Pretoria - A full bench of the North Gauteng High Court has reserved judgment on the government’s application for leave to appeal against a June 15 order that Sudan’s President Omar al-Bashir be arrested and handed over to the International Criminal Court (ICC).
Judge President Dunstan Mlambo, sitting with two other judges in Pretoria, reserved judgment until a date to be decided.
Bashir, wanted by the ICC on charges of crimes against humanity, was attending an AU heads of States Summit in Sandton when the court ruled that he should not be permitted to leave the country.
The Southern African Litigations Centre went to court on June 14 to ask for the urgent order. The matter was to be heard the following day, and the court issued an interim ruling that Bashir could not leave the country until the hearing had been concluded. By the time the order was granted, however, Bashir had left.
Arguing for leave for the government to appeal against the order, Jeremy Gauntlett, SC, said there was no legal duty for the government to arrest a “serving head of state under the South African law”.
He said the order to arrest Bashir was contrary to the government’s statutory duties, not consistent with the constitution, and inconsistent with Constitutional Court authority.
He said it was possible that “another court may come to a different conclusion” about the obligation to arrest Bashir.
If the judgment remained unchallenged, Gauntlett said, it could have implications for visits by other heads of state for whom there were international arrest warrants. The judgment would also affect “the conduct of (South Africa’s) international relations”.
The judgment had been rendered under urgent circumstances that had prevented a full ventilation, by the parties and the court, of the legal issues involved, Gauntlett said.
“If this is not permitted, the practical legal effect will be that the question will never realistically arise again before a South African court, because no head of state liable for arrest would enter South Africa.”
In securing the order, it had been argued that South Africa was obliged to arrest Bashir because it was a signatory to the ICC’s founding treaty, the Rome Statute.
Pretoria News