Pretoria - The government’s legal obligations under domestic and international law are matters of public interest - both in South Africa and beyond - and the Supreme Court of Appeal (SCA) should thus reconsider the judgment against the government regarding the arrest of Sudanese President Omar al-Bashir.
This is according to the government, which this week filed its application at the high court in Pretoria for leave to appeal against a full bench (three judges) high court decision in which the government was ordered to arrest al-Bashir while he was in the country attending the AU Summit last month.
Three judges - Judge President Dunstan Mlambo, Deputy Judge President Aubrey Ledwaba and Judge Hans Fabricius - issued an urgent order that al-Bashir be arrested immediately and handed over to the International Criminal Court (ICC) to face charges of human rights abuses.
According to an interim order, he was not allowed to leave South Africa pending the outcome of the court proceedings instituted by the Southern African Litigation Centre.
But by the time the judges ordered the arrest of al-Bashir, he was well on his way to Sudan.
The judges found that the government failed to, among others, carry out its duties in terms of the Rome Statute, to which it is a signatory, by not handing over al-Bashir to the ICC, which had earlier issued two warrants for his arrest.
The court also found that contrary to the arguments forwarded by the government, al-Bashir did not enjoy immunity from arrest while attending the AU Summit.
But in its papers asking for leave to appeal, the government said the judges erred in coming to their findings and that the three judges wrongly interpreted the law relating to South Africa’s legal obligations.
It was said that the court erred in concluding that the Diplomatic Immunities and Privileges Act did not afford al-Bashir immunity while attending the summit. The government said the notice in the Government Gazette under this act afforded all delegates to the week-long summit immunity while in the country.
It was said that the Immunities Act expressly prohibited the hosting country from arresting a head of state while attending the summit and that only a sending state (Sudan in this case) could waive that right.
The government also felt aggrieved that the judges deemed it to have violated the interim order in allowing al-Bashir to leave the country before the court had spoken the final word. The government earlier said it had no idea al-Bashir was on the flight which left South Africa long before the final court verdict.
It said the court should have waited for all the facts before it concluded that the government did not adhere to the interim order.
The government said these were all complex issues of national and international importance which warranted further scrutiny. The interpretation and application of the legal instruments of international and domestic law raised important questions and had to be argued further.
The government said seeing that three judges, two of whom included the most senior on the bench, had already presided over the matter, the next logical step was the SCA, with the Constitutional Court ultimately delivering the final word. No date has yet been set when the leave to appeal application would be heard.
Pretoria News