14 August 2015
A full bench of the North Gauteng High Court in Pretoria has reserved judgment in government’s application for leave to appeal the high court’s ruling that it had acted unconstitutionally by not arresting Sudanese president Omar al-Bashir when he visited South Africa in June.
Deputy Judge President Aubrey Ledwaba, Judge Dunstan Mlambo and Judge Hans Fabricius on June 15 ordered Bashir’s arrest pending a formal request by the International Criminal Court (ICC) for his rendition to face charges of war crimes, crimes against humanity and genocide.
When it became clear that Bashir had left the country, they ordered the minister in the office of the presidency and the minister of state security to file an affidavit explaining the circumstances under which he left.
In their reasons for the ruling, the Judges launched a blistering attack on government for ignoring court orders, which it said would cause our democracy to crumble stone by stone until it collapsed and chaos ensued.
Home Affairs Director General Mkuseli Apleni thereafter filed an explanatory affidavit in which he pointed the finger at Bashir’s representatives for not handing the Sudanese president’s passport to South African immigration officials at the Waterkloof Air Force Base.
Counsel for the government, Jeremy Gauntlett SC, yesterday argued that the matter should be referred to the Supreme Court of Appeal as it was of national and international legal significance. He said it involved the international criminal accountability of a sitting head of state, his susceptibility to arrest in a foreign state and South Africa’s legal duties under national and international law.
Gauntlett argued that the court had handed down a final order imposing a duty on the South African government to arrest a sitting head of state and was therefore not restricted to Bashir.
He said there was a possibility that Bashir could again enter South Africa and the order could also affect other heads of state visiting the country who found themselves in a similar position.
Government maintains Bashir’s immunity precluded his arrest and that the orders were contrary to government’s statutory duties, not consistent with the Constitution and inconsistent with constitutional authority.
Counsel for the Southern Africa Litigation Centre, Wim Trengove SC, argued that the matter became moot the minute Bashir left the country. Courts were not there to settle academic issues, he added.
He argued that government in any event had no chance of success on appeal as the International Criminal Court Act unequivocally placed a duty on the South African government to give effect to an ICC warrant.