NO doubt about it, the government has sustained a serious moral and legal setback with today’s judgment from the Supreme Court of Appeal slamming Pretoria’s failure to arrest and hand over Sudan’s President Al Bashir to the International Criminal Court when he visited this country in June 2015. But there are a number of loose threads left hanging.

First among them, is that Pretoria is highly likely to take the matter to the Constitutional Court, even though it is just as likely to lose there as it always was in Bloemfontein at the appeal court.

Then there is the question of what action will be taken against those who deliberately misled the high court in Pretoria when it was considering the initial application for Al Bashir’s arrest.

In his appeal decision, Judge Malcolm Wallis described the events on the day Al Bashir made his escape at the same time as the high court was being assured that he was still in the country.

On the basis of these reassurances the court ordered that he had to be arrested and detained prior to being handed over to the ICC. No sooner had this order been given however than counsel for the government told the judge that Al Bashir had left the country earlier that morning.

“Simply risible”

Re-considering the high court’s order, Wallis spoke for all his colleagues hearing the appeal when he dismissed as “simply risible” the explanation by the Director General of Home Affairs of how it was possible for Al Bashir to have quit the country “unobserved”: this was because “his passport was not among those shown to officials”, claimed the DG.

Senior government officials “must have been aware” of Al Bashir’s movements and his departure, the appeal judges said, and thus the assurances given to the high court that he was still in the country “were false”.

“There seem to be only two possibilities,” said the appeal court. Either government representatives “set out to mislead the court” and misled their own advocate as well when they gave him legal instructions that Al Bashir was still in South Africa. Or else the government’s legal representative was also involved in misleading the court.

Wallis said either way “it was disgraceful conduct”, and that the matter was no doubt being investigated by the appropriate authorities. This must be a reference to an investigation of the possible role of counsel in misleading the court – extremely serious if proven.


The judges said it was “a matter of pride” to South Africans that theirs was the first African state to sign the Rome Statute that established the International Criminal Court. After signing the statute in 1998, Pretoria ratified it in November 2000 and incorporated it into South Africa law via the Implementation Act of 2002. This law provides the mechanism by which South Africa is to co-operate with the ICC in the arrest and hand over of those wanted for international crimes.

These actions all formed part of the steps South Africa took at the time to return to the democratic world after years of being regarded as a pariah because of apartheid.

Aside from the government’s conduct in the matter, the appeal decision contained another important element that will have lawyers reading it closely in the future: the court explained in some detail the rules of the Supreme Court of Appeal for admitting groups as “friends of the court” – typically these would be groups who, while not involved in the specific case before the court, have some special interest or expertise that might make their submission useful. In this particular matter some of those who applied were not given leave to join the case and the court explained why.

Another question dealt with in some detail was the decision by the high court not to give the government leave to appeal to the SCA against its order because, since Al Bashir had already quit the country, the dispute was “moot” and a further decision would have no practical effect. This was not so, said the appeal judges: because the high court order still stood, Al Bashir continued to be at risk of arrest should he return and the court’s decision would continue to impact in South Africa’s international relations. It was thus a matter in which an appeal should be heard in order to consider whether the initial decision had been correct.

Hosting agreement

Looking at the only justification originally given by the government for not arresting Al Bashir, the appeal judges said the high court had been quite correct in rejecting Pretoria’s argument. The government argued that it was part of a “hosting agreement” when the AU assembly was held in this country, and in terms of this agreement Al Bashir had immunity. Not so, said the appeal judges. The hosting agreement referred only to immunity for members of staff of the commission itself and other representatives of inter-governmental organisations. Member states and their delegates were not included, nor were heads of state. The hosting agreement “did not confer immunity on Al Bashir” and the proclamation of the agreement by the relevant minister “did not serve to confer any immunity on him.” “The fact that the cabinet may have thought that it would is neither here nor there. An erroneous belief cannot transform an absence of immunity into immunity.”

Though this was the sole basis on which the government argued its case at the high court, completely new grounds, based on customary international law, were raised on appeal. Consideration of these arguments took up most of the appeal judgment, even prompting a second judgment by two members of the court who concurred with the outcome, though not on the way it was reached.

Concluding that even on the new basis argued by the government it had been obliged to arrest and detain Al Bashir, the full court pointed out that when South Africa initially accepted the Rome Statute it did so on the basis that not even the usual head of state immunity would present a bar to prosecuting international crimes in South Africa or to cooperation with the ICC in arresting and handing over those charged with international crimes by the ICC.

That South Africa did so was consistent with this country’s commitment to human rights, nationally and internationally, and was “a matter for national pride”. It was also, until this case, the understanding of the government as to how it had to act: on a number of previous occasions when Sudan inquired about whether Al Bashir would be liable to arrest should he come to South Africa – for example to attend the inauguration of President Jacob Zuma – Sudan was informed that an arrest could follow. Similarly, Al Bashir did not attend the funeral of former president Nelson Mandela “because he would have been liable to arrest and surrender to the ICC had he done so.”


It was obvious that, apart from this case, South Africa had always been “meticulous” in complying with its obligations under the Rome Statute in respect of Al Bashir, said the court.

In an interesting paragraph towards the end of the judgment, the court makes the point that no reason was given for South Africa’s change in approach last June, adding that while the departure from this country’s international obligations was “unfortunate”, it was, according to the affidavits by government officials, “only temporary”. Under these circumstances it was “perhaps a pity” that the government chose new grounds to argue the appeal since these (new grounds) could give the impression that “our commitment as a nation to the Rome Statute was in question.”

In the end, the court approved a slightly different wording to the order made by the high court last June, and dismissed the government’s appeal, with costs.

Two “hanging threads” have already been mentioned. There is a third of course, and that is the threat by the government that South Africa will back out of the Rome Statute and no longer support the ICC. Though this threat was nowhere specifically raised during the appeal, it’s a threat alluded to by the court in the paragraph where the court spoke about the impression that South Africa’s commitment to the Rome Statute was “in question”.

That threat might yet materialise, but for now the government has to face the fact that a senior court has ruled it out of line and labelled its behaviour “disgraceful” in a matter of such grave international human rights importance.

And ironically enough, the appeal court judgment, highlighting South Africa’s failure to carry out its duties under the Rome Statute, came on the same day as another African country, Namibia, outlined its own intention to quit the ICC, saying the court’s activities “were no longer a priority” for Namibia.

This originally appeared on the Rand Daily Mail web site on March 16

Judgment-The Minister of Justice and Constitutional Development v The Southern African Litigation Centre (2)