Democratic Alliance v Minister of International Relations and Cooperation and Others

• Jurisdiction: South Africa
• Judge: Mojapelo DJP, Makgoka J and Mothle J
• Judgment Date: 22 February 2017
• Citation: 2017 (3) SA 212 (GP)
• Docket Number: 83145/2016
• Counsel: S Budlender (with C McConnachie and L Zikalala) for the applicant.JJ Gauntlett SC (with F Pelser, L Dzai and A Msimang) for the first to third respondents. M du Plessis (with A Coutsoudis) for the sixth respondent. T Ngcukaitobi (with M Bishop and MN Mothapo) for the ninth respondent. D Unterhalter SC (with C Steinberg and K Premhid) for the tenth respondent. A Katz SC (with D Simonsz, N Muvangua and NM Krige) for the intervening party.
• Court: Gauteng Division, Pretoria

Mojapelo DJP, Makgoka J and Mothle J (sitting as a full bench and court of first instance):

[1] This case turns on the separation of powers between the national executive and Parliament in international relations and treaty-making. It calls for a proper interpretation of s 231 of the Constitution of the Republic of South Africa, 1996 (the Constitution). The primary question F is whether the national executive's power to conclude international treaties also includes the power to give notice of withdrawal from international treaties without parliamentary approval. Related to that is an ancillary question whether it is constitutionally permissible for the national executive to deliver a notice of withdrawal from an international treaty without first repealing the domestic law giving effect to such treaty. G At the heart of the dispute is the withdrawal of South Africa from the Rome Statute of the International Criminal Court (the ICC).

[2] The litigation history over the ICC has its genesis in the refusal by the South African Government to arrest and surrender to the ICC Omar Hassan Ahmad al-Bashir (President al-Bashir), the President of Sudan, H when he visited the country in June 2015 for an African Union (AU) summit. President al-Bashir stands accused of serious international crimes, and two warrants have been issued by the pre-trials chamber of the ICC for his arrest. They all are for war crimes, crimes against humanity and genocide, all related to events in the Darfur region of Sudan. The warrants have been forwarded to member states, including I South Africa, requesting them to cooperate under the Rome Statute and cause President al-Bashir to be arrested and surrendered to the ICC.

[3] Government's failure in this regard led to an urgent application in this court by the South African Litigation Centre (SALC), in which it J sought orders declaring the government's failure to be in breach of the

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Constitution, and to compel the government to cause A President al-Bashir to be arrested and surrendered to the ICC. Government's stance was that President al-Bashir enjoyed immunity in terms of international customary law. A full bench of this court eventually granted an order declaring the government's failure to have President al-Bashir arrested and surrendered to the ICC to be inconsistent with the Constitution and B unlawful. [1] The appeal by the government to the Supreme Court of Appeal was unsuccessful, [2] after which an application for leave to appeal was made to the Constitutional Court. [3] That application, which was scheduled to be heard by the Constitutional Court on 22 November 2016, has been withdrawn by government.

Background facts C

[4] On 19 October 2016 the national executive took a decision to withdraw from the Rome Statute. Pursuant thereto and on the same day, the Minister of International Relations signed a notice of withdrawal to give effect to that decision and deposited it with the Secretary-General of the United Nations. This triggered the process for South Africa's D withdrawal. In terms of article 127(1) of the Rome Statute, the withdrawal of a party state from the Rome Statute takes effect 12 months after the depositing of a notice to that effect. Thus, South Africa would cease to be a state party to the statute in October 2017. Attached to the explanatory statement is a lengthy explanation in which the reasons for the withdrawal are set out. In part, the statement reads: E

'In 2015, South Africa found itself in the unenviable position where it was faced with conflicting international law obligations which had to be interpreted within the realm of hard diplomatic realities and overlapping mandates when South Africa hosted the 30th Ordinary Session of F the Permanent Representatives Committee, the 27th Ordinary Session of the Executive Council and the 25th Ordinary Session of the Assembly of the African Union (the AU Summit), from 7 to 15 June 2015. South Africa was faced with the conflicting obligation to arrest President Al Bashir under the Rome Statute, the obligation to the AU to grant immunity in terms of the Host Agreement, and the General Convention on the Privileges and Immunities of the Organization of G African Unity of 1965 as well as the obligation under customary international law which recognises the immunity of sitting heads of state.

This Act and the Rome Statute of the International Criminal Court compel South Africa to arrest persons who may enjoy diplomatic H immunity under customary international law but who are wanted by the International Criminal Court for genocide, crimes against humanity

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A and war crimes and to surrender such persons to the International Criminal Court. South Africa has to do so, even under circumstances where we are actively involved in promoting peace, stability and dialogue in those countries.'

[5] On 20 and 21 October 2016, respectively, the Minister of Justice B wrote identical letters to both the Speaker of the National Assembly (the fourth respondent) and the Chairperson of the National Council of Provinces (the fifth respondent), advising them of cabinet's decision to withdraw from the Rome Statute, and the reasons therefor. In those letters the Minister also stated his intention to table in Parliament a bill C repealing the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (the Implementation Act), which is the domestic law giving effect to the Rome Statute in South Africa.

[6] On 24 October 2016 the applicant launched an application for direct D access to the Constitutional Court seeking to challenge the executive's decisions referred to above. It also launched a substantively identical application in this court, in the alternative, in the event of the Constitutional Court not granting direct access to it. On 11 November 2016 the Constitutional Court refused the application for direct access on the basis that it was not in the interests of justice to hear the matter E at that stage. As a result the applicant fell back onto its application in this court. It seeks orders declaring unconstitutional and invalid: the notice of withdrawal; and the underlying cabinet decision to withdraw from the Rome Statute and to deliver the notice to the Secretary-General of the United Nations, initiating the withdrawal. Consequentially, the applicant F seeks an order that the first, second and third respondents be directed to revoke the notice of withdrawal and to take reasonable steps to terminate the process of withdrawal under article 127(1) of the Rome Statute.

The parties G

[7] The applicant, the Democratic Alliance (the DA), is a political party registered in terms of s 15 of the Electoral Commission Act 51 of 1996, and the largest minority party in Parliament. It is supported in the relief it seeks by four non-governmental civil-rights organisations, namely: the H applicant to intervene, the Council for the Advancement of the South African Constitution (CASAC); the sixth respondent, the South African Litigation Centre (SALC); the joint ninth respondent, the Centre for Human Rights (CHR); [4] and the tenth respondent, the Helen Suzman Foundation (HSF) (the supporting respondents). The seventh and eighth I respondents, Professors John Dugard and Guenael Mettraux, and Amnesty International Ltd, have each filed a notice to abide, and consequently take no part in these proceedings.

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[8] The first respondent, the Minister of International Relations and A Cooperation (the Minister of International Relations), is the member of the national executive responsible for signing and delivering the impugned notice. The second respondent, the Minister of Justice and Correctional Services (the Minister of Justice), is the member of the national executive responsible for the administration of the national B legislation that domesticated the Rome Statute. The third respondent, the President of the Republic of South Africa (the President), is the head of the national executive, which, in terms of s 231(1) of the Constitution, is responsible for negotiating and signing all international agreements. For the sake of convenience, we shall refer to these respondents collectively as 'government respondents'. Where the context dictates, we C shall refer to the individual government respondents as designated above. The government respondents oppose the relief sought by the DA. The fourth and fifth respondents, respectively the Speaker of the National Assembly and the Chairperson of the National Council of Provinces, have filed notices to abide and are not part of these D proceedings.

The Rome Statute: adoption, signature, ratification and domestication

[9] The Rome Statute was adopted and signed on 17 July 1998 by a E majority of states attending the Rome Conference, including South Africa. This paved the way for the establishment of the ICC. South Africa ratified the Rome Statute on 27 November 2000. It was the obligation of state parties, which signed and ratified the Rome Statute, to domesticate the provisions of the statute into their national law to ensure that F domestic law was compatible with the statute. South Africa accordingly passed the Implementation Act on 16 August 2002. The preamble of the Act reads:

'(T)he Republic of South Africa is committed to — bringing persons who commit such atrocities to justice, either in a court of law of the Republic G in terms of its domestic laws where possible, pursuant to its international obligation to do so when the Republic became party to the Rome Statute of the International Criminal Court, or in the event of the national prosecuting authority of the Republic declining or being unable to do so, in line with the principle of complementarity as contemplated in the Statute, in the International...