Minister of Justice and Constitutional Development and Others v Southern Africa Litigation Centre and Others

• Jurisdiction: South Africa

Minister of Justice and Constitutional Development and Others v Southern Africa Litigation Centre and Others
2016 (3) SA 317 (SCA)

2016 (3) SA p317

Citation	2016 (3) SA 317 (SCA)
Case No	867/15; [2016] ZASCA 17
Court	Supreme Court of Appeal
Judge	Lewis JA, Majiedt JA, Ponnan JA, Shongwe JA and Wallis JA
Heard	February 12, 2016
Judgment	March 15, 2016
Counsel	JJ Gauntlett SC (with FB Pelser and L Dzai) for the applicants (appellants).; WH Trengove SC (with M du Plessis, I Goodman and H Rajah) for the respondents.; D Unterhalter SC (with C Steinberg, A Coutsoudis and N Muwangua) for the first amicus.; GM Malindi SC (with N Lewis) for the applicants for admission as second and third amici.; J Brickhill for the applicants for admission as fourth and fifth amici.

Flynote : Sleutelwoorde B

International law — International criminal law — International Criminal Court — Arrest warrant — Binding on South African state — Implementation of Rome C Statute of the International Criminal Court Act 27 of 2002, s 4(2) and s 10(9).

International law — International criminal law — Immunity — Head-of-state immunity — International-crimes exception — Impossible to assert such exception at present — But South Africa bound to execute warrants issued D by International Criminal Court — Implementation of Rome Statute of the International Criminal Court Act 27 of 2002, s 4(2) and s 10(9).

International law — Diplomatic immunity — Discretion of minister to grant immunity — Yielding to obligation of South African state to execute arrest warrants issued by International Criminal Court — Diplomatic Immunities E and Privileges Act 27 of 2001, s 4(1)(a); Implementation of Rome Statute of the International Criminal Court Act 27 of 2002, s 4(2) and s 10(9).

Practice — Parties — Amici curiae — Supreme Court of Appeal — Admission and right to make oral submissions — Admission not giving rise to right to make oral submissions, which may be allowed at discretion of court hearing appeal — New contentions required — What constitute — Supreme Court of F Appeal Rules, rule 16.

Headnote : Kopnota

The International Criminal Court (the ICC) was created by the Rome Statute of 1998. South Africa, a founding party to the statute, ratified it in November 2000. It was domesticated into South African law by the Rome Statute of the International Criminal Court Act 27 of 2002 (the Implementation Act). G

2016 (3) SA p318

A The present court pointed out (see [35]) that the principle of complementarity that underpins the Rome Statute makes it clear that the ICC exists to provide a forum for the prosecution of international crimes where national courts are unable or unwilling to do so.

In 2009 and 2010 the ICC issued warrants for the arrest of President Omar al Bashir of Sudan for the international crimes of genocide, war crimes and B crimes against humanity. Some five years later, from 7 to 15 June 2015, Bashir attended the African Union (AU) Summit in Johannesburg. When the South African Government (represented by the various appellants) failed to arrest Bashir, the first respondent (the SALC, a human-rights organisation) obtained an interim order from the Gauteng High Court in Pretoria prohibiting his departure and instructing the government to C enforce the warrants. But Bashir was allowed to leave the country unhindered. The High Court subsequently found the government's conduct to have been unconstitutional.

For its argument that Bashir was immune from arrest the government relied on immunities conferred by the hosting agreement it had concluded with the AU. The government formalised the immunity by ministerial proclamation D — underpinned by a cabinet minute — issued under s 5(3) of the Diplomatic Immunities and Privileges Act 37 of 2001 (the Immunities Act). The proclamation restated the relevant provisions of the hosting agreement. The High Court found that the hosting agreement covered the AU itself and not attending heads of state.

The High Court, citing Bashir's departure and the consequent mootness of any E further litigation, refused the government leave to appeal its order. But the Supreme Court of Appeal overrode the High Court on petition and ordered the application for leave to appeal to be set down for argument. Before the SCA the government introduced a new argument, viz that Bashir's arrest was precluded by customary international law and s 4(1)(a) of the Immunities Act, which provided that a head of state was immune from the jurisdiction F of South African courts and enjoyed privileges conferred by 'the rules of customary international law'. The SALC argued that ss 4(2) and 10(9) of the Implementation Act specifically affirm the obligations of arrest and surrender assumed by South Africa under the Rome Statute. [*] It also argued that customary international law in any event did not confer immunity on heads of state charged before the ICC with international crimes (the international-crimes exception). Various NGOs sought admission to the appeal as amici.

G Majority judgment per Wallis JA (Majiedt JA and Shongwe JA concurring)

The High Court erred in refusing leave to appeal on the basis that there was no live dispute between the parties; the High Court order had a continuing effect because the SALC would seek to enforce it if Bashir ever returned to H South Africa, something the government had to take cognisance of in the conduct of its diplomatic relations (see [19] – [21]). Leave to appeal would be granted in view of the new basis on which the government sought to justify its opposition to the SALC's claim (see [22] – [25]).

2016 (3) SA p319

Rule 16 of the Supreme Court of Appeal Rules, which deals with amici submissions, A makes a distinction between an application for admission and an application to make oral submissions (see [26]). While the former is made to the President of the court, the latter is made to the court hearing the appeal, which would grant it only if it advanced new contentions, ie ones that would materially affect the outcome of the case (see [26] and [29] – [30]). Since the prospective amici in the present case did not raise new contentions, their applications for admission B would be dismissed (see [31] – [39]).

The High Court correctly found that the hosting agreement did not cover heads of state or representatives of states attending AU meetings; hence neither the hosting agreement nor the ministerial proclamation immunised Bashir from arrest (see [40] – [48]). C

South Africa was bound by its obligations under the Rome Statute and the Implementation Act to cooperate with the ICC and to arrest and surrender persons in respect of whom the ICC had issued warrants (see [61]). While it was not possible to hold at this stage of the development of customary international law that there existed an international-crimes exception to head-of-state immunity (see [66] – [84]), the Implementation Act removed all forms of D immunity — including under international law and s 4(1) of the Immunities Act — Bashir would otherwise have enjoyed (see [86] – [103]). So while the Immunities Act continued to govern the question of head-of-state immunity, the Implementation Act excluded such immunity in relation to international crimes and the obligations of South Africa to the ICC (see [102]).

Concurring judgment per Ponnan JA (Lewis JA concurring) E

The clash between s 4(1)(a) of the Immunities Act and s 4(2) of the Implementation Act was more apparent than real. Section 10(9) of the Implementation Act made it clear that the immunity conferred by s 4(1)(a) could be invoked only if was not in conflict with the Implementation Act, thus negating any head-of-state immunity that Bashir might otherwise have enjoyed (see ([123]). F

Appeal dismissed but the High Court's order varied to declare the conduct of the government inconsistent with South Africa's obligations in terms of the Rome Statute and s 10 of the Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002, and unlawful (see [117] and [113]).

Cases Considered

Annotations G

Case law

Southern Africa

Bothma-Batho Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk 2014 (2) SA 494 (SCA) ([2013] ZASCA 176): dictum in para [12] applied

Children's Institute v Presiding Officer, Children's Court, Krugersdorp, and Others H 2013 (2) SA 620 (CC) (2013 (1) BCLR 1; [2012] ZACC 25): compared

CUSA v Tao Ying Metal Industries and Others 2009 (2) SA 204 (CC) (2009 (1) BCLR 1; [2009] 1 BLLR 1; (2008) 29 ILJ 2461; [2008] ZACC 15): dictum in para [68] applied

Durban Corporation and Another v R 1946 NPD 109: referred to

Ex parte Institute for Security Studies: In re S v Basson 2006 (6) SA 195 (CC) (2006 (2) SACR 350; [2005] ZACC 4): compared I

Fischer and Another v Ramahlele and Others 2014 (4) SA 614 (SCA) ([2014] ZASCA 88): dictum in paras [13] – [14] applied

Glenister v President of the Republic of South Africa and Others 2011 (3) SA 347 (CC) (2011 (7) BCLR 651; [2011] ZACC 6): dictum in para [97] applied J

2016 (3) SA p320

Government of the Republic of South Africa and Another v Government of KwaZulu and Another 1983 (1) SA 164 (A): dictum at 200E – F applied A

In re Certain Amicus Curiae Applications: Minister of Health and Others v Treatment Action Campaign and Others 2002 (5) SA 713 (CC) (2002 (10) BCLR 1023; [2002] ZACC 13): dictum in para [5] applied

Janse van Rensburg NO and Another v Minister of Trade and Industry and Another NNO 2001 (1) SA 29 (CC) (2000 (11) BCLR 1235; [2000] ZACC 18): distinguished B

JT Publishing (Pty) Ltd and Another v Minister of Safety and Security and Others 1997 (3) SA 514 (CC) (1996 (12) BCLR 1599; [1996] ZACC 23): distinguished

Kent NO v South African Railways and Another 1946 AD 398: dictum at 405 applied

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