Pretoria - The Supreme Court of Appeal will on Friday hear the government’s petition for leave to appeal against an order that it was obliged to arrest Sudanese President Omar al-Bashir while he was in South Africa last year.
A full bench (three judges) earlier ruled that the authorities were obliged, under South African law, to arrest and surrender (to the ICC) al-Bashir while he was here.
The controversial handling of the Al-Bashir matter came under the spotlight last June, when the Sudanese head of state came to South Africa to attend the AU summit. The Southern Litigation Centre (SALC), upon hearing that he was not immediately arrested, turned to the high court in Pretoria on an urgent basis.
The SALC wanted the government to “honour its domestic an international law commitments” by implementing an arrest warrant against him, issued by the International Criminal Court (ICC), on charges of war crimes, crimes against humanity and genocide.
Three judges, including Judge President Dunstan Mlambo, issued an interim urgent order that Al-Bashir was to be immediately arrested and handed over to the ICC. In terms to the interim order, he was not to leave South Africa until the matter was finalised.
But by the time the parties were back in court, arguing the matter further, Al-Bashir was on his way home. It was claimed the government defied the court order and allowed him to leave.
The judges found the government had failed to carry out its duties in terms of the Rome Statute, to which it is a signatory.
The court also found that, contrary to the arguments forwarded by government, Al-Bashir did not enjoy immunity from arrest while attending the AU summit.
The government, however, said the court erred in coming to this conclusion.
It was said that the three judges wrongly interpreted the law relating to South Africa’s legal obligations.
The government was refused leave to appeal against the court’s findings and is now turning to the SCA.
Advocate Jeremy Gauntlett SC, who fought for president Zuma this week in the Constitutional Court, will Friday take on the government’s plight in the SCA.
He will once again face advocate Wim Trengove, who this week fought on the side of the EFF in the Constitutional Court Nkandla battle.
He represents the SALC.
Gauntlet will argue there had been no development of international law that abolished personal immunity of a serving head of state.
“It continues to operate even in the context of international crimes. South African national legislation gives effect to this immunity. Neither the Rome Statute nor domestic legislation implementing it in South Africa alters this legal position.”
Gauntlet said South Africa was under a legal duty to respect the personal immunity of a serving head of a foreign state.
According to him, South Africa was not under a legal duty to comply with the ICC’s request for co-operation in arresting and delivering al-Bashir.
Pretoria News