South Africa: Case challenging South Africa’s withdrawal from the ICC without parliamentary approval

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Salc : Staff Writer

On 21 October 2016 the South African government announced that it had deposited its instrument of withdrawal from the Rome Statute of the International Criminal Court (ICC) with the United Nations Secretary General. This was done without the necessary parliamentary procedures and is thus the subject of a legal challenge questioning the procedural and substantive aspects of withdrawal.

The applicants in the matter cited all parties to the case of Minister of Justice and Others v the Southern Africa Litigation Centre, (the Bashir case) as such, SALC is a party to the proceedings and is seeking to ensure that the civil society perspective is before the Court and has been acknowledged as a “Supporting Respondent”.

SALC submitted that South Africa’s instrument of withdrawal was unconstitutional and that it was predicated on a number of material errors of law making it irrational or otherwise contrary to the principle of legality.

The applicants approached the Constitutional Court directly, serving their papers on 23 November 2016, and filing in the High Court in the event that the Constitutional Court declined to hear the matter. The Constitutional Court directed that it would not be in the interests of justice to hear the matter at this stage and thus the matter will be heard in the North Gauteng High Court on 5 and 6 December 2016.

On 22 February 2017, the North Gauteng High Court delivered its judgment. The court made the following significant findings:

The notice of withdrawal from the Rome Statute without prior parliamentary approval is unconstitutional and invalid;
The cabinet decision to deliver the notice of withdrawal to the UN Secretary General without prior parliamentary approval is unconstitutional and invalid;
The President together with the Ministers of Justice and Correctional Services and International Relations and Cooperation are ordered to revoke the notice of withdrawal.

Court Papers