenia, Slovakia, South Africa, the Republic of Korea, Sweden, Switzerland, Tanzania and Uruguay, 17 June 2013, pp. 1–2.
In 2014, in its initial report to the Human Rights Committee, South Africa stated:
The new Extradition Bill, comprehensive in nature, seeks to repeal the existing Extradition Act with a view to aligning extradition arrangements with modern trends. In September 2013 the draft Bill was submitted to [the] Minister [of Justice and Constitutional Development] to obtain his views on the draft Bill before approaching Cabinet for approval to begin the consultation process. The Bill seeks to extend extradition to entities (e.g. international criminal tribunals such as the International Criminal Tribunal of Rwanda, or other similar body). However, it excludes the International Criminal Court, established by the 1998 Rome Statute [[ICC Statute], which is given effect by the Implementation of the Rome Statute of the International Criminal Court Act, 2002 (Act No. 27 of 2002), [and has], among others[,] provisions on surrender tailor made for this Court only. 
South Africa, Initial report to the Human Rights Committee, 16 February 2015, UN Doc. CCPR/C/ZAF/1, submitted 26 November 2014, § 145.
[emphasis in original]