THE government has turned to the Supreme Court of Appeal, asking it to overturn the High Court order that it must arrest Sudanese President Omar al-Bashir, saying the order was a “first in legal history” and that it was wrong in law.
The government is still being excoriated for allowing Mr Bashir, who is wanted by the International Criminal Court for genocide, war crimes and crimes against humanity, to flee SA in June — despite an interim court order that he should not be allowed to leave.
His dramatic escape — which unfolded as the court was hearing argument on the issue — earned the government a stern rebuke by the High Court in Pretoria for an apparent disregard for the rule of law. The High Court later refused to grant leave to appeal against its judgment, so the government has now approached the Supreme Court of Appeal, insisting that the dispute is still relevant — as Mr Bashir may return to SA — and that there was “a very good prospect” that the appeal court would come to a different conclusion.
In an affidavit filed on Thursday, justice director-general Nonkululeko Sindane said the High Court’s order was “contrary to what I am advised is generally considered by experts … to be the correct legal position”. Ms Sindane said the dispute was not abstract, hypothetical or academic — as argued by the Southern African Litigation Centre in the High Court.
The centre said, and the High Court had agreed, that since Mr Bashir had already left SA an appeal was “moot” — there would be no practical effect in deciding it. But Ms Sindane said the court’s declaration that the government had acted unconstitutionally in failing to take steps to arrest Mr Bashir was “a serious adjuration of the government’s conduct”.
“It has led to the attempted impeachment in Parliament of the president,” she said.
The order that Mr Bashir be arrested was open-ended, she said. Given bilateral relations between SA and Sudan and their both being members of the African Union, there was “every likelihood that he would return to SA”, she said.
If he did return, he would have to be arrested in terms of the court order, she said.
Ms Sindane said the High Court had acted “irregularly” because the judges had told counsel in chambers not to argue on whether there were reasonable prospects that the appeal would succeed. The “inference” was that prospects of success would not be a determinant of the outcome, she said.
Moreover, the finding that its interim order had not been complied with and its remarks about the “democratic edifice … crumb(ling) stone-by-stone” were made without giving the government a hearing on whether it had complied with the interim order.
She said the High Court had misconstrued and misinterpreted the applicable legislation.
It was in the interests of justice that SA’s highest courts dealt with this dispute, she said.
Southern African Litigation Centre executive director Kajaal Ramjathan-Keogh said the centre was “fully expecting” the government to appeal and would be opposing it.