Minister of Justice and Constitutional Development and Others v Southern African Litigation Centre and Others (867/15) [2016] ZASCA 17; 2016 (4) BCLR 487 (SCA); [2016] 2 All SA 365 (SCA); 2016 (3) SA 317 (SCA) (15 March 2016)

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[2016] ZASCA 17
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Minister of Justice and Constitutional Development and Others v Southern African Litigation Centre and Others (867/15) [2016] ZASCA 17; 2016 (4) BCLR 487 (SCA); [2016] 2 All SA 365 (SCA); 2016 (3) SA 317 (SCA) (15 March 2016)

Links to summary

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: 867/15
In the matter between:
THE MINISTER OF JUSTICE
AND
CONSTITUTIONAL
DEVELOPMENT

First Applicant
THE DIRECTOR-GENERAL OF
JUSTICE
AND CONSTITUTIONAL
DEVELOPMENT

Second Applicant
THE MINISTER OF
POLICE

Third Applicant
THE COMMISSIONER OF
POLICE

Fourth Applicant
THE MINISTER OF
INTERNATIONAL
RELATIONS AND
COOPERATION

Fifth Applicant
THE DIRECTOR-GENERAL OF
INTERNATIONAL
RELATIONS AND
COOPERATION

Sixth Applicant
THE MINISTER OF HOME
AFFAIRS

Seventh Applicant
THE DIRECTOR-GENERAL
HOME AFFAIRS

Eighth Applicant
THE NATIONAL
COMMISSIONER OF THE
SOUTH AFRICAN POLICE
SERVICE

Ninth Applicant
THE NATIONAL DIRECTOR OF
PUBLIC
PROSECUTIONS

Tenth Applicant
THE HEAD OF THE
DIRECTORATE FOR
PRIORITY CRIMES
INVESTIGATION

Eleventh Applicant
THE DIRECTOR OF THE
PRIORITY CRIMES
LITIGATION
UNIT

Twelfth Applicant
and
THE SOUTHERN AFRICA
LITIGATION
CENTRE

Respondent
HELEN SUZMAN
FOUNDATION

Amicus curiae
THE AFRICAN CENTRE FOR
JUSTICE
AND PEACE STUDIES

Applicant for admission as
second amicus curiae
THE INTERNATIONAL
REFUGEE RIGHTS
INITIATIVE

Applicant for admission as
third amicus curiae
PEACE AND JUSTICE
INITIATIVE

Applicant for admission as
fourth amicus curiae
CENTRE FOR HUMAN
RIGHTS

Applicant for admission as
fifth amicus curiae
Neutral citation:
The Minister of Justice and
Constitutional Development v The Southern African Litigation Centre
(867/15)
[2016] ZASCA 17
(15 March
2016)
Coram:
LEWIS, PONNAN, SHONGWE, MAJIEDT and WALLIS JJA
Heard:
12 February 2016
Delivered:
15 March 2016
Summary:
International law - International
Criminal Court (ICC) – South Africa’s obligations to
arrest and surrender person against
whom the ICC has issued an arrest
warrant – Implementation of the Rome Statute of the
International Criminal Court Act 27
of 2002 – provisions of
sections 4(2) and 10(9) – whether head of state enjoys immunity
from arrest in terms of customary
international law –
provisions of section 4(1) of the Diplomatic Immunities and
Privileges Act 37 of 2001 (DIPA) –
whether immunity exists by
virtue of hosting agreement concluded with African Union and
ministerial proclamation under section
5(3) of  DIPA.
Practice and
procedure – application for admission as amicus curiae –
rule 16 of rules of Supreme Court of Appeal –
process to be
followed – admission as amicus does not give rise to a right to
make oral submissions – whether entitled
to do so determined by
Court hearing the appeal – party may only be admitted as amicus
if it has new contentions to advance
– what constitutes new
contentions.
ORDER
On appeal from:
Gauteng Division of the High Court,
Pretoria (Mlambo JP, with Ledwaba DJP and Fabricius J concurring,
sitting as court of first
instance): judgment reported as
Southern
Africa Litigation Centre v Minister of Justice and Constitutional
Development & others
2015 (5) SA 1
(GP).
1
The application for leave to appeal is
granted.
2
The applicants are to pay the costs of that
application such costs to include those consequent upon the
employment of two counsel.
3
The applications by the African Centre for
Justice and Peace Studies, the International Refugee Rights
Initiative, the Peace and
Justice Initiative and the Centre for Human
Rights for admission as amici curiae are dismissed with no order for
costs.
4
The order of the High Court is varied to
read as follows:
‘
1
The conduct of the Respondents in failing to take steps to arrest and
detain, for surrender to the
International Criminal Court, the
President of Sudan, Omar Hassan Ahmad Al Bashir, after his arrival in
South Africa on 13 June
2015 to attend the 25
th
Assembly of the African Union, was inconsistent with South Africa’s
obligations in terms of the Rome Statute and section
10 of the
Implementation of the Rome Statute of the International Criminal
Court Act 27 of 2002, and unlawful.
2
The applicant is entitled to the costs of the application on a pro
bono basis.’
5
The appeal is otherwise dismissed.
6
The applicants are to pay the respondent’s
costs of appeal and the costs of the Helen Suzman Foundation,
including the costs
of its application for admission as an amicus,
such costs to include in both instances the costs consequent upon the
employment
of two counsel.
JUDGMENT
Wallis JA (Majiedt
and Shongwe JJA concurring; Lewis JA and Ponnan JA concurring for
separate reasons)
Introduction
[1]
The International Criminal Court (ICC) was
established by the Rome Statute of the International Criminal Court
(the Rome Statute)
to exercise jurisdiction over the most serious
crimes of concern to the international community as a whole. Article
V identifies
them as genocide, crimes against humanity and war crimes
– collectively international crimes – and defines them in
Articles VI, VII and VIII respectively. Article V also foreshadows
the crime of aggression, which remains to be defined. The Rome

Statute affirms that these crimes must not go unpunished and that
their effective prosecution must be ensured by taking measures
at the
national level and by enhancing international co-operation.
[1]
In addition to the jurisdiction of national courts to prosecute these
crimes the Rome Statute confers jurisdiction on the ICC to
try such
crimes and convict and sentence those who commit such crimes. It is a
matter of pride to citizens of this country that
South Africa was the
first African state to sign the Rome Statute. It did this on 17 July
1998 and ratified it on 27 November 2000.
It incorporated it into the
domestic law of South Africa in terms of s 231(4) of the
Constitution by enacting the Implementation
of the Rome Statute of
the International Criminal Court Act 27 of 2002 (the Implementation
Act). The Rome Statute is annexed to
the Implementation Act as a
matter of information.
[2]
Chapter 4 of the Implementation Act
provides the mechanism whereby South Africa co-operates with the ICC
in regard to the arrest
and surrender of persons accused of
international crimes. The failure by the applicants, to whom I will,
in accordance with the
terminology of their counsel, refer
collectively as the Government, to pursue those mechanisms to arrest
the president of Sudan,
Omar Hassan Ahmad Al Bashir (President Al
Bashir), when he was in Johannesburg on 14 and 15 June 2015 to attend
the 25
th
ordinary session of the Assembly of the Africa Union (AU), gave rise
to the present litigation.
[3]
President Al Bashir is a controversial
figure as a result of the actions of his government and their
supporters, such as the Janjaweed
Militia, principally in Darfur, but
also elsewhere in Sudan. On 31 March 2005 the Security Council of the
United Nations adopted
Resolution 1593 (2005). It noted the report of
the International Commission of Inquiry on violations of
international humanitarian
law and human rights law in Darfur, and
decided to refer the situation in Darfur since 1 July 2002
to the Prosecutor
of the ICC. As a result of the investigations by
the ICC, President Al Bashir stands accused of serious international
crimes. The
Pre-Trial Chamber of the ICC has issued two warrants for
his arrest. The first warrant was issued on 4 March 2009 and related
to
charges of war crimes and crimes against humanity. The second
warrant was issued on 12 July 2010 and related to charges of
genocide.
The warrants have been forwarded to all countries that are
parties to the Rome Statute, including South Africa, with a request
that they co-operate under the Rome Statute and cause President Al
Bashir to be arrested and surrendered to the ICC. Sudan is not
a
party to the Rome Statute.
[4]
When President Al Bashir arrived in South
Africa to attend the AU assembly in June 2015 the Government took no
steps to arrest him.
Indeed it adopted, and continues to adopt, the
stance that it was obliged not to do so as President Al Bashir
enjoyed immunity
from such arrest. I will revert to the grounds for
it taking this stance in due course. Its failure to do so resulted in
the respondent,
the South African Litigation Centre (SALC), bringing
an urgent application on Sunday 14 June 2015, in the Gauteng Division
of the
High Court, Pretoria (to which I shall refer as the High
Court), seeking orders declaring the failure to take steps to arrest
President
Al Bashir to be in breach of the Constitution and to compel
the Government to cause President Al Bashir to be arrested and
surrendered
to the ICC to stand trial pursuant to the two warrants.
[5]
The Government opposed the urgent
application and sought and obtained a postponement until 11.30 am
on Monday, 15 June 2015
to enable affidavits to be prepared. But
there was an obvious concern that President Al Bashir might leave the
country in the interim
in order to escape arrest. Accordingly, in
granting the postponement, the High Court made the following order:
‘
1.
President Omar Al Bashir of Sudan is prohibited from leaving the
Republic of South
Africa until a final order is made in this
application, and the respondents are directed to take all necessary
steps to prevent
him from doing so;
2.
The eighth respondent, the Director-General of Home Affairs is
ordered:
2.1
to effect service of this order on the official in charge of each and
every point of entry into,
and exit from, the Republic; and
2.2
once he has done so to provide the applicant with proof of such
service, identifying the
name of the person on whom the order was
served at each point of entry and exit.’
[6]
At the hearing the following day before a
specially constituted full court of three judges presided over by
Judge President Mlambo,
it stood down further because the affidavits
were not yet ready. The hearing commenced at about 1.00 pm and the
Court sought the
assurance from counsel then leading for the
Government, Mr W Mokhari SC, that President Al Bashir was still in
the country. He
informed the Court that according to his instructions
President Al Bashir was still in the country and this was repeated
during
the course of the argument. At about 3.00pm the Court made the
following order:
‘
1.
That the conduct of the Respondents to the extent that they have
failed to take steps
to arrest and/or detain the President of the
Republic of Sudan Omar Hassan Ahmad Al Bashir (President Bashir), is
inconsistent
with the Constitution of the Republic of South Africa,
1996, and invalid;
2.
That the respondents are forthwith compelled to take all reasonable
steps to
prepare to arrest President Bashir without a warrant in
terms of section 40(1)(k) of the
Criminal Procedure Act 51 of 1977
and detain him, pending a formal request for his surrender from the
International Criminal Court;
3.
That the applicant is entitled to the cost of the application on a
pro-bono basis.’
[7]
Immediately after this order was made
counsel for the Government told the Court that President Al Bashir
had left the country earlier
that day. According to an affidavit
later filed by the Director-General: Home Affairs, the eighth
applicant, he appears to have
left on a flight from Waterkloof Air
Base at about 11.30 am that morning. The affidavit failed to explain
how a head of state,
using a military air base reserved for the use
of dignitaries, could possibly have left the country unobserved. The
Director-General
said that President Al Bashir’s passport was
not among those shown to officials of his department, but as an
explanation
that is simply risible. Senior officials representing
Government must have been aware of President Al Bashir’s
movements
and his departure, the possibility of which had been mooted
in the press. In those circumstances the assurances that he was still

in the country given to the Court at the commencement and during the
course of argument were false. There seem to be only two
possibilities. Either the representatives of Government set out to
mislead the Court and misled counsel in giving instructions,
or the
representatives and counsel misled the Court. Whichever is the true
explanation, a matter no doubt being investigated by
the appropriate
authorities, it was disgraceful conduct.
[8]
Largely because of President Al Bashir’s
departure the High Court refused leave to appeal, saying that the
litigation had
become moot. On petition to this Court it ordered that
the application for leave to appeal be set down for argument in terms
of
the provisions of
s 17(2)
(d)
of
the
Superior Courts Act 10 of 2013
. The President of this Court
directed that it be set down as an urgent matter before the
commencement of the Court’s term.
The parties were directed to
deliver a full record and to be prepared to address full argument to
us on the merits of the case.
It is on that basis that the case is
before us.
Litigation history
[9]
The foundation for SALC’s argument
before the High Court was the obligations undertaken by South Africa
in terms of the Rome
Statute and the Implementation Act. It contended
that, by virtue of these, South Africa was obliged to give effect to
the request
of the ICC to enforce the two warrants for President Al
Bashir’s arrest and surrender to the ICC for prosecution in
respect
of the charges of war crimes, genocide and crimes against
humanity. Perhaps anticipating resistance by the Government, it
annexed
to its founding affidavit a judgment delivered by the
Pre-Trial Chamber of the ICC on 13 June 2015 declaring that South
Africa
was obliged to arrest and surrender President Al Bashir.
[2]
[10]
The Government did not make any attempt to
challenge these propositions. Instead it founded its defence to the
application on certain
special arrangements that it had made with the
AU for the holding of the Assembly in Johannesburg. These were
explained in detail
in affidavits by Ms Sindane, the second applicant
and the Director-General of Justice and Constitutional Development,
and Dr Lubisi,
the Director-General of the Presidency and the
Secretary of Cabinet.
[11]
Ms Sindane said that after South Africa
agreed to host the AU Summit in June 2015 it entered into an
agreement (the hosting agreement)
with the Commission of the AU
relating to the material and technical organisation of the various
meetings that were to take place
at the Summit including the 25
th
Assembly of the AU. Based on this agreement she said that President
Al Bashir had been invited to attend by the AU and not by the
South
African Government. She then referred to Article VIII of the hosting
agreement, which was headed ‘Privileges and Immunities’,

and read:
‘
The
Government shall afford the members of the Commission and Staff
Members, delegates and other representatives of Inter-Governmental

Organisations attending the Meetings the privileges and immunities
set forth in Sections C and D, Article V and VI of the General

Convention on the Privileges and Immunities of the OAU.’
[12]
On 5 June 2015, and pursuant to s 5(3)
of the Diplomatic Immunities and Privileges Act 37 of 2001 (DIPA),
the Minister of International
Relations and Cooperation, the fifth
applicant, published GN 470 in the Government Gazette
[3]
recognising the hosting agreement for the purposes of granting the
immunities and privileges as provided for in Article VIII, which
was
annexed to the notice. Dr Lubisi testified that the matter was
discussed at a Cabinet meeting where it was decided, after seeking

the advice of the Chief State Law Adviser, that ‘the South
African government as the hosting country is first and foremost

obliged to uphold and protect the inviolability of President Bashir
in accordance with the AU terms and
conditions
’.
[4]
He added that ‘Cabinet collectively appreciated and
acknowledged that the aforesaid decision can only apply for the
duration
of the AU Summit.’
[13]
On this basis, and this basis alone, Ms
Sindane claimed that the immunities and privileges referred to in
Article VIII of the hosting
agreement prevented the Government from
arresting President Al Bashir ‘during the duration of the
Summit and an additional
two days after the conclusion of the
Summit’. The application was argued on this basis and the High
Court quite correctly
summarised the issue before it as being
‘whether a Cabinet resolution coupled with a Ministerial Notice
are capable of suspending
this country’s duty to arrest a head
of state against whom the International Criminal Court (ICC) has
issued arrest warrants
for war crimes, crimes against humanity and
genocide’.
[14]
With the advent of new counsel, led by Mr J
J Gauntlett SC, an entirely different argument emerged in the
application for leave
to appeal to this Court. It was now based upon
what were said to be the provisions of customary international law
and the provisions
of s 4(1)
(a)
of DIPA, which reads:
‘
(1)  A
head of state is immune from the criminal and civil jurisdiction of
the Courts of the Republic, and enjoys such
privileges as—
(a)
heads of state enjoy in accordance
with the rules of customary international law …’
[15]
The previous argument about the provisions
of the hosting agreement and the ministerial notice under s 5(3)
of DIPA was relegated
to a backseat. Indeed it was not pursued in
that form. Instead it was said that as the ministerial notice had not
been set aside
on application to a competent court it continued to be
effective to confer immunity on President Al Bashir, even if
misconceived.
[5]
[16]
This change of tack by the Government
effectively challenged the foundation of SALC’s claim that the
Government was under
an obligation, by virtue of its accession to the
Rome Statute and the enactment of the Implementation Act, to arrest
President
Al Bashir and surrender him to the ICC. The Government
contended that the general immunity that a head of state enjoys under
customary
international law and s 4(1) of DIPA qualified the
obligation of South Africa, that would otherwise exist as a state
party
to the Rome Statute, to arrest and surrender a head of state
for whom the ICC has issued an arrest warrant in respect of the
commission
of international crimes. The response by SALC was two
pronged. It said that the provisions of ss 4(2) and 10(9) of the
Implementation
Act dealt specifically with these issues and affirmed
the obligations of arrest and surrender assumed by South Africa under
the
Rome Statute. That alone would be decisive, as Mr Trengove SC
emphasised in oral argument, but, if not, SALC joined issue with the

Government on whether the rules of customary international law relied
on by the Government in support of the claim to immunity
afforded
immunity to a head of state charged with international crimes before
the ICC.
[17]
Five parties applied to be admitted as
amici curiae and permitted to present written and oral submissions to
the Court. One, the
Helen Suzman Foundation (the Foundation), was
granted such leave in advance of the hearing. The applications by the
other four
[6]
were not submitted timeously as required by rule 16 of the rules of
this Court. Nor were they dealt with by the President or Acting

President as contemplated by the same rule. As this created
uncertainty, the presiding judge, in consultation with the remaining

members of the Court, permitted them to deliver written argument and
to make oral submissions at the hearing encompassing both
whether
they should be admitted as amici and the merits. An application by
two of them, the African Centre for Justice and Peace
Studies and the
International Refugee Rights Initiative, to submit extensive evidence
of what they alleged were atrocities still
being committed by and at
the behest of President Al Bashir, was however dismissed.
[7]
It is not and never has been a function of this litigation to
determine whether the allegations made against President Al Bashir

are well-founded and, even if admissible, evidence concerning his
alleged conduct would not assist the Court to resolve the legal

issues that confront it.
The issues
[18]
The following issues fall to be determined:
(a)
Did the departure of President Al
Bashir render the issues moot?
(b)
Should leave to appeal be granted?
(c)
Should the four amici other than the
Foundation, or any of them, be given leave to intervene as amici?
(d)
Did Article VIII of the hosting agreement,
together with the ministerial proclamation, provide President Al
Bashir with such immunity,
at least for so long as the proclamation
was not set aside?
(e)
If not, was President Al Bashir entitled to
immunity from arrest and surrender in terms of the arrest warrants
issued by the ICC
by virtue of customary international law and s 4(1)
of DIPA?
(f)
If President Al Bashir would ordinarily
have been entitled to such immunity did the provisions of the
Implementation Act remove
that immunity?
(g)
If not, have Security Council
Resolution 1593 (2005) and the Genocide Convention (1948) removed his
immunity?
(h)
If the appeal does not succeed, should the
order stand or should it be varied in certain respects?
(i)
What orders should be made in respect of
costs?
Is the appeal moot?
[19]
The High Court based its refusal of leave
to appeal on s 16(2)
(a)
(i)
of the Superior Courts Act 10 of 2013 (the
Superior Courts Act),
which
provides that when at the hearing of an appeal the issues are
of such a nature that the decision sought will have no practical
effect or result, the court may dismiss the appeal on that ground
alone. The High Court reasoned that because President Al Bashir
had
left the country the case no longer presented a live controversy. It
cited
Janse van Rensburg NO v Minister
of Trade and Industry & another NNO
[8]
in support of that proposition. But that case and others like it
[9]
dealt with situations where the legislation, the constitutional
validity of which was the subject of the litigation, had been
repealed or replaced by different legislation. That is very different
from the present case. Here a declaration had been made that
the
Government’s conduct breached the Constitution and the
legislation in point is very much in force. The central issue
is what
effect it has on the important question whether South Africa is
obliged to arrest and surrender to the ICC the head of
state of a
foreign nation, who has been charged with international crimes before
the ICC.
[20]
It is correct that no present effect can be
given to the order that the Government take steps to prepare to
arrest President Al
Bashir, because he is not in South Africa. But
the order remains in existence and SALC indicated that any attempt by
President
Al Bashir to return to this country would prompt it to seek
its enforcement. As such the order had a continuing effect that would

have to be taken into account by the Government in the future conduct
of its diplomatic relations. This was well illustrated by
certain
newspaper reports that were annexed to the opposing affidavit in the
application for leave to appeal. These indicated that
the South
African government had wanted to invite President Al Bashir to a
Forum on China-Africa Co-operation to be held in this
country in
December 2015, but in view of the High Court’s decision had
suggested to Sudan that it send someone else to represent
it. Any
invitation to host future gatherings of AU heads of state, for
example, would have to bear the judgment of the High Court
in mind
and could preclude this country from extending such an invitation.
[21]
In those circumstances the High Court erred
in holding that there had ceased to be a live and justiciable
controversy between the
parties.
Leave to appeal
[22]
Apart from its finding that the appeal had
become moot the High Court also referred to
s 17(1)
(a)
(i)
of the
Superior Courts Act and
held that an appeal had no reasonable
prospect of success. But in reaching that conclusion it did not
consider the new basis upon
which the Government sought to justify
its opposition to SALC’s claim. So we do not have the benefit
of the High Court’s
view in regard to those contentions.
[23]
After expressing its conclusion on
prospects of success the High Court also said that it had no
discretion once it reached that
conclusion to grant leave to appeal.
But it failed to consider the provisions of
s 17(1)
(a)
(ii)
of the
Superior Courts Act which
provide that leave to appeal may be
granted, notwithstanding the Court’s view of the prospects of
success, where there are
nonetheless compelling reasons why an appeal
should be heard. This is linked to the question of mootness. In that
regard there
is established jurisprudence in this Court that holds
that even where an appeal has become moot the Court has a discretion
to hear
and dispose of it on its merits. The usual ground for
exercising that discretion in favour of dealing with it on the merits
is
that the case raises a discrete issue of public importance that
will have an effect on future matters.
[10]
That jurisprudence should have been considered as a guide to
whether, notwithstanding the High Court’s view of an appeal’s

prospects of success, leave to appeal should have been granted. In my
view it clearly pointed in favour of leave to appeal being
granted.
[24]
That is not to say that merely because the
High Court determines an issue of public importance it must grant
leave to appeal. The
merits of the appeal remain vitally important
and will often be decisive. Furthermore, where the purpose of the
appeal is to raise
fresh arguments that have not been canvassed
before the High Court, consideration must be given to whether the
interests of justice
favour the grant of leave to appeal. It has
frequently been said by the Constitutional Court that it is
undesirable for it as the
highest court of appeal in South Africa to
be asked to decide legal issues as a court of both first and last
instance. That is
equally true of this Court. But there is another
consideration. It is that if a point of law emerges from the
undisputed facts
before the court it is undesirable that the case be
determined without considering that point of law. The reason is that
it may
lead to the case being decided on the basis of a legal error
on the part of one of the parties in failing to identify and raise

the point at an appropriate earlier stage.
[11]
But the court must be satisfied that the point truly emerges on the
papers, that the facts relevant to the legal point have been
fully
canvassed and that no prejudice will be occasioned to the other
parties by permitting the point to be raised and argued.
[12]
[25]
In the present case SALC accepted that the
fresh argument advanced by the Government was foreshadowed by the
factual material before
the Court. No prejudice would be caused by
permitting it to be raised at this stage. It is undoubtedly a point
of substantial public
importance. The new arguments cannot be said to
lack reasonable prospects of success and they were forcefully and
cogently argued
before us. In those circumstances leave to appeal
should be granted.
Amici
[26]
Applications for admission as amici curiae
in this Court have hitherto been dealt with ad hoc and the provisions
of the rule governing
such applications have not yet been the subject
of detailed consideration in a judgment. It is as well therefore to
deal shortly
with this topic. Such applications are made in terms of
rule 16
of the rules of this Court.
[13]
In terms of
rule 16(1)
if all parties agree to the admission of an
amicus they are admitted as such.
[14]
The rule contemplates that the parties when agreeing to the admission
of an amicus will agree on the terms on which the amicus
is to be
admitted. Under
rule 16(2)
those are then the terms that govern their
admission, subject to the power of the President of the Court to
amend or vary those
terms under
rule 16(3).
It is apparent that the
terms can relate only to the delivery of written argument, which is
limited to 20 pages, because
rule 16(8)
provides that no amicus has a
right to address oral submissions to the Court unless the Court so
orders. Given the wording of the
rule it is plain that this is a
reference to the Court hearing the appeal and not the President when
dealing with an application
for admission as an amicus. The general
experience of the members of this Court is that the President leaves
the question of oral
argument to the presiding judge or Court hearing
the appeal. Accordingly leave to make oral submissions can only be
sought after
the written submissions have been delivered and the
Court has the opportunity of considering whether hearing oral
submissions from
the amicus will assist in its deliberations. If an
amicus seeks leave to make oral submissions it must set out the
grounds therefor
in its written argument.
[27]
Adherence to this procedure will ensure
that the written argument of the amicus can be considered along with
the reading of the
record and the consideration of the heads of
argument of the parties when the members of the Court are engaged in
preparing the
appeal. It is only then that it will be possible to
determine whether the amicus can add anything by way of oral
submissions. But
the Court will nonetheless consider its argument.
Whether it will permit the amicus to make oral submissions will
depend
upon its assessment of whether those submissions can add
anything to an argument already before it in written form.
[28]
Where there is no agreement among the
parties as to the admission of an amicus it is entitled to seek its
admission by way of an
application to the President of the Court in
terms of
rule 16(4).
The basis upon which such an application shall
be made is set out in
rules 16(5)
and (6). The rule does not make
provision for any opposition to such an application, but the general
practice is for the President
to invite a response from other parties
who oppose the admission. The President then determines the
application in accordance with
rule 16
and, if the amicus is
admitted, determine the terms upon which they are admitted and
permitted to deliver written argument. The
rule’s constraints
on the length of written argument apply unless relaxed by the
President.
[15]
[29]
An amicus is not entitled to submit further
evidence to the Court but is confined to the record. That is
expressly provided in
rule 16(8).
It is unnecessary to consider
whether there are exceptional circumstances in which the Court
hearing the appeal may relax that
rule.
[16]
In making submissions the amicus is not permitted to traverse ground
already covered by other parties, but is confined to making

submissions on the new contentions that it wishes to place before the
Court.
[17]
In that regard it is apposite to point out that adding additional
references, whether to case law or to academic writings, on the

matters canvassed in the heads of argument of the litigants, does not
amount to advancing new contentions. That obviously does
not exclude
placing material before the Court to demonstrate that a point of
controversy between the parties has been settled by
way of an
authoritative judgment. It would only be if there had, for example,
been an authoritative decision placing a legal issue
thought to be
controversial beyond dispute that an amicus may include that in its
argument. Otherwise it is confined to its new
and different
contentions and these must be clearly stated.
[30]
Finally, new contentions are those that may
materially affect the outcome of the case. It is not feasible to be
prescriptive in
this regard but prospective amici and their advisers
must start by considering the nature and scope of the dispute between
the
parties and, on that basis, determine whether they have distinct
submissions to make that may alter the outcome or persuade the
Court
to adopt a different line of reasoning in determining the outcome of
the appeal. Obvious examples would be urging the Court
to adopt
reasoning based on provisions of the Constitution in construing a
statute, where the parties have not taken that course,
or a
submission that the fundamental legal principles to be applied in
determining the dispute are other than those submitted by
the parties
where their adoption would materially affect the outcome of the case.
No doubt others can be imagined.
[18]
[31]
It is appropriate to comment that the
applications appear to have paid little heed to the language of rule
16.  In the first
place other than that of the Foundation, none
of the letters addressed to the Government and SALC sought to define
with any clarity
the new contentions that the prospective amici
wanted to raise or why they would be of assistance to the Court. The
complaints
concerning this by the Government in its responses to the
requests were in my view generally well-founded.
[32]
An even clearer difficulty is that, again
with the exception of the Foundation, the letters did not spell out
the terms on which
the prospective amici sought admission as such.
Nor in every case did the response from SALC. It merely indicated its
willingness
to agree to admit the amici without dealing with the
terms upon which they should be admitted. When applications were
brought they
overlooked the fact that an application to the President
of the Court is an application for admission as an amicus, but not an
application to be permitted to make oral submissions. It is the Court
hearing the appeal that makes that decision. If an amicus
wishes to
make oral submissions it should indicate that when it submits its
written submissions.
[33]
The Deputy President of this Court granted
the Foundation leave to intervene as an amicus prior to the hearing.
While there was
some procedural confusion about that order and the
Government indicated that it would have opposed it had it been
afforded the
opportunity to do so,
[19]
it was in my judgment an order that was properly made. The
Foundation’s approach to the dispute was wholly distinct from

that of SALC. The latter approached the case on the basis of its view
of the content of customary international law and an interpretation

of the relevant provisions of the Implementation Act and DIPA. The
Foundation’s starting point was the constitutional provisions

that make international law part of South African law and from that
foundation developed submissions as to the proper construction
of
s 4(1) of DIPA and its relationship to the obligations
undertaken by this country under the Rome Statute and the
Implementation
Act. These contentions were clearly new and of
assistance to the Court in dealing with the merits of the appeal.
[34]
Notwithstanding the refusal of their
application to submit further evidence to the Court, the African
Centre for Justice and Peace
Studies and the International Refugee
Rights Initiative submitted heads of argument in support of the
dismissal of the appeal and
counsel appeared on their behalf. It was
unclear from their application that in addition to the further
evidence they had any new
contentions to advance, because they said
that the legal arguments would be addressed by SALC ‘and there
is no need for the
applicants to address it any further’. The
stated purpose of their intervention was to place ‘vital
evidence’
before the Court in order ‘to make it plain to
the Court that the only real hope of justice for the victims of Sudan
is for
President Al-Bashir and the members of his government who have
been indicted by the ICC to be arrested and surrendered to the ICC
by
a third state’. Nonetheless on 8 February 2016, four days
before the hearing they delivered heads of argument and
a bundle of
authorities running to some 750 pages.
[35]
The purpose of this, according to the heads
of argument and as explained by counsel, was to stress that, in the
absence of a remedy
before the ICC, victims of international crimes
perpetrated by President Al Bashir and persons for whose actions he
might be held
responsible, would have no effective remedy. But that
added nothing to the resolution of the issues before us. The
principle of
complementarity that underpins the Rome Statute
[20]
makes it clear that the ICC exists to provide a forum for prosecution
of international crimes where national courts are unable
or unwilling
to do so. So, it is apparent that where victims are unable to proceed
in their own national court the ICC will necessarily
be the tribunal
to which they will turn for justice and protection,
[21]
as well as reparations for crimes of which they have been the
victims.
[22]
[36]
Not only were the matters that these
parties sought to raise apparent to the Court from the terms of the
Rome Statute itself, but
no indication was given of how knowledge of
them would affect the determination of the issues in the case. Those
involved the construction
of a South African statute, DIPA, and the
question whether it afforded President Al Bashir immunity against
arrest under the Implementation
Act pursuant to the warrants issued
by the ICC. For those reasons the application for admission as amici
curiae by the African
Centre for Justice and Peace Studies and the
International Refugee Rights Initiative must be refused. In view of
the valuable work
that these organisations perform in their field of
activities, and their genuine concern in regard to the issues raised
in this
case and the background facts giving rise to the ICC’s
decision to charge President Al Bashir with international crimes, it

would be inappropriate to order them to pay any costs incurred by
other parties arising out of their application.
[37]
Then there is the application by the Peace
and Justice Initiative and the Centre for Human Rights. Again there
is no doubting their
legitimate concerns about events in Sudan and
the continuing inability of the ICC to bring President Al Bashir to
trial in respect
of the charges he faces of having committed
international crimes. But legitimate concern over issues providing
the background to
an appeal is not of itself a justification for
admission as an amicus curiae. The prospective amicus must either
have the agreement
of the other parties, which was not forthcoming in
this case, or must satisfy the President of the Court that it is
entitled to
be so admitted in terms of rule 16.
[38]
These two bodies sought to advance argument
on five matters set out in their heads of argument. These heads were
accompanied by
a bundle of documents amounting to a little short of
1000 pages delivered on 8 February 2016. The contentions
advanced in
the heads of argument differed somewhat from the matters
described in their application, but the differences did not appear to
be significant
.
The five matters were the international nature of the crimes and the
ICC; the import of Security Council Resolution 1593 (2005);
the
effect of Sudan and South Africa being a signatory to the Genocide
Convention (1948);
[23]
the interpretation of Articles 27 and 98 of the Rome Statute,
especially in the light of the
travaux
préparatoires
and ‘the
original intent of the drafters’; and the unavailability of
fora akin to the ICC with international jurisdiction,
in Africa or
elsewhere, to prosecute the alleged perpetrators in this case.
[39]
The last of these overlapped with the
contentions by the African Centre for Justice and Peace Studies and
the International Refugee
Rights Initiative and does not provide a
ground for the admission of these parties as amici. Proof of the
content of the
travaux préparatoires
and ‘the original intent of the
drafters’ would require evidence, which is impermissible and
leave to lead which was
neither sought nor granted. As regards the
other three matters they were all dealt with in the arguments of the
Government and
SALC. They were not new contentions. For those reasons
the application for their admission as amici curiae must be refused,
but
again and for similar reasons no adverse order for costs should
follow.
Article VIII of the
hosting agreement
[40]
This was not only the principal, but also
the only, argument advanced by Government before the High Court. It
assumed secondary
importance when the application for leave to appeal
was brought. It was pursued in this Court principally on the footing
that until
the ministerial proclamation was set aside it afforded
President Al Bashir immunity from arrest and surrender under the
Implementation
Act. I deal with it first in order to stress that,
contrary to the Government’s criticism, the High Court’s
understanding
of the issue argued before it was undoubtedly correct
and to affirm the correctness of its conclusions on that issue.
[41]
The High Court gave the argument short
shrift. It said that on its terms the hosting agreement conferred
immunity on members or
staff of the AU Commission and on delegates
and other representatives of Inter-Governmental Organisations. This
did not include
member states or their representatives or delegates.
Furthermore the section of DIPA relied on by the Minister in making
her proclamation
was s 5(3). That section empowered the Minister
to confer immunity on:
‘
Any
organisation recognised by the Minister for the purposes of this
section and any official of such organisation enjoy such privileges

and immunities as may be provided for in any agreement entered into
with such organisation or as may be conferred on them by virtue
of
section 7(2).’
Plainly, so the High
Court held, the section did not cover heads of state or
representatives of states attending meetings of the
AU, but only the
AU itself and other organisations such as the Inter-Governmental
Organisations referred to in Article VIII. The
definition of an
organisation in s 1 of DIPA demonstrates that it does not apply
to member states but to intergovernmental
organisations.
[42]
There is little that can be added to that
reasoning. I mention the following. Section 5 has the heading
‘Immunities and privileges
of United Nations, specialised
agencies and other international organisations’. That fortifies
the conclusion that a proclamation
under the section does not apply
to other persons. Second, the hosting agreement is one between South
Africa as the host nation
and the AU. It is intended to deal with the
representatives and officials of the AU and organisations with which
it has relationships,
not with the position of heads of state and
state delegations. If there is to be a special agreement for immunity
in respect of
such persons it must be made under s 7. Otherwise
their right to immunity, if any, will arise by virtue of customary
international
law and, in South Africa, DIPA. Although s 4(1)
(c)
of DIPA contemplates the possibility of
a s 7 agreement applying to a head of state a careful reading
suggests that this relates
only to the conferral of additional
privileges that the head of state would not otherwise enjoy by virtue
of s 4(1)
(a)
.
[43]
Counsel for the Government endeavoured to
circumvent these difficulties in the following way. Prior to
President Al Bashir coming
to South Africa Sudan had requested that
he be afforded the privileges and immunities of a delegate attending
the AU Summit. The
provisions of Article VIII of the hosting
agreement were promulgated for this purpose. Even if the Minister
exceeded her powers
in doing so the proclamation remained in force
until set aside in terms of the
Oudekraal
principle.
[24]
As it had not been set aside it remained effective to confer immunity
on President Al Bashir notwithstanding any underlying legal
defects
in its proclamation.
[44]
The difficulty with this contention is that
it demands in the first instance that Article VIII of the hosting
agreement covered
President Al Bashir. If it did not it was
irrelevant that the Minister thought, or had been advised, that it
did. And that in turn
depended in the first instance upon President
Al Bashir being a delegate to the AU Assembly. But a head of state
attending an AU
Assembly does not do so as a delegate but as the
embodiment of the member state itself.  That is apparent from
the AU’s
description of the Assembly on its website as:
‘
The
Assembly is the African Union’s (AU’s) supreme organ and
comprises Heads of State and Government from all Member
States.
’
[45]
The Constitutive Act of the AU makes this
perfectly clear. In Article 1 it defines ‘Member State’
as being ‘a
Member State of the Union’ and the ‘Assembly’
as ‘the Assembly of Heads of State and Government of the
Union’. The ‘Union’ is the AU. In terms of Article
6.1 it is composed of Heads of State and Government ‘or
their
duly accredited representatives’. Under Article 7.1 decisions
of the Assembly are taken by consensus, or failing that
by a
two-thirds majority of Member States. The AU is composed of member
states and the Assembly is its governing body composed
of the heads
of state or heads of government of the member states. They are the
embodiment of the member states not delegates from
them. Without the
heads of state and heads of government or their representatives there
can be no Assembly.
[46]
Over and above that difficulty there is no
basis for saying that heads of state attending the Assembly were
encompassed by the reference
to ‘delegates’ in Article
VIII.1 of the hosting agreement. The agreement was concluded between
the AU and the South
African government. There is nothing to indicate
that the AU was representing the heads of state of member states or
their delegations
in concluding the agreement or was concerned with
their entitlement to immunity when visiting South Africa. That was a
matter for
the diplomatic relationship between South Africa and other
member states, not the AU. It is an agreement relating to the
‘material
and technical organisation’ of various meetings
including the Assembly. It makes no reference to heads of state in
any of
its provisions. The key words in Article VIII.1 are ‘the
delegates and other representatives of Inter-Governmental
Organizations
attending the Meetings’. That relates only to
persons who are there because of their entitlement to be there on
behalf of
one or other inter-governmental organisation, not to those
who are there on behalf of a member state.
[25]
[47]
The necessary conclusion is that President
Al Bashir was not a person included in the reference to ‘delegates’
in Article
VIII.1 of the hosting agreement. As such the hosting
agreement did not confer any immunity on President Al Bashir and its
proclamation
by the Minister of International Relations and
Cooperation 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.
And, that being so, it was unnecessary for SALC to
seek to set the proclamation aside before bringing its application.
[48]
The High Court was accordingly correct in
the conclusion it reached on the arguments placed before it.  It
cannot be criticised
for not dealing with an argument that was never
raised or suggested before it. It was proper therefore for it to make
an order
in favour of SALC on the issues before it. Whether its order
was correct in the light of the new arguments now raised is the
matter
to which I now turn.
Was there immunity under
customary international law and s 4(1) of DIPA?
[49]
The argument on behalf of Government ran as
follows. It is a well established principle of customary
international law that heads
of state enjoy immunity
ratione
personae,
that is, by virtue of the
office they hold, and are not subject to the criminal or civil
jurisdiction of the Courts of other countries
or any other form of
restraint. In the usual terminology they are regarded as inviolable.
This immunity is embodied in s 4(1)
(a)
of DIPA, which provides:
‘
A
head of state is immune from the criminal and civil jurisdiction of
the Courts of the Republic, and enjoys such privileges as
–
(a)
heads of state enjoy in accordance
with the rules of customary international law …’
It follows that
before the enactment of the Implementation Act President Al Bashir
would have enjoyed immunity from arrest and surrender
to the ICC
notwithstanding South Africa’s accession to the Rome Statute.
[50]
The Government submitted that the
Implementation Act does not remove this immunity. On a proper
construction of s 4(2) of the
Implementation Act it has nothing
to do with immunity from arrest in terms of the ICC warrants, but
precludes immunity being advanced
as a defence or in mitigation of
sentence in a prosecution for international crimes before a South
African Court. It does not therefore
remove the immunity that a head
of state enjoys from arrest in South Africa even for international
crimes to be prosecuted before
the ICC. As to s 10(9) of the
Implementation Act it is concerned only with the surrender of a
person properly arrested pursuant
to an ICC warrant. It precludes
such a person from raising immunity to preclude surrender. But it is
silent on the question whether
such person may be arrested in the
first place. If they were immune from arrest then they should not be
arrested and there is no
room for an inquiry in terms of s 10(5)
of the Implementation Act and therefore no room for applying the
exclusion of immunity
in s 10(9).
[51]
SALC countered this argument in the
following way. The Implementation Act was intended to give effect to
South Africa’s accession
to the Rome Statute and South Africa’s
obligations thereunder. These included the obligation to cooperate
with the ICC in
causing persons in respect of whom the ICC has issued
arrest warrants and requested assistance to be arrested and
surrendered.
Properly construed, in the light of these obligations,
the provisions of ss 4(2) and 10(9) of the Implementation Act
preclude
anyone, whether in a prosecution before a South African
Court, or when arrested pursuant to an ICC warrant, from raising as
defence
to their prosecution or ground for resisting their arrest and
surrender, any form of immunity.
[52]
In the alternative SALC joined issue with
the Government on the contents of customary international law. It
contended that whatever
the position may be in relation to a national
court, in the case of an international tribunal, such as the ICC, set
up to deal
with international crimes, there is no immunity from
arrest or prosecution. In regard to the specific situation in Sudan
SALC contended
that the effect of Security Council Resolution 1593
(2005) was to subject Sudan to the provisions of the Rome Statute,
notwithstanding
the fact that it has not acceded to it and thereby to
compel it to cooperate with the ICC. A consequence of that, and the
fact
that Sudan was obliged to cooperate fully with the ICC, was that
it could not invoke immunity to prevent President Al Bashir from

being arrested and surrendered to face trial before the ICC. In
regard to the second arrest warrant, which dealt with the crime
of
genocide, SALC pointed out that Sudan was a party to the Genocide
Convention (1948) and as such it contended that it had waived
any
immunity that its citizens would otherwise have enjoyed for
prosecution of crimes falling within the scope of the Convention.
[53]
The Foundation’s argument took the
Constitution as its starting point. It said that under the
Constitution the Government
is required to take steps to ensure that
persons accused of international crimes are detained, arrested and
prosecuted before an
appropriate tribunal. This duty is reinforced by
the fact that under s 232, customary international law is law in
South Africa
unless it is inconsistent with the Constitution or an
Act of Parliament.
[26]
Section 231 deals with the legal effect of international agreements,
such as the Rome Statute, to which South Africa is a party.
Under
s 231(4) an international agreement becomes law in South Africa
when it is enacted into law by national legislation.
So customary
international law is to be read in the light of legislation under
which South Africa has enacted international agreements
into law.
When construing s 4(1)
(a)
of DIPA and its reference to customary international law, it must be
read in the light of these constitutional obligations and
provisions.
The immunity confirmed in s 4(1)
(a)
of DIPA must therefore be construed in a way that is consistent with
the absence of immunity from prosecution for international
crimes
provided in the Rome Statute.
The
Rome Statute
[54]
The Rome Statute is an international
agreement between the State Parties thereto, directed at the
prosecution and sentencing of
those responsible for the international
crimes of war crimes, genocide and crimes against humanity. The
importance of the international
struggle to rid the world of these
crimes is resoundingly stated in the Preamble in the following terms:
‘
The
States Parties to this Statute
,
Conscious
that all peoples are united by common
bonds, their cultures pieced together in a shared heritage, and
concerned that this delicate
mosaic may be shattered at any time,
Mindful
that during this century millions of
children, women and men have been victims of unimaginable atrocities
that deeply shock the
conscience of humanity,
Recognizing
that such grave crimes threaten the
peace, security and well-being of the world,
Affirming
that the most serious crimes of
concern to the international community as a whole must not go
unpunished and that their effective
prosecution must be ensured by
taking measures at the national level and by enhancing international
cooperation,
Determined
to put an end to impunity for the
perpetrators of these crimes and thus to contribute to the prevention
of such crimes,
Recalling
that it is the duty of every State to
exercise its criminal jurisdiction over those responsible for
international crimes,
…
Determined
to these ends and for the sake of
present and future generations, to establish an independent permanent
International Criminal Court
in relationship with the United Nations
system, with jurisdiction over the most serious crimes of concern to
the international
community as a whole,
Emphasizing
that the International Criminal Court
established under this Statute shall be complementary to national
criminal jurisdictions,
Resolved
to guarantee lasting respect for and
the enforcement of international justice,
Have
agreed as follows
’
.
[55]
Article 1 creates the ICC and gives it the
power ‘to exercise its jurisdiction over persons for the most
serious crimes of
international concern’. Although the Rome
Statute was concluded outside the United Nations (UN) the aim under
Article 2 is
to bring it into relationship with the UN by agreement
between the UN and the ICC. The international crimes that are the
subject
of the ICC’s jurisdiction are defined, as is the
Court’s jurisdiction. In the ordinary course the ICC has
jurisdiction
over state parties and their nationals and where a
non-party state accepts the jurisdiction of the Court.
[56]
This jurisdiction is not universal because
parties may for various reasons not accede to the Rome Statute.
[27]
Article 13
(b)
of the Rome Statute endeavours to address this problem by providing
that the ICC may exercise jurisdiction if:
‘
a
situation in which one or more of such crimes appears to have been
committed is referred to the Prosecutor by the Security Council

acting under Chapter VII of the Charter of the United Nations.’
The
Security Council referred the situation in Darfur to the Prosecutor
in terms of this provision. While there is debate among
commentators
as to the full effect of such a referral, it is accepted by all that
it confers jurisdiction upon the ICC in respect
of the actions of a
non-party state and its citizens.
[28]
UN member states are obliged to accept the authority of the decision
by the Security Council to refer the situation in Darfur to
the
Prosecutor.
[29]
[57]
Part 9 of the Rome Statute deals
comprehensively with the obligations of international cooperation and
judicial assistance to the
ICC in the performance of its tasks.
Article 86 imposes a general obligation to cooperate fully with the
Court in the investigation
and prosecution of crimes within its
jurisdiction. Under Article 87.1
(a)
the ICC may address requests for cooperation to States Parties and
under Article 88 all States Parties are obliged to have procedures

available under national law to enable them to cooperate with the
Court.
[58]
Article 89 deals with the arrest and
surrender of persons to the ICC and its entitlement to request a
State to cooperate in securing
such arrest and surrender. It is
common cause that the ICC has made such a request to South Africa in
relation to the arrest warrants
issued in respect of President Al
Bashir. In urgent cases the ICC may, in terms of Article 92, seek the
provisional arrest of a
person, but that was not the case here,
although there appears to have been some confusion over the issue in
the application papers
and the order made by the High Court. I will
revert to that later.
[59]
Article 27 of the Rome Statute deals with
the possibility that the crime being prosecuted is likely in many
instances to have been
perpetrated by a state actor, ranging from a
head of state to a humble official or soldier, and therefore the
possibility would
exist of the accused person raising a claim to
immunity in accordance with long-established principles of customary
international
law, to be considered later in this judgment. It reads:
‘
1.  This
Statute shall apply equally to all persons without any distinction
based on official capacity. In particular,
official capacity as a
Head of State or Government, a member of a Government or parliament,
an elected representative or a government
official shall in no case
exempt a person from criminal responsibility under this Statute, nor
shall it, in and of itself, constitute
a ground for reduction of
sentence.
2.  Immunities
or special procedural rules which may attach to the official capacity
of a person, whether under national
or international law, shall not
bar the Court from exercising its jurisdiction over such a person.’
The
undisputed effect of this provision is that it is not open to a
person being prosecuted before the ICC to claim immunity from

prosecution or advance a defence of superior orders. It is agreed by
all commentators that, because Party States have bound themselves
to
the Statute including this provision, all Party States have waived
any immunity that their nationals would otherwise have enjoyed
under
customary international law.
[60]
One further provision requires discussion.
It is Article 98 providing that:
‘
1.  The
Court may not proceed with a request for surrender or assistance
which would require the requested State to act
inconsistently with
its obligations under international law with respect to the State or
diplomatic immunity of a person or property
of a third State, unless
the Court can first obtain the cooperation of that third State for
the waiver of the immunity.
2.  The
Court may not proceed with a request for surrender which would
require the requested State to act inconsistently
with its
obligations under international agreements pursuant to which the
consent of a sending State is required to surrender a
person of that
State to the Court, unless the Court can first obtain the cooperation
of the sending State for the giving of consent
for the surrender.’
This
provision has occasioned much debate. There is a measure of consensus
that it deals with requests for surrender or assistance
in relation
to the nationals, including heads of state, of non-Party States such
as Sudan. Beyond that there appear to be two views.
The one, espoused
by the AU,
[30]
is that it operates to protect Party States from the obligation to
cooperate with requests from the ICC for arrest and surrender
or
assistance where that would involve their breaching their obligations
to respect personal inviolability under customary international
law
towards non-Party States.
[31]
In other words it provides the justification for African states to
refuse to arrest and surrender President Al Bashir, because
he is
entitled as the head of state of Sudan to immunity
ratione
personae
.
[32]
The other view is that, as non-Party States and their nationals are
ordinarily brought within the jurisdiction of the ICC by way
of a
Security Council reference under Article 13
(b)
,
Article 27 is thereby made applicable to the non-Party State and
therefore it is not open to it to rely on Article 98.
[33]
It is well-recognised that there is a tension between Articles 27 and
98 that has not as yet been authoritatively resolved.
[61]
South Africa is bound by its obligations
under the Rome Statute. It is obliged to cooperate with the ICC and
to arrest and surrender
to the Court persons in respect of whom the
ICC has issued an arrest warrant and a request for assistance. To
this end it passed
the Implementation Act. The relationship between
that Act and the head of state immunity conferred by customary
international law
and DIPA lies at the heart of this case. But the
starting point is not immediately with these, but with the
Constitution.
The
Constitutional background
[62]
The Constitution makes international
customary law part of the law of South Africa, but it may be amended
by legislation.
[34]
It provides a specific mechanism whereby obligations assumed under
international agreements become a part of the law of South
Africa.
[35]
And it decrees that, when interpreting any legislation, the Courts
must prefer a reasonable interpretation that is consistent with

international law over any alternative interpretation that is
inconsistent with international law.
[36]
As Ngcobo CJ said in
Glenister (II)
:
[37]
‘
Our
Constitution reveals a clear determination to ensure that the
Constitution and South African law are interpreted to comply with

international law, in particular international human-rights law …
These provisions of our Constitution demonstrate that
international
law has a special place in our law which is carefully defined by
the   Constitution.’
[63]
The Constitution incorporated these
provisions pursuant to the goal stated in the Preamble that its
purpose is to ‘[b]uild
a united and democratic South Africa
able to take its rightful place as a sovereign state in the family of
nations’. From
being an international pariah South Africa has
sought in our democratic state to play a full role as an accepted
member of the
international community. As part of this aim it enacted
the Implementation Act, the preamble to which records that South
Africa
has become ‘an integral and accepted member of the
community of nations’.
[64]
The Constitutional Court explained the
inter-relationship between South Africa’s obligations under
international law and its
domestic law in
National
Commissioner of Police v Southern African Human Rights Litigation
Centre
.
[38]
The Court was dealing with claims of torture, but its statements also
referred to international crimes and are apposite in the
context of
the present case. Giving the judgment of the Court Majiedt AJ said:
‘
[37]
Along with torture, the international crimes of piracy,
slave-trading, war crimes, crimes against humanity,
genocide and
apartheid require states, even in the absence of binding
international-treaty law, to suppress such conduct because
“all
states have an interest as they violate values that constitute the
foundation of the world public order”. Torture,
whether on the
scale of crimes against humanity or not, is a crime in South Africa
in terms of s 232 of the Constitution because
the customary
international law prohibition against torture has the status of a
peremptory norm.
[38]
Furthermore, along with genocide and war crimes there is an
international treaty law obligation
to prosecute torture. The
Convention against Torture, an international convention drafted
specifically to deal with the crime of
torture, obliges states
parties to “ensure that all acts of torture are offences under
its criminal law”, together
with an “attempt to commit
torture” and “complicity and participation in torture”.
[39]
South Africa has fulfilled this international-law obligation through
the recent enactment of the Torture Act [Prevention and
Combating of
Torture of Persons Act 13 of 2013]’. In effect, torture is
criminalised in South Africa under s 232 of the Constitution
and the
Torture Act whilst torture on the scale of crimes against humanity is
criminalised under s 232 of the Constitution, the
Torture Act and the
ICC Act …
[40]
Because of the international nature of the crime of torture, South
Africa, in terms of ss 231(4), 232 and 233 of the Constitution
and
various international, regional and subregional instruments, is
required, where appropriate, to exercise universal jurisdiction
in
relation to these crimes as they offend against the human conscience
and our international- and domestic-law obligations. The
exercise of
universal jurisdiction is, however, subject to certain limitations.’
[65]
That passage strongly supports SALC’s
case that the Government was under an obligation to cooperate with
the ICC in arresting
President Al Bashir. I did not understand Mr
Gauntlett SC to challenge it as a general proposition. His contention
was that, as
foreshadowed in the final sentence, the principles
governing the immunity
ratione personae
of heads of state constituted a
limitation on this exercise of universal jurisdiction that precluded
the performance of these obligations
in relation to current heads of
state.
[39]
This necessitates a consideration of the nature of immunity in
customary international law and, more specifically, the nature of

head of state immunity.
Immunity
in customary international law
[66]
Professor Crawford
[40]
describes the basic principles of the international law of immunity
in the following terms:
‘
State
immunity is a rule of international law that facilitates the
performance of public functions of the state and its representatives

by preventing them from being sued or prosecuted in foreign Courts.
Essentially, it precludes the Courts of the forum state from

exercising adjudicative and enforcement jurisdiction in certain
classes of case in which a foreign state is a party. It is a
procedural
bar (not a substantive defence) based on the status and
functions of the state or official in question. Previously described
as
a privilege conferred at the behest of the executive, the grant of
immunity is now understood as an obligation under customary
international law … [T]he existence of this obligation is
supported by ample authority … Immunity exists as a rule
of
international law, but its application depends substantially on the
law and procedural rules of the forum.’
This
immunity is available when it is sought to implead a foreign state,
whether directly or indirectly,
[41]
before domestic Courts, and also when action is taken against state
officials acting in their capacity as such. They enjoy the
same
immunity as the state they represent.
[42]
This is known as immunity
ratione
materiae
(immunity attaching to
official acts). In addition, heads of state and certain other high
officials of state
[43]
enjoy immunity
ratione personae
(immunity by virtue of status or an
office held at any particular time). This form of immunity terminates
when the individual demits,
or is removed from, office. The country
concerned may waive either form of immunity.
[67]
The Government called these principles in
aid in support of its position that President Al Bashir was immune
from arrest and surrender
in terms of the Implementation Act. It
cited the authoritative statements by the International Court of
Justice (ICJ) in the
Arrest Warrant
case
[44]
that:
‘…
[I]n
international law it is firmly established that … certain
holders of High-ranking office in a State, such as the Head
of State
… enjoy immunities from jurisdiction in other States, both
civil and criminal.
…
[T]hroughout the duration of his or
her office, he or she when abroad enjoys full immunity from criminal
jurisdiction and inviolability.
That immunity and inviolability
protect the individual concerned against any act of authority of
another State which would hinder
him or her in the performance of his
or her duties. ’
In
regard to a suggestion that, because the case concerned allegations
of the commission of international crimes, there was an exception
to
the principle, the ICJ said (para 58) that it had examined State
practice, including national legislation and decisions of higher

national courts, but was unable to deduce that there existed under
customary international law any exception to this rule where
the
individual concerned was suspected of having committed war crimes or
crimes against humanity. This appears to be accepted by
leading
commentators such as Professor Akande.
[45]
It has also been widely accepted by national courts which have
rejected attempts to implead sitting heads of state including Prime

Minister Sharon of Israel, President Gaddafi of Libya, President
Mugabe of Zimbabwe, Prime Minister Thatcher of the United Kingdom,

President Castro of Cuba, President Zemin of China, President Kagame
of Rwanda and President Aristide of Haiti, while the latter
was
living in exile in the United States of America.
[46]
[68]
Dating back to the instrument that
established the Nuremberg Trials, it has been a feature of
international instruments dealing
with the prosecution of
international crimes before specially constituted international
tribunals, that those tribunals are constituted
on the basis of
specific provisions excluding claims of immunity as a defence or
mitigating circumstance before those tribunals.
[47]
The ICJ considered these as well (para 58) and found that they
likewise did not enable it to conclude that any such exception
existed in customary international law in regard to national Courts.
But it was urged upon us that customary international law has
moved
on and at least when it was concerned with international crimes and
international tribunals such as the ICC these principles
were subject
to an exception.
[69]
I mean no disrespect to the efforts of
counsel to provide us with a comprehensive body of authority dealing
with the issue of immunity
in relation to persons charged with
international crimes, in not engaging in a comprehensive
consideration of the material placed
before us. The narrow issue is
whether there is now an international crimes exception to the
principle of head of state immunity,
enabling a state or national
court to disregard such immunity when called upon by the ICC to
assist in implementing an arrest warrant.
The argument proceeded, as
does this judgment, on the basis that once a head of state has been
brought before the ICC no plea of
head of state immunity can be
invoked.
[48]
But, as a number of commentators have pointed out, that does not
necessarily mean that a state is entitled to ignore head of state

immunity when requested to cooperate with the ICC to bring such a
person before it. It is in this context that the question of
an
international crimes exception to head of state immunity arises.
[70]
In the absence of a binding treaty or other
international instrument creating such an exception, or an
established universal practice
in the affairs of nations, one looks
to the decisions of international courts for guidance as to the
existence of such an exception.
But we were referred to no decision
by the ICJ itself, qualifying or limiting the scope of its decision
in the Arrest Warrant case.
Instead the ICJ appears to have affirmed
the decision in its subsequent judgment in Djibouti v France,
[49]
where it cited the judgment and explained that ‘the determining
feature in assessing whether there has been an attack on
the immunity
of the Head of State lies in the subjection of the latter to a
constraining act of authority’. Then in the
Jurisdictional
Immunities
case,
[50]
after a comprehensive review of both national and international
jurisprudence on the point, the ICJ rejected a contention that

international law does not recognise immunity, or at least restricts
it, in cases involving serious violations of the law of armed

conflict. No more recent case from the ICJ was drawn to our
attention.
[71]
The
Jurisdictional
Immunities
case involved a civil claim
by one state against another state, but I can discern nothing in the
underlying treatment of customary
international law that would
justify admitting an exception to head of state immunity for
international crimes in the context of
criminal proceedings, but
denying it in relation to civil proceedings. I am mindful that in
some of the reasoning in both
Pinochet
(3)
[51]
and
Jones
[52]
there are passages in which a careful distinction is drawn between
civil liability, and the case of criminal liability.
[53]
But
Pinochet (3)
was dealing with the criminal liability of a former head of state,
not civil liability, and in
Jones
the
House of Lords was concerned with the possible circumvention of state
immunity, by permitting personal actions against the officials
of the
state. Permitting such an action would indirectly infringe the
absolute immunity of the foreign state, but indirect infringement

does not arise in a criminal case. Of greater relevance in regard to
the contention that there is an international crimes exception
to
head of state immunity is that there are clear statements in
Pinochet
(3)
that if Senator Pinochet had still
been the Chilean head of state he would have enjoyed immunity
ratione
personae
.
[54]
Apart from the point of circumvention of state immunity, it was not
suggested that the principles of immunity are different in
respect of
criminal prosecution of international crimes as opposed to the
adjudication of civil claims arising from the perpetration
of
international crimes. As pointed out by Professor Crawford the
immunity afforded to state officials has always been the same
as that
of the state they represent.
[55]
And Dame Hazel Fox QC and Philippa Webb say that ‘Civil
immunity can in the last resort … be regarded as based on

criminal immunity.’
[56]
[72]
In two cases, both relied on by the ICJ in
the
Jurisdictional Immunities
decision,
the European Court of Human Rights (ECHR) has likewise accepted that
customary international law is as stated in the
Arrest
Warrant
case insofar as it concerns
civil claims.  The ICJ cited the following passage from the ECHR
decision in
Al Adsani
:
[57]
‘
Notwithstanding
the special character of the prohibition of torture in international
law, the Court is unable to discern in the
international instruments,
judicial authorities or other materials before it any firm basis for
concluding that, as a matter of
international law, a State no longer
enjoys immunity from civil suit in the Courts of another State where
acts of torture are alleged.’
Then
in
Kalogeropoulou
[58]
the EHCR said:
‘
The
Court does not find it established, however, that there is yet
acceptance in international law of the proposition that States
are
not entitled to immunity in respect of civil claims for damages
brought against them in another State for crimes against humanity.”
[73]
I can see the force of an argument that the
prosecution of perpetrators of international crimes is of greater
importance than permitting
civil claims arising from their conduct.
On the other hand, however, and having regard to the fact that
customary international
law is derived from the actions of states in
their relations with one another, it may be that states would be more
willing to accept
immunity being withdrawn or attenuated in relation
to claims that sound in monetary terms, than they would to agree to
permit their
high-ranking office holders and officials to be
prosecuted in other national courts. But as I have said no authority
to which we
were referred drew any distinction between the two
situations or suggested that an international crimes exception was
accepted
in either situation. Professor O’Keefe argues
persuasively that there is little likelihood of the acceptance of
such an exception
in the foreseeable future.
[59]
[74]
It may be that these considerations will
inform future debate and contribute to the development of customary
international law,
but our task is to assess the state of customary
international law as it stands at the present time and apply it. That
is what
the Constitution requires us to do. While in other areas of
the law the Court’s function includes the development of the
law, in the area of customary international law its task is one of
discerning the existing state of the law, not developing it.
As Lord
Hoffmann said in
Jones
:
[60]
‘
It
is not for a national Court to “develop” international
law by unilaterally adopting a version of that law which,
however
desirable, forward-looking and reflective of values it may be, is
simply not accepted by other states.’
Development
of customary international law occurs in international courts and
tribunals, in the contents of international agreements
and treaties
and by its general acceptance by the international community of
nations in their relations with one another as to
the laws that
govern that community. However tempting it may be to a domestic court
to seek to expand the boundaries of customary
international law by
domestic judicial decision, it is not in my view permissible for it
to do so.
[75]
The ICC itself has affirmed that the
Arrest
Warrant
case correctly reflects
customary international law in respect of the immunity
ratione
personae
of heads of state. In the
DRC
case concerning President Al Bashir
[61]
it said:
‘
At
the outset, the Chamber wishes to make it clear that it is not
disputed that under international law a sitting Head of State
enjoys
personal immunities from criminal jurisdiction and inviolability
before national Courts of foreign States even when suspected
of
having committed one or more of the crimes that fall within the
jurisdiction of the Court.’
In
support of this statement the ICC cited the
Arrest
Warrant
case.
[76]
The
Arrest
Warrant
case specifically recognised
that there are exceptions to this immunity. The decision mentioned
four.
[62]
The first three were that there is no immunity before a domestic
Court; no immunity if it is waived by the State they represent;
and
no immunity after they demit, or are removed from, office. The fourth
bears upon the present case. The ICJ recognised that
an incumbent of
an office entitled to immunity
ratione
personae
‘may be subject to
criminal proceedings before certain international criminal Courts,
where they have jurisdiction’.
It mentioned various possible
examples of which the ICC was one. The tribunals in question were
those the founding statutes of
which excluded such immunity as a
defence or ground for moderating sentence. Does this provide the
exception for which SALC contends?
It has the support of at least one
of the commentators cited by SALC.
[63]
But another equally eminent commentator cited by the Government
disagrees.
[64]
No one so far as I can see claims that the matter has been clearly
resolved as a matter of customary international law.
[77]
There is a difference between saying that
an international tribunal, having jurisdiction and constituted on
terms that specifically
exclude reliance on any principles of
immunity, provides an exception to the customary international law
rule that heads of state
enjoy immunity
ratione
personae
, and saying that a national
court asked to provide assistance to that international tribunal is
likewise not bound by the customary
international law rule. It is the
latter proposition with which we are concerned. And it is of great
importance that in two instances
in dealing with the arrest and
surrender of President Al Bashir, the ICC did not found its decisions
on that proposition. Instead
it held that President Al Bashir does
not enjoy any such immunity, because the Security Council removed it
by way of Resolution
1593 (2005).
[78]
Sudan is not a party to the Rome Statute.
It has not therefore undertaken any obligations in relation to the
ICC. By contrast a
state that is a party to the Rome Statute is bound
by its terms. As those include, in Article 27, an express provision
precluding
reliance on immunity it is accepted that party states
waive any rights to immunity that their own citizens might otherwise
have
enjoyed. But the position is different in respect of
non-parties. Here the starting point must be that in terms of Article
34 of
the Vienna Convention on the Law of Treaties
[65]
a treaty such as the Rome Statute cannot impose obligations on states
that are not parties to the treaty and have not consented
to the
imposition of such obligations.
[79]
The ICC recognised this difficulty in the
DRC
case.
It also accepted that in the ordinary course the only means of
avoiding the difficulty was by invoking Article 98 of the Rome

Statute, which provides for the ICC to secure the cooperation of the
third party state (in this case, Sudan) in waiving immunity
and
giving consent for the surrender of the person concerned. The papers
do not reveal whether the ICC has made approaches to Sudan
to secure
a waiver or consent, but given that President Al Bashir is the head
of state in that country it is obvious at a practical
level that it
would not be forthcoming.
[80]
In
DRC
the ICC held that requiring the DRC to arrest and surrender President
Al Bashir did not create an inconsistency between its obligations

under the Rome Statute and its international obligation to respect
the immunities of President Al Bashir as a head of state. But
its
reasoning was not based on the existence of an international crimes
exception to head of state immunity. It was based entirely
on
Security Council Resolution 1593 (2005). The ICC reasoned as
follows:
[66]
‘
The
Chamber does not consider that such inconsistency arises in this
case.
This is so
because by issuing Resolution 1593(2005) the SC[Security Council]
decided
that the “Government of Sudan […]
shall
cooperate fully with and provide necessary assistance to the Court
and the Prosecutor pursuant to this resolution”.
Since Immunities attached to Omar Al Bashir are a procedural bar from
prosecution before the Court, the cooperation envisaged in
said
resolution was meant to eliminate any impediment to the proceedings
before the Court, including the lifting of immunities.
Any other
interpretation would render the SC decision requiring that Sudan
“cooperate fully” and “provide any
necessary
assistance to the Court” senseless. Accordingly, the
“
cooperation
of that third party State [Sudan] for the waiver of the immunity”
as required under the last sentence of article 98(1) of
the Statute,
was already ensured by the language used in paragraph 2 of the SC
Resolution 1593(2005). By virtue of said paragraph,
the SC implicitly
waived the immunities granted to Omar Al Bashir under international
law and attached to his position as a Head
of State.’ (My
emphasis added in italics. Underlined words emphasised in the
original.)
[81]
In its decision in relation to President Al
Bashir’s visit to South Africa referred to earlier
[67]
the ICC repeated this justification for its view that South Africa
was not barred by President Al Bashir’s status as a head
of
state from arresting him and causing him to be surrendered to the
ICC. It said:
[68]
‘
In
conclusion, the Republic of South Africa is already aware of its
obligation under the Rome Statute to immediately arrest Omar
Al
Bashir and surrender him to the Court,
as
it is aware of the Court’s explicit position … that the
immunities granted to Omar Al Bashir under international
law and
attached to his position as a Head of State have been implicitly
waived by the Security Council of the United Nations by
resolution
1593(2005) …
’(My
emphasis)
[82]
These decisions involved a departure by the
ICC from its earlier decision holding that there is an international
crimes exception
to head of state immunity when a person is charged
with international crimes under the Rome Statute.
[69]
In
Malawi
[70]
the ICC concluded that:
‘…
[T]he Chamber finds that customary
international law creates an exception to Head of State immunity when
international Courts seek
a Head of State’s arrest for the
commission of international crimes.’
By
contrast on the same question Professor Crawford
[71]
(since 2015 a judge of the ICJ) wrote, in respect of the ICC, that
state parties had consented to the waiver of immunity in respect
of
their nationals by virtue of their agreement to Article 27, but:
‘
The
entitlement of nationals of non-parties to personal immunity is not
obviously eroded, particularly in the light of Article 98(1)
of the
ICC statute.’
He
noted that the Pre-Trial Chamber held a firm opinion to the contrary,
but that was written before the Chamber gave a different

justification for its views in regard to President Al Bashir and
immunity. Its current position appears to accept that President
Al
Bashir would enjoy head of state immunity, were it not, so it
believes, for the fact that it has been waived by the Security

Council.
[83]
It would serve little purpose to
trawl through the academic literature on the question as the
commentators are divided, although
one senses a desire on the part of
many of them that the problem should be resolved by recognising an
exception to the rule of
head of state immunity. Were it simply a
matter for me to determine I would be inclined to share the view
expressed by Dr Weatherall
[72]
that:
‘…
[T]he
State is not an abstract entity but a community of human beings.
Protection of international criminals … from international

scrutiny under the guise of State dignity is an affront to the
citizens against whom grave violations of human rights are
perpetrated.
As State sovereignty is increasingly viewed to be
contingent upon respect for certain values common to the
international community,
it is perhaps unsurprising that bare
sovereignty is no longer sufficient to absolutely shield High
officials from prosecution for
jus
cogens
violations.’
as
well as that of the U S District Court
[73]
he quotes:
‘
These
precedents instruct that resort to head-of-state and diplomatic
immunity as a shield for private abuses of the sovereign’s

office is wearing thinner in the eyes of the world and waning in the
cover of the law. The prevailing trend teaches that the day
does come
to pass when those who violate their public trust are called upon, in
this world, to render account for the wrongs they
inflict on
innocents.’
[84]
But the content of customary international
law is not for me to determine and, like Dr Weatherall, I must
conclude with regret that
it would go too far to say that there is no
longer any sovereign immunity for
jus
cogens
(immutable norm) violations.
Consideration of the cases and the literature goes no further than
showing that Professor Dugard is
correct when he says that ‘customary
international law is in a state of flux in respect of immunity, both
criminal and civil,
for acts of violation of norms of
jus
cogens
’.
[74]
In those circumstances I am unable to hold that at this stage of the
development of customary international law there is an international

crimes exception to the immunity and inviolability that heads of
state enjoy when visiting foreign countries and before foreign

national Courts.
[85]
Ordinarily that would mean that President
Al Bashir was entitled to inviolability while in South Africa last
June. But SALC argued
that the position was different as a result of
the enactment of the Implementation Act. I turn to consider that
contention.
T
he
Implementation Act
[86]
Whether the Implementation Act has the
effect of removing the immunity that President Al Bashir would
otherwise enjoy is a matter
of the proper construction of the
Implementation Act. The principles to be followed in that regard are
settled.
[75]
In the present case they are strongly influenced by the fact that we
are dealing with a statute that incorporated an international

agreement into South African law and are required by s 233 of
the Constitution to construe it in a manner consistent with

international law. As international law requires state parties to
international agreements to comply with the obligations they
have
assumed under those agreements, an interpretation of the
Implementation Act that results in South Africa not complying with

its obligations under the Rome Statute is to be avoided if possible.
[87]
We are also obliged by s 39(2) of the
Constitution to interpret the Implementation Act in a way that
promotes the spirit, purport
and objects of the Bill of Rights. There
are a number of provisions of the Bill of Rights that inform its
spirit, purport and objects
in this context. If international crimes
were committed in South Africa they would infringe a number of rights
guaranteed under
the Bill of Rights. Section 11 guarantees the right
to life and we are here concerned with an arrest warrant that charges
the crime
of genocide. The charges of war crimes and crimes against
humanity not only infringe that right but they also infringe the
right
to dignity in s 10 and the right to freedom and security
of the person in s 12.  Section 12(1) explains that this

includes the right not to be deprived of freedom arbitrarily or
without just cause; the right not to be detained without trial;
the
right to be free from all forms of violence from either public or
private sources; the right not to be tortured and the right
not to be
treated in a cruel, inhuman or degrading way. Section 13 guarantees
that no one may be subjected to slavery, servitude
or forced labour
and s14 protects the right to privacy. Then there are the rights to
freedom of religion, belief and opinion; freedom
of expression and
the right to assembly, demonstration and petition.
[88]
Reference to the two arrest warrants show
that the conduct of which President Al Bashir stands accused, and for
which he is said
to be responsible, involves acts that would infringe
all of these rights. It is of course not for us to form or express a
view
on whether the conduct charged occurred or, if it did, his
responsibility for it. But I mention it because it illustrates the
importance
in the context of the interpretation of the Implementation
Act of construing it in a way that accords with and gives effect to
the spirit, purport and objects of the Bill of Rights.
[89]
The starting point in the interpretational
exercise is the long title of the Implementation Act, which describes
its purposes. It
reads that it is an Act:
‘
To
provide for a framework to ensure the effective implementation of the
Rome Statute of the International Criminal Court in South
Africa; to
ensure that South Africa conforms with its obligations set out in the
Statute; to provide for the crime of genocide,
crimes against
humanity and war crimes; to provide for the prosecution in South
African Courts of persons accused of having committed
the said crimes
in South Africa and beyond the borders of South Africa in certain
circumstances; to provide for the arrest of persons
accused of having
committed the said crimes and their surrender to the said Court in
certain circumstances; to provide for co-operation
by South Africa
with the said Court; and to provide for matters connected therewith.’
[90]
Some of these features warrant stressing in
the light of the fact that there is no dispute that President Al
Bashir is subject to
the jurisdiction of the ICC and can be
prosecuted by it for his alleged crimes. He has been stripped of any
immunity when before
the ICC. It is therefore important that the
purpose of the Implementation Act is to provide a framework to ensure
the effective
implementation of the Rome Statute. It is to
ensure
that South Africa conforms to its obligations under the Rome Statute.
In that regard there is no doubting its obligation to endeavour
to
bring President Al Bashir before the ICC for trial. The head of state
immunity claimed for him is only a procedural bar to the
enforcement
of that obligation in this country.
[76]
It is not an immunity that confers impunity for any wrongdoing on his
part.
[91]
Lastly the Implementation Act provides for
the arrest of persons accused of international crimes and their
surrender to the ICC
and for cooperation between this country and the
ICC. Those are powerful objectives. The reason for them appears from
the preamble
where the point is made that ‘millions of
children, women and men have suffered as a result of atrocities which
constitute
the crimes of genocide, crimes against humanity, war
crimes and the crime of aggression in terms of international law’.
As
a result of this and South Africa’s own painful past the
Republic of South Africa is committed to:
‘
*
bringing persons who commit such atrocities to justice, either in a
Court of law
of the Republic in terms of its domestic laws where
possible, pursuant to its international obligations 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 Criminal Court, created by and functioning in terms of
the said Statute; and
*
carrying out its other obligations in terms of the said Statute’.
[92]
The relevant provisions of the
Implementation Act must be read and construed in the light of this
commitment, which as the Constitutional
Court has pointed out, is
constitutionally mandated. The first is s 4(2) which provides:
‘
(2)  Despite
any other law to the contrary, including customary and conventional
international law, the fact that a person—
(a)
is or was a head of State or
government, a member of a government or parliament, an elected
representative or a government official;
or
(b)
being a member of a security service
or armed force, was under a legal obligation to obey a manifestly
unlawful order of a government
or superior, is neither—
(i)
a defence to a crime; nor
(ii)
a ground for any possible reduction of sentence once a person has
been convicted
of a crime.’
[93]
In Dugard,
[77]
it is suggested that this section is an endeavour by the legislature
to ‘cut past’ the controversial issue of immunity
ratione
personae
. I confess to being
unpersuaded. The section is in a part of the Implementation Act
conferring jurisdiction on South African Courts
to try international
crimes in certain circumstances. It would have been absurd and
non-compliant with its international obligations
for South Africa in
such a case to permit the accused to raise immunity either
ratione
personae
or
ratione
materiae
, or obedience to orders, to
avoid conviction or reduce any sentence. In the circumstances the
section paraphrased the provisions
of Article 27(1) of the Rome
Statute and made them applicable in trials for international crimes
in South Africa or, as Professor
du Plessis expressed matters, it
‘trumps’ the immunities that would otherwise attach to
individuals.
[78]
The difficulty lies in taking it further to create in South Africa an
international crimes exception to head of state immunity.

Nevertheless, that does not mean that it is irrelevant to the
interpretational exercise. It is a clear indication that South Africa

does not support immunities when people are charged with
international crimes.
[94]
Recognition of head of state immunity
alongside the provisions of s 4(2) to preclude someone from
being brought to trial in
South Africa would create an anomaly. Under
s 4(3)
(c)
a
South African Court has jurisdiction to try someone for an
international crime if they are present in the territory of the
Republic.
In such a trial it would be no answer for the accused to
raise immunity either
ratione personae
or
ratione materiae
.
But on the argument for the Government this would not matter because
it would be impossible for the accused to be brought before
the Court
in terms of the Criminal Procedure Act 51 of 1977 (CPA). Under the
CPA an accused is brought to Court either by arrest
or
indictment,
[79]
but either procedure would compel the accused to submit to the
criminal jurisdiction of a South African Court, which is inconsistent

with immunity.
[95]
A construction of s 4(2) that would
exclude claims of immunity if a person was being tried before a South
African Court, but
would not exclude immunity in seeking to bring
that person to trial before that Court would in my view be a serious
anomaly. The
ordinary principle of interpretation is that the
conferral of a power conveys with it all ancillary powers necessary
to achieve
the purpose of that power.
[80]
The purpose of the power to prosecute international crimes in South
Africa is to ensure that the perpetrators of such crimes do
not go
unpunished. In order to achieve that purpose it is necessary for the
National Director of Public Prosecutions to have the
power not only
to prosecute perpetrators before our Courts, but, to that end, to
bring them before our Courts. This is also consistent
with the
constitutional requirement that the Implementation Act be construed
in a way that gives effect to South Africa’s
international law
obligations and the spirit, purport and objects of the Bill of
Rights. The construction proffered on behalf of
the Government
emasculates the section in relation to international crimes that were
perpetrated outside the borders of this country
by nationals of other
states. That is a construction that would defeat the purposes of the
Implementation Act. It is not in my
view correct.
[96]
I turn then to the provisions of the
Implementation Act dealing with requests for assistance from the ICC
and, more particularly,
requests for assistance in terms of arrest
warrants issued by the ICC for the purpose of securing the presence
before the Court
of alleged perpetrators of international crimes.
These are in ss 8 to 10 of the Act. Section 8(1) provides that when a
request
is received from the ICC for the arrest and surrender of a
person for whom it has issued a warrant of arrest it must be referred

to the Central Authority. This is defined as the Director-General:
Justice and Constitutional Development, the present incumbent
of
which office is Ms Sindane. The Central Authority must immediately on
receipt of the request forward the documents to a magistrate
who must
endorse the warrant for execution in any part of the Republic.
[81]
That was what occurred in relation to the request in relation to the
first arrest warrant. It was forwarded to the Chief Magistrate,

Pretoria, who endorsed it for execution.
[82]
So far as the record goes that warrant is still extant and operative.
[97]
Section 9(3) provides that any warrant
endorsed under s 8 must be in the form and executed in a manner
as near as possible
to that which is prescribed under the laws
relating to criminal procedure in South Africa. This is the only part
of s 9 that
bears upon the two warrants in this case. The
balance of the section deals with provisional warrants to be sought
pursuant to a
request by the ICC in terms of Article 92 of the Rome
Statute. That is irrelevant for the purposes of this case, save that
in formulating
its claim in the founding affidavit SALC sought to
rely on ss 9(1) and (2). This misconception appears to some
degree to have
coloured the relief sought by SALC. It will be dealt
with below.
[98]
Section 10 deals with the procedures to be
followed before a competent court after arrest for the purposes of
surrender. Within
48 hours of the person’s arrest they must be
brought before the magistrate in whose area of jurisdiction the
arrest took
place. The magistrate then conducts an inquiry in order
to establish whether the warrant applies to the person in question;
whether
the person has been arrested in accordance with the
procedures laid down in domestic law; and whether the person’s
rights
as contemplated in the Bill of Rights have been respected, if,
and to the extent which, they are or may be applicable.
[83]
The inquiry is conducted in the same manner as a preparatory
examination under the CPA.
[84]
If, at the end of the inquiry, the magistrate is satisfied of the
three matters specified in ss (1) and that the person may
be
surrendered to the ICC,
[85]
then they ‘
must
order
that such person be surrendered to the Court and that he or she be
committed to prison pending such surrender.’
[86]
There is no scope for the exercise of any discretion in that regard.
Provided the requirements for surrender are satisfied then
the
magistrate must order surrender.
[99]
These provisions do not mention the issue
of immunity. Nor is it apparent where a claim to immunity could find
its place in the
inquiry contemplated by s 10(1). The inquiry is
expressly confined to the three matters specified and none of those
appear
to involve issues of immunity. Certainly the question whether
the person arrested is the person referred to in the warrant does
not
raise that as an issue. Similarly, whether the person’s arrest
complied procedurally with the requirements for a valid
arrest in
South African domestic law would not raise that issue. When this
difficulty was raised with counsel he suggested that
the inquiry
became relevant when considering whether the arrested person’s
rights in terms of the Bill of Rights had been
respected and referred
to s 12 of the Constitution guaranteeing the right to freedom
and security of the person and s 21
governing freedom of
movement. But, if the Implementation Act provides for a person’s
arrest in those circumstances neither
of those rights is infringed,
or, if they are, the limitation is justified under s 36 of the
Constitution. The argument is
dependent on the premise that such an
arrest would be unlawful because of the existence of immunity. But
that begs the very question
in issue in this case, namely, whether in
relation to an ICC arrest warrant and request for assistance, such
immunity exists.
[100]
It is here that s 10(9) assumes
crucial importance because it deals with the very question of the
relevance of claims to immunity
to the order of surrender. It
provides that:
‘
The
fact that the person to be surrendered is a person contemplated in
section 4(2)
(a)
or
(b)
does not constitute a ground for refusing to issue an order
contemplated in subsection (5).’
The
persons referred to in s 4(2) include a person who ‘is or
was a head of State’. In other words it includes
any person in
the situation of President Al Bashir. So the fact that President Al
Bashir was such a person would not have provided
a ground for a
magistrate not to make an order for his surrender in terms of
s 10(5).
[101]
In an endeavour to circumvent what appears
to be a plain provision the Government argued that s 10 deals
only with the surrender
of persons who had already been arrested
under s 9 and that the latter section was silent on the question
of immunity. But
that creates an absurdity. If it were correct, then
any person entitled on any basis to claim immunity would challenge
their arrest
by way of an interdict
de
libero homine exhibendo
(the equivalent
of a
habeas corpus
application
in other jurisdictions) and demand their release. So the only people
who could be brought before a magistrate under
s 10 would be
those who had no grounds for claiming immunity. But then s 10(9)
would serve no purpose at all. It would
be entirely redundant,
because there would be no possible situation in which a person
brought before the magistrate under s 10(1)
would be a person
referred to in ss 4(2)
(a)
or
(b)
.
Needless to say such an interpretation is to be avoided.
[102]
Counsel contended that to construe the
Implementation Act in the manner suggested by SALC involved a tacit
repeal or amendment of
s 4(2) of DIPA, because that was the
prior statute and until the Implementation Act was passed would have
served to afford
President Al Bashir immunity. He submitted that this
is not lightly to be inferred.
[87]
That is no doubt correct, but there is another principle that emerges
from the cases on this point. It was referred to by Marshall
J in
Gorham v Luckett
:
[88]
‘…
if
this last Act professes, or manifestly intends, to regulate the whole
subject to which it relates, it necessarily supersedes
and repeals
all former acts, so far as it differs from them in its
prescriptions.’
This
aptly describes the situation with which we are concerned. DIPA is a
general statute dealing with the subject of immunities
and privileges
enjoyed by various people, including heads of state. The
Implementation Act is a specific Act dealing with South
Africa’s
implementation of the Rome Statute. In that special area the
Implementation Act must enjoy priority. I would not,
however, use the
language of repeal or amendment. It is rather more an example of the
application of the related principle in the
converse situation
embodied in the maxim
generalia
specialibus non derogant
(general words
and rules do not derogate from special ones).
[89]
Where there is legislation dealing generally with a topic and, either
before or after the enactment of that legislation, the legislature

enacts other legislation dealing with a specific area otherwise
covered by the general legislation, the two statutes co-exist
alongside one another, each dealing with its own subject matter and
without conflict. In both instances the general statute’s
reach
is limited by the existence of the specific legislation. So DIPA
continues to govern the question of head of state immunity,
but the
Implementation Act excludes such immunity in relation to
international crimes and the obligations of South Africa to the
ICC.
[103]
I conclude therefore that when South Africa
decided to implement its obligations under the Rome Statute by
passing the Implementation
Act it did so on the basis that all forms
of immunity, including head of state immunity, would not constitute a
bar to the prosecution
of international crimes in this country or to
South Africa cooperating with the ICC by way of the arrest and
surrender of persons
charged with such crimes before the ICC, where
an arrest warrant had been issued and a request for cooperation
made.
[90]
I accept, in the light of the earlier discussion of head of state
immunity, that in doing so South Africa was taking a step that
many
other nations have not yet taken. If that puts this country in the
vanguard of attempts to prevent international crimes and,
when they
occur, cause the perpetrators to be prosecuted, that seems to me a
matter for national pride rather than concern. It
is wholly
consistent with our commitment to human rights both at a national and
an international level. And it does not undermine
customary
international law, which as a country we are entitled to depart from
by statute as stated in s 232 of the Constitution.
What is
commendable is that it is a departure in a progressive direction.
[104]
It is also important to note that this
conclusion accords with the understanding of Government as to its
obligations under and in
terms of the Rome Statute and the
Implementation Act. As noted above when South Africa received the
first arrest warrant and request
for assistance from the ICC, the
Central Authority acted in terms of s 8(1) of the Implementation
Act and forwarded it to
the Chief Magistrate, Pretoria, who endorsed
it for execution in any part of the Republic. When President Zuma was
inaugurated
and an invitation was extended to President Al Bashir to
attend the inauguration, Sudan enquired whether he would be liable to
arrest if he attended, and the answer was in the affirmative. The
then Director-General of the Department of International Relations

and Cooperation issued a public statement quoted in the papers, that:
‘
If
today, President al Bashir landed in terms of the provision [of the
Rome Statute], he would have to be arrested.’
There
are several statements in the papers and the literature with which we
have been furnished that indicate that there have been
other
occasions, such as the funeral of the late President Mandela, that
President Al Bashir did not attend, because he would have
been liable
to arrest and surrender to the ICC had he done so. It is plain from
this that, save for the circumstances of the present
case, South
Africa has hitherto complied meticulously with its obligations under
the Rome Statute in respect of President Al Bashir.
[105]
That brings me back to the point made in
paragraphs 11 to 16 and 24 of this judgment that the arguments with
which we have been
confronted were not those on which the case was
conducted in the Court below. Nor, and this is the important point,
did they reflect
the approach of the Government to the issues. That
emerges from the affidavits of Ms Sindane and, in particular, of Dr
Lubisi.
Ms Sindane explained that the Government’s reasons for
not seeking to arrest President Al Bashir were based on the terms of

the hosting agreement and the ministerial proclamation. And Dr Lubisi
explained that ‘Cabinet collectively appreciated and

acknowledged that the aforesaid decision can only apply for the
duration of the AU Summit’. These statements demonstrated
that
as far as South Africa was concerned this involved a departure from
its commitment to its obligations under the Rome Statute.
We have not
been apprised of the reasons for South Africa departing from those
obligations on this occasion. But, be that as it
may, whilst the
departure from this country’s obligations was unfortunate,
according to the affidavits it was only temporary.
It is perhaps a
pity in those circumstances that the Government chose to pursue the
new arguments, thereby possibly giving the
impression that our
commitment as a nation to the Rome Statute was in question.
Waiver
[106]
We received extensive argument on two
propositions to the effect that, even if the Implementation Act did
not oust President Al
Bashir’s head of state immunity, it had
been waived, either by the Security Council Resolution 1593 (2005)
or, in relation
to the second arrest warrant, by the Genocide
Convention (1948). In view of my conclusion on the effect of the
Implementation Act
it is unnecessary to address these submissions.
The position under the Security Council Resolution is hotly contested
by the commentators
and the limited argument we received on the
Genocide Convention does not give me confidence that we should
express a view on it.
I pass therefore to a consideration of the
relief granted by the High Court and the question of costs.
The
relief
[107]
The relief granted by the High Court is set out in
para 6 above. The matter having been brought and dealt with as
an urgent
application the orders were not as well-tailored to the
contentions being advanced by SALC as mature consideration would
indicate.
A broad statement that conduct was inconsistent with the
Constitution did little to define where the shortcoming lay. Mr
Trengove
SC accepted that even if the appeal failed it was desirable
that the declaratory order be formulated with greater precision. In

my view an appropriate order would have been the following:
‘
The
conduct of the Respondents in failing to take steps to arrest and
detain, for surrender to the International Criminal Court,
the
President of Sudan, Omar Hassan Ahmad Al Bashir, after his arrival in
South Africa on 13 June 2015 to attend the 25
th
Assembly of the African Union, was inconsistent with South Africa’s
obligations in terms of the Rome Statute and section
10 of the
Implementation of the Rome Statute of the International Criminal
Court Act 27 of 2002, and unlawful.’
[108]
The second paragraph of the order directed
the applicants to take reasonable steps to arrest President Al Bashir
without a warrant
in terms of section 40(1)
(k)
of the CPA. I do not think that section
has anything to do with a person charged with international crimes
under the Rome Statute.
It is true that it deals with people who have
committed crimes outside South Africa that would have been an offence
if committed
inside South Africa, which would include international
crimes. But it is qualified by the requirement that the person
arrested
is ‘under any law relating to extradition or fugitive
offenders’ liable to arrest and detention in South Africa. That

is not the position with an arrest under s 10 of the
Implementation Act. That Act is not concerned with extradition, but
with surrender to the ICC. Persons arrested thereunder are not
necessarily fugitive offenders. After all President Al Bashir
continues
to tread the world stage and has made appearances at the UN
and visited China, as well as a number of other states, in his
official
capacity as head of state of Sudan, so he is not a fugitive
offender.
[109]
I am not sure why it was thought necessary
to look to the CPA in regard to the possible arrest of President Al
Bashir. After all
the power to arrest him existed under the
Implementation Act. Furthermore he was not to be arrested without a
warrant, but in terms
of warrants endorsed by a magistrate, one of
which was in existence at the time, although SALC did not know that.
As paragraph
2 of the order sought by SALC and granted by the High
Court was inappropriate, and there is at present no reason to think
that
the existing arrest warrants will not be dealt with in terms of
the Implementation Act and be available to be enforced if President

Al Bashir returns to this country, it should simply be deleted.
Subject to those amendments to the order the appeal should be
dismissed.
Costs
[110]
The amendments to the order do not
represent substantial success for the applicants. While their
arguments in regard to the content
of customary international law as
it applies under DIPA were accepted, the key statute is the
Implementation Act and their arguments
in regard to that were
unsuccessful. SALC have succeeded in establishing important points of
public importance in regard to the
Government’s obligations
under the Rome Statute and the Implementation Act. They should
accordingly have their costs, including
the costs of two counsel.
[111]
The Foundation’s arguments were of
great value in dealing with this case and the emphasis they rightly
placed on the importance
of the Constitution in construing the
statutes under consideration was a valuable insight. In my view they
should also have their
costs including the costs of the application
for admission as amicus curiae and the costs of two counsel.
[112]
As regards the costs incurred by the amici
other than the Foundation and the costs of the Government in opposing
their applications
for admission as amici I have already expressed
the view that the amici should not be penalised for their lack of
success in securing
their admission as amici. The Government must
bear its own costs in relation to these applications, as must the
amici.
Result
[113]
I make the following order:
1
The application for leave to appeal is
granted.
2
The applicants are to pay the costs of that
application such costs to include those consequent upon the
employment of two counsel.
3
The applications by the African Centre for
Justice and Peace Studies, the International Immigration Rights
Initiative, the Peace
and Justice Initiative and the Centre for Human
Rights for admission as amici curiae are dismissed with no order for
costs.
4
The order of the High Court is varied to
read as follows:
‘
1
The conduct of the Respondents in failing to take steps to arrest and
detain, for surrender to the
International Criminal Court, the
President of Sudan, Omar Hassan Ahmad Al Bashir, after his arrival in
South Africa on 13 June
2015 to attend the 25
th
Assembly of the African Union, was inconsistent with South Africa’s
obligations in terms of the Rome Statute and section
10 of the
Implementation of the Rome Statute of the International Criminal
Court Act 27 of 2002, and unlawful.
2
The applicant is entitled to the costs of the application on a pro
bono basis.’
5
The appeal is otherwise dismissed.
6
The applicants are to pay the respondent’s
costs of appeal and the costs of the Helen Suzman Foundation,
including the costs
of its application for admission as an amicus,
such costs to include in both instances the costs consequent upon the
employment
of two counsel.
M J D WALLIS
JUDGE OF
APPEAL
Ponnan JA (Lewis JA
concurring)
[114] I have had the privilege of
reading the judgment of Wallis JA, which comprehensively sets out the
facts and issues that call
for adjudication in the appeal. I feel
persuaded to write separately in this matter. Both my approach and
the line that I take
in endeavouring to resolve it are far narrower
than and, in their emphasis, different from that preferred by my
learned colleague.
[115] I agree with Wallis JA that the
content of customary international law is not for us to
determine.
[91]
Nor can I fault his conclusion that:
‘
when South Africa
decided to implement its obligations under the Rome Statute by
passing the Implementation Act it did so on the
basis that all forms
of immunity, including head of State immunity, would not constitute a
bar to the prosecution of international
crimes in this country or to
South Africa cooperating with the ICC by way of the arrest and
surrender of persons charged with such
crimes before the ICC, where
an arrest warrant had been issued and a request for cooperation
made’.
[92]
With due deference to my learned
colleague, that conclusion, I daresay, renders his discussion on
customary international law unnecessary.
I am accordingly hesitant to
endorse Wallis JA’s discussion on customary international law
as also his conclusion on the
subject, the high water mark of which
is:
‘
In those
circumstances I am unable to hold that at this stage of the
development of customary international law there is an international

crimes exception to the immunity and inviolability that heads of
State enjoy when visiting foreign countries and before foreign

national courts.’
[93]
[116] More narrowly then, at the heart
of the appeal lies the supposed clash between s 4(1)
(a)
of the
DIPA and s 4(2) of the Implementation Act. The clash is said to arise
because the former provision recognises an immunity
that the latter
purportedly negates. Harmonising that clash – a clash that
seems to me to be more apparent than real –
necessarily
disposes of the primary issue in the appeal.
[117] Section 4(1)
(a)
of the DIPA
provides:
‘
A head of State is
immune from the criminal and civil jurisdiction of the courts of the
Republic, and enjoys such privileges as
–
(a)
heads of State enjoy in accordance with the rules of
customary international law …’
Supposing there was no further
legislation, President Al Bashir would have enjoyed immunity from
arrest and surrender to the ICC.
But there is further and later
legislation in the form of the Implementation Act, s 4(2) of which
provides:
‘
Despite any other
law to the contrary, including customary and conventional
international law, the fact that a person—
(a)
is or was a head of State or government, a member of a
government or parliament, an elected representative or a government
official;
or
(b)
being a member of a security service or armed force, was
under a legal obligation to obey a manifestly unlawful order of a
government
or superior, is neither—
(i)
a defence to a crime; nor
(ii)
a ground for any possible reduction of sentence once a person has
been convicted
of a crime.’
[118] In my view the apparent conflict
can reasonably be reconciled when one applies the appropriate rules
of statutory construction.
Generally speaking, when the repeal of
former legislation is intended, specific words to that effect are
employed, but this, however
desirable, is not always done, nor is it
absolutely necessary. For, as Kotze AJA observed in a separate
concurring judgment in
New Modderfontein Gold Mining Co v
Transvaal Provincial Administration
1919 AD 367
at 397:
‘
There are many
illustrations in the books of the repeal by implication of earlier
statutes by later ones, for subsequent legislation
repeals previous
inconsistent legislation, whether it expressly declares such repeal
or not. Such an implied repeal will arise
wherever the contents and
operation of a later Act are repugnant to or cannot be harmonized
with those of an earlier one . . .’
But repeal by implication is not
favoured. An interpretation of apparently conflicting statutory
provisions which involve the implied
repeal of the earlier by the
later ought not to be adopted unless it is inevitable (
Durban
Corporation & another v R
1946 NPD 109
at 115). Any
reasonable construction which offers an escape from that is more
likely to be in consonance with the real intention
of the Legislature
(
R v Tucker
1953 (3) SA 150
(A) at 162). As it was put in
Wendywood Developments (Pty) Ltd v Rieger & another
1971
(3) SA 28
(A) at 38:
‘
It is necessary to
bear in mind a well-known principle of statutory construction,
namely, that statutes must be read together and
the later one must
not be so construed as to repeal the provisions of the earlier one,
unless the later statute expressly alters
the provisions of the
earlier one or such alteration is a necessary inference from the
terms of the later statute.’
[119] I can draw no such inference in
this case particularly when regard is had to the nature, purpose and
background of the Implementation
Act. The preamble to the
Implementation Act records that ‘throughout the history of
human-kind, millions of children, women
and men have suffered as a
result of atrocities which constitute the crimes of genocide, crimes
against humanity, war crimes and
the crime of aggression in terms of
international law.’ It commits South Africa to ‘bringing
persons who commit such
atrocities to justice’ either in our
own courts, or, in accordance with the principle of complementarity,
in the ICC. Section
3 lists the objects of the Implementation Act as
being, amongst others to: ensure that the Rome Statute is effectively
implemented
in South Africa; ensure that South Africa conforms with
its obligations under the Rome Statute; and, enable the Republic to
cooperate
with the ICC by inter alia the surrender of suspects for
prosecution before the ICC. Section 4(1) provides that any person who
commits any of the international crimes is guilty of an offence and
liable to conviction and punishment. Section 4(3) vests our
courts
with universal jurisdiction over the prosecution of all international
crimes, wherever they may be committed, provided only
that the
accused is present in the Republic.
[120] Sections 8, 9 and 10 of the
Implementation Act govern the manner in which an ICC request for the
arrest of a suspect must
be implemented. They do so in mandatory
terms. Section 8 caters for an ICC request for the arrest and the
surrender of a suspect.
Section 8(1) says that the request ‘must’
be referred to the central authority, namely, the Director-General of
Justice.
Section 8(2) requires the central authority immediately on
receipt of that request to forward it to a magistrate who ‘must’

endorse the warrant of arrest for execution. That has happened here
in relation to one of the two warrants. Section 9(3) says that
a
warrant endorsed in terms of s 8  ‘must’ be in a
form and be executed in a manner as near as possible to that

prescribed for domestic warrants of arrest in South Africa.
[121] Section 10 then comes into play –
subsection 1 provides that the suspect ‘must’ be brought
before a magistrate
within 48 hours, who ‘must’ hold an
inquiry to determine: first, whether the warrant applies to the
suspect; second,
whether the suspect has been arrested in accordance
with our domestic law, and third, whether the suspect’s
constitutional
rights have been respected. According to s 10(5), if
the magistrate is satisfied that the three requirements have been met
and
that the suspect may be surrendered to the ICC, he or she ‘must’
order that the suspect be surrendered to the ICC. Tellingly,
these
provisions leave no room for the suspect to raise any immunity claim
or for the magistrate to inquire into and determine
such a claim.
[122] Finally, there is s 10(9) of the
Implementation Act, which provides:
‘
The fact that the
person to be surrendered is a person contemplated in section 4(2)
(a)
or
(b)
does not
constitute a ground for refusing to issue an order contemplated in
subsection (5).’
There is no imperfection in the language
of this provision. Its meaning is clear and unambiguous. It applies
to any person contemplated
in s 4(2)
(a)
or
(b)
, which
includes a sitting or former head of State. Accordingly, the fact
that the suspect is a sitting or former head of State
does not
constitute a ground for refusing an order contemplated in s 10(5) –
that is an order that the suspect be surrendered
to the ICC.
Recognition of head of State immunity alongside the provisions of
s 4(2) to preclude someone from being brought
to trial in South
Africa would create an intolerable anomaly. In terms of s 4(2) of the
Implementation Act, a head of State may
be arrested and prosecuted
before South African domestic courts. The same head of State may be
prosecuted before the ICC in terms
of Article 27 of the Rome Statute.
But, when the ICC requests South Africa to arrest and surrender that
head of State to the ICC
for prosecution, it would be precluded from
doing so by virtue of the suspect’s immunity. The immunity
would not protect
him against arrest and prosecution in South Africa
but inexplicably protects him from an arrest in South Africa for
surrender to
the ICC.
[123] The Legislature has thus made a
clear choice in s 10(9) to negate the head of State immunity that
might otherwise have stood
in the way of the arrest and surrender of
President Al Bashir. This is not to suggest that s 4(1)
(a)
of
the DIPA has in any way become obsolete or redundant by virtue of the
enactment of the Implementation Act. Both enactments address
the
matter in a slightly different manner. In my view, s 4(1)
(a)
of
the DIPA falls to be read subject to the provisions of the
Implementation Act. Or to put it another way, s 4(1)
(a)
of the
DIPA only finds application insofar as the Implementation Act does
not. Thus the immunity contemplated by s 4(1)
(a)
the DIPA can
only be validly invoked if it is not in conflict with the
Implementation Act. The Legislature has shown, through the

Implementation Act, in what respects the more general immunity
conferred by s 4(1)
(a)
of the DIPA is to be excluded. Any
other construction would mean that the provisions of the
Implementation Act to which I have
referred must simply be ignored.
Accordingly, s 4(1)
(a)
of the DIPA continues to govern head of
State immunity unless such immunity is excluded by the operation of
the Implementation Act.
So construed, s 4(1)
(a)
of the DIPA
and s 4(2) of the Implementation Act can stand side by side.
[124] The issues raised are of
considerable constitutional and public importance. On any reckoning,
even the rather more discrete
point of statutory interpretation
adopted in this judgment, the matter is appealable.
[94]
For the rest, I agree with the reasoning and orders proposed by
Wallis JA.
_________________
V M Ponnan
Judge of Appeal
Appearances
For applicants:
J J Gauntlett SC (with him F B Pelser and L Dzai)
Instructed by: State Attorney, Pretoria and Bloemfontein.
For respondent:    W H Trengove SC (with him M du
Plessis, I Goodman and H Rajah)
Instructed by: Webber Wentzel, Johannesburg
Webbers Attorneys, Bloemfontein.
For first amicus curiae:  David Unterhalter SC (with him C
Steinberg, A Coutsoudis and N Muvangua)
Instructed by: Webber Wentzel, Johannesburg
Symington & De Kok, Bloemfontein
For applicants for admission
as second and third amici curiae: G M Malindi SC (with him Nicole
Lewis)
Instructed by: Lawyers for Human Rights Law Clinic, Johannesburg
Webbers Attorneys, Bloemfontein
For applicants for admission
as fourth and fifth amici curiae: Jason Brickhill
Instructed by: Legal Resources Centre,
Johannesburg
Honey Attorneys, Bloemfontein
[1]
Preamble to the Rome Statute. The Statute
operates in terms of the principle of complementarity under which
international crimes
should in the first instance be prosecuted in
national Courts and before the ICC if national Courts are unable or
unwilling to
do so.
National
Commissioner of Police v South African Human Rights Litigation
Centre & another
(CCT 02/14)
[2014] ZACC 30
;
2015
(1) SA 315
(CC) para 30. Dapo Akande ‘The Effect of Security
Council Resolutions and Domestic Proceedings on State Obligations to

Cooperate with the ICC’ (2012) 10
Journal
of International Criminal Justice
299
at 302.
[2]
Decision following the Prosecutor’s request
for an order further clarifying that the Republic of South Africa is
under the
obligation to immediately arrest and surrender Omar Al
Bashir ICC-02/05-01/09 Date 13 June 2015. In argument counsel for
the
Government suggested that this judgment was given summarily and
late at night, likening it to an unopposed application in a motion

Court. That characterization was unjustified. A reading of the
judgment shows that it was only delivered after a consultation

between the ICC and the Government of South Africa under article 97
of the Rome Statute.
[3]
GN 470, GG 38860, 5 June 2015.
[4]
Emphasis added.
[5]
Oudekraal Estates (Pty) Ltd v City of Cape
Town &
others (41/2003)
[2004]
ZASCA 48
;
2004 (6) SA 222
(SCA) para 26;
MEC
for Health, Eastern Cape & another v Kirland Investments (Pty)
Ltd t/a Eye & Lazer Institute
[2014]
ZACC 6)
;
2014 (3) SA 481
(CC) paras 65-66 and 88-90.
[6]
The African Centre for Justice and Peace Studies
and The International Refugee Rights Initiative applied jointly to
be admitted
as second and third amici respectively. The Peace and
Justice Initiative and the Centre for Human Rights applied jointly
to be
admitted as fourth and fifth amici respectively.
[7]
Rule 16(8) provides that an amicus is limited to
the record on appeal and may not add thereto.
[8]
Janse van Rensburg NO & another v Minister
of Trade and Industry & another NNO
(CCT13/99)
[2000] ZACC 18
;
2001
(1) SA 29
(CC) para 9.
[9]
President, Ordinary Court Martial, &
others v Freedom of Expression Institute & others
(CCT5/99)
[1999] ZACC 10
;
1999 (4) SA 682
(CC) para 8 and
JT
Publishing (Pty) Ltd & another v Minister of Safety and Security
& others
(CCT49/95)
[1996] ZACC
23
;
1997 (3) SA 514
(CC) para 15.
[10]
Qoboshiyane NO & others v Avusa Publishing
Eastern Cape (Pty) Ltd & others
(864/2011)
[2012] ZASCA 166
;
2013 (3) SA 315
(SCA) para 5;
City
of Tshwane Metropolitan Municipality and Others v Nambiti
Technologies (Pty) Ltd
(20580/2014)
2015 ZASCA 167:
[2016] 1 All SA 332
(SCA)
para
6.
[11]
Van Rensburg v Van Rensburg & andere
1963
(1) SA 505
(A) at 510 A-C. The approach has been endorsed by the
Constitutional Court.
CUSA v Tao Ying
Metal Industries & others
(CCT
40/07)
[2008] ZACC 15
;
2009 (2) SA 204
(CC) para 68.
[12]
Fischer & another v Ramahlele
& others (203/2014)
[2014] ZASCA 88
;
2014 (4) SA 614
(SCA) paras
13 and 14.
[13]
The rule reads as follows:
‘
Admission as
amicus
(1) Subject to this rule,
any person interested in any matter before the Court may, with the
written consent of all the parties
in the matter before the Court
given not later than the time specified in subrule (5), be admitted
therein as an amicus curiae
upon such terms and conditions and with
such rights and privileges as may be agreed upon in writing with all
the parties before
the Court or as may be directed by the President
in terms of subrule (3).
Admission by consent
(2) The written consent
referred to in subrule (1) shall, within 10 days of it having been
obtained, be lodged with the registrar
and the amicus curiae shall,
in addition to any other provision, comply with the times agreed
upon for the lodging of written
argument.
Amendment of consent
(3) The President may
amend the terms, conditions, rights and privileges agreed upon in
terms of subrule (1).
Application to be admitted
(4) If the written consent
referred to in subrule (1) has not been secured, any person who has
an interest in any matter before
the Court may apply to the
President to be admitted therein as an amicus curiae, and the
President may grant such application
upon such terms and conditions
and with such rights and privileges as he or she may determine.
Time for application
(5) An application
pursuant to the provisions of subrule (4) shall be made within one
month after the record has been lodged with
the registrar.
Format
(6) An application to be
admitted as an amicus curiae shall-
(a)
briefly describe the interest of the amicus
curiae in the proceedings;
(b)
briefly identify the position to be adopted by
the amicus curiae in the proceedings;
(c)
set out the submissions to be advanced by the
amicus curiae, their relevance to the proceedings and his or her
reasons for believing
that the submissions will be useful to the
Court and different from those of the other parties.
Argument
(7)
(a)
An amicus
curiae shall have the right to lodge written argument, provided that
such written argument does not repeat any matter
set forth in the
argument of the other parties and raises new contentions which may
be useful to the Court.
(b)
The heads of argument of an amicus curiae shall
not exceed 20 pages unless a judge, on request, otherwise orders.
Limitations
(8) An amicus curiae shall
be limited to the record on appeal and may not add thereto and,
unless otherwise ordered by the Court,
shall not present oral
argument.
Filing of heads
(9) An order granting
leave to be admitted as an amicus curiae shall specify the date of
lodging the written argument of the amicus
curiae or any other
relevant matter.
Costs
(10) An order of the Court
dealing with costs may make provision for the payment of costs
incurred by or as a result of the intervention
of the amicus
curiae.’
[14]
The Constitutional Court has held in respect of its similarly worded
rules governing admission as an amicus (Rule 10) that consent
alone
is not sufficient and an application must also be made to the Chief
Justice.
Ex parte Institute for Security Studies: In re S v
Basson
(CCT30/2003)
[2005] ZACC 4
;
2006 (6) SA 195
(SCA) paras 6
to 8. Although Harms
Civil Procedure in the Supreme Court
(looseleaf) C16-1 (Issue 51) says that this is equally
applicable in the SCA that does not accord with the practice in this
Court.
[15]
This is a material difference from the Constitutional Court rule,
which does not limit the length of the written submissions
of an
amicus. Also in that Court it is the Chief Justice who determines
whether an amicus is permitted to make oral submissions,
although in
practice it is understood that the entire Court has input in that
decision. Historically the Constitutional Court
has been generous in
permitting oral representations by amici. Van Loggerenberg and
others
Erasmus Superior Court Practice
(2 ed, looseleaf) Vol
1, B1-30 (Original Service, 2015). In this Court it is plain that
the Court constituted to hear the appeal
decides whether the amicus
may make oral submissions.
[16]
Compare
Children's
Institute v Presiding Officer, Children's Court, Krugersdorp, &
others
(CCT 69/12)
[2012] ZACC 25
;
2013 (2) SA 620
(CC). That dealt with rule 16A in the Uniform Rules
of Court, which does not contain a provision that an amicus is
confined to
the record on appeal. In the Constitutional Court an
amicus is confined to the record on appeal (Rule 10(8)) subject to
the right
in terms of rule 31 to submit additional facts that are
common cause or otherwise incontrovertible or are of an official,
scientific
technical or statistical nature and capable of easy
verification. The SCA has a limited power to permit the leading of
additional
evidence on appeal, but the Court has not had to consider
whether that power can be exercised on the application of an
amicus.
[17]
In Re: Certain Amicus Curiae Applications:
Minister of Health & others v Treatment Action Campaign &
others
(5) SA 713 (CC) para 5 which
reads:
‘
The role of
an amicus is to draw the attention of the Court to relevant matters
of law and fact to which attention would not otherwise
be drawn. In
return for the privilege of participating in the proceedings without
having to qualify as a party, an amicus has
a special duty to the
Court. That duty is to provide cogent and helpful submissions that
assist the Court. The amicus must not
repeat arguments already made
but must raise new contentions; and generally these new contentions
must be raised on the data
already before the Court. Ordinarily it
is inappropriate for an amicus to try to introduce new contentions
based on fresh evidence.’
[18]
See generally
Koyabe
and Others v Minister for Home Affairs and Others
(CCT 53/08)
[2009] ZACC 23
;
2010 (4) SA 327
(CC) para 80 where it is
stated that:
‘
Amici curiae
have made and continue to make an invaluable contribution to this
Court's jurisprudence. Most, if not all, constitutional
matters
present issues, the resolution of which will invariably have an
impact beyond the parties directly litigating before
the Court.
Constitutional litigation by its very nature requires the
determination of issues squarely in the public interest,
and insofar
as amici introduce additional, new and relevant perspectives,
leading to more nuanced judicial decisions, their participation
in
litigation is to be welcomed and encouraged.’
The qualification to their usefulness
must be observed.
[19]
I have already drawn attention to the fact that
rule 16 makes no provision for such opposition so that there was
nothing untoward
in the Deputy President making an order on the
application as it stood.
[20]
The Preamble to the Rome Statute contains the
following: ‘Emphasising that the International Criminal Court
established
under this statute shall be complementary to national
criminal jurisdictions’.
[21]
Article 68 provides for victims and witnesses to
be protected and to participate in proceedings before the ICC.
[22]
Article 75 provides for the creation of a trust
fund for the purpose of making reparations to victims and their
families.
[23]
Convention on the Prevention and Punishment of
the Crime of Genocide. Adopted by the General Assembly of the United
Nations on
9 December 1948.
[24]
Footnote 5 supra.
[25]
Dire Tladi ‘The Duty on South Africa to
Arrest and Surrender Al-Bashir under South African and International
Law; Attempting
to make a Collage from an Incoherent Framework’
(2015) 13
Journal of International
Criminal Justice
1027 at 1046 suggests
that the reference in Article VIII.1 to Articles V and VII of the
OAU General Convention on the Privileges
and Immunities of the AU
incorporates the immunities of heads of state and other
representatives of states in the hosting agreement
and the
proclamation. Counsel for the Government did not pursue such an
argument, which ignores that these articles are only
mentioned in
the context of saying that the members of the Commission and Staff
Members and delegates and other representatives
of
Inter-Governmental Organisations are to enjoy those privileges. It
clearly goes no further than that.
[26]
This constitutionalised what was in any event the
legal position.
South Atlantic Islands
Development Corporation Ltd v Buchan
1971
(1) SA 234
(C) at 238C-F.
[27]
These include three permanent members of the UN
Security Council, namely, the United States of America, Russia and
China, and
the world’s largest democracy, India. Sudan is not
a member, although 34 African countries are members. South Africa
was
the first African country to sign the Rome Statute and to accede
to it.
[28]
Akande, fn 1, supra, 301; Aleksandra Dubak
‘Problems Surrounding Arrest Warrants issued by the
International Criminal Court:
A Decade of Judicial Practice’
(2012) 32
Polish Yearbook of
International Law
209 at 220.
[29]
Article 25 of the UN Charter provides that ‘The
Members of the United Nations agree to accept and carry out the
decisions
of the Security Council in accordance with the present
Charter.’
[30]
Akande, fn 1, supra, 301. ICC Decision Pursuant
to Article 87(7) of the Rome Statute on the Failure by the Republic
of Malawi
to Comply with the Cooperation Requests issued by the
Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad
Al
Bashir ICC-02/05-01/09 of 12 December 2011 (
Malawi
)
para 15.
[31]
Paola Gaeta ‘Does President Al Bashir Enjoy
Immunity from Arrest?’ (2009) 7
Journal
of International Criminal Justice
315
at 327-329.
[32]
Michiel Blommestijn  and Cedric Ryngaert
‘Exploring the Obligations for States to Act upon the ICC’s
Arrest Warrant
for Omar Al-Bashir: A Legal Conflict between the Duty
to Arrest and the Customary Status of Head of State Immunity’
(2010)
6 Zeitschrift für Internationale Strafrechtsdogmatik 428
at 438-440.
[33]
Dabo Akande ‘The Legal Nature of Security
Council Referrals to the ICC and its impact on Al Bashir’s
Immunities’
(2009) 7
Journal of
International Criminal Justice
333 at
342.
[34]
Section 232 of the Constitution.
[35]
Section 231 of the Constitution.
[36]
Section 233 of the Constitution.
[37]
Glenister v President of the Republic of South
Africa & others
[2011] ZACC 6
;
2011 (3) SA 347
(CC) para 97.
[38]
National Commissioner of Police v Southern
African Human Rights Litigation Centre & another
[2014]
ZACC 30
;
2015 (1) SA 315
(CC) paras 37 to 40.
[39]
In advancing this contention he echoed the view
consistently taken by the states of the AU that a sitting head of
state enjoys
immunity in the absence of waiver and that President Al
Bashir is accordingly for the present immune from proceedings in
other
countries and before national Courts directed at securing his
arrest and surrender under the two ICC arrest warrants. See the
various resolutions of the AU referred to in footnote 12 of
Malawi
fn
30 supra. See also Asad G Kiyani
‘Al-Bashir & the ICC: The Problem of Head of State
Immunity’ (2013) 12
Chinese
Journal of International Law
467 para
41 which deals with the AU’s approach and says that it is
shared by the Arab League and China.
[40]
James Crawford
Brownlie’s
Principles of Public International Law
8
ed (2012) (
Brownlie
)
at 487-488.
[41]
An action
in rem
against a ship owned by a foreign
sovereign is an example of an indirect impleading of a foreign
sovereign. See
Compania Naviera
Vascongado v SS Cristina
[1938] AC
485
;
[1938] 1 All ER 719
(HL). So is a civil action against an
individual in respect of actions on behalf of a foreign state, where
permitting an action
against the individual would circumvent the
state’s immunity.
Jones v
Ministry of the Interior of the Kingdom of Saudi Arabia (Secretary
of State for Constitutional Affairs intervening); Mitchell
v Al-Dali
[2006] UKHL 26; [2007] 1 AC 270;
[2007] 1 All ER 113 (HL).
[42]
Brownlie
, supra,
493-4.
[43]
For example the Head of Government or the
Minister of Foreign Affairs.
[44]
Case concerning the Arrest Warrant of 11 April
2000 (Democratic Republic of the Congo v Belgium) ICJ Reports 2002,
p. 3;
[2002] ICJ 1
paras 51 and 54 (
Arrest
Warrant
).
[45]
Akande, fn 33 supra at 334.
[46]
See the cases cited in Michael A Tunks,
‘Diplomats or Defendants? Defining the Future of Head-of-State
Immunity’
(2002) 52
Duke Law
Journal
651
at 662-3 and 665-6; Thomas
Weatherall ‘Jus Cogens and Sovereign Immunity: Reconciling
Divergence in Contemporary Jurisprudence’
(2015) 46
Georgetown
Journal of International Law
1151 at
1171-1173.
[47]
Charter of the International Military Tribunal of
Nuremberg, Article 7; Charter of the International Military Tribunal
for the
Far East, Article 6; Statute of the International Criminal
Tribunal for the former Yugoslavia, Article 7, para 2; Statute of

the International Criminal Tribunal for Rwanda, Article 6, para 2;
and Rome Statute of the International Criminal Court, Article
27.
Most of these provisions are quoted in
Prosecutor
v Taylo
r, Decision on Immunity from
Jurisdiction (Charles Taylor) of the Special Court for Sierra Leone,
Case No SCSL/2003-01-I, Appeals
Chamber, 31 May 2004.
[48]
As was held in
Prosecutor
v Taylor
ibid.
[49]
Certain Questions of Mutual Assistance in
Criminal Matters (Djibouti v France
)
,
Judgment,
I.C.J. Reports 2008, p. 177;
[2008] ICJ 4
para 170.
[50]
Jurisdictional Immunities of the State
(Germany v Italy: Greece intervening), Judgment,
I.C.J.
Reports 2012, p.99;
[2012] ICJ 10
paras 81-97.
[51]
R v Bow Street Metropolitan Stipendiary
Magistrate, ex p Pinochet Ugarte (No 3) (Amnesty International
intervening)
[2000] 1 AC 147, [1999] 2
All ER 97 (HL).
[52]
Jones v Ministry of the Interior of the
Kingdom of Saudi Arabia (Secretary of State for Constitutional
Affairs intervening); Mitchell
v Al-Dali
[2006]
UKHL 26; [2007] 1 AC 270; [2007] 1 All ER 113 (HL).
[53]
Lord Bingham of Cornhill para 32 and Lord
Hoffmann para 71.
[54]
Lord Goff of Chieveley citing at 116 the opinion
of Lord Slynn of Hadley in
Pinochet (1)
[1998] 4 All ER 897
(HL) at 913; Lord Millett at 171; and Lord
Phillips of Worth Matravers at 181.
[55]
Brownlie
fn 35
ante.
[56]
Hazel Fox QC and Philippa Webb
The
Law of State Immunity
3ed (2014)
85.
[57]
Al Adsani v The United Kingdom
[2001] ECHR 761
;
(2002)
34 EHRR 11
para 61.
[58]
Kalogeropoulou and Others v Greece and Germany
(2002) 129 ILR 537.
[59]
Roger O’Keefe the Professor of Public
International Law at University College London ‘Symposium on
the Immunity of
State Officials. ‘An “International
Crime” Exception to the Immunity of State Officials from
Foreign Criminal
Jurisdiction: Not Currently, Not Likely’
(2015) 109 AJIL 167.
[60]
Para 63.
[61]
Decision on the Cooperation of the Democratic
Republic of the Congo Regarding Omar Al Bashir’s Arrest and
Surrender to the
Court ICC-02/05-01/09 dated 9 April 2014 (
DRC
)
para 25.
[62]
Para 61.
[63]
Dr Göran Sluiter ‘The Surrender of War
Criminals to the International Criminal Court’ (2003) 25
Loyola of Los Angeles International and
Comparative Law Review
605 at 632. The
proposition is contained in a single bald sentence reading: ‘Also,
the recent judgment by the ICJ in the
Congo-Belgium
case acknowledges, in my view, that
current international law for state and diplomatic immunities are
not applicable to arrests
and surrenders at the request of the ICC.’
[64]
Gaeta, fn 31, 315 especially at 319.
[65]
Vienna Convention on the Law of Treaties, 1969.
[66]
Para 29.
[67]
Footnote 2 supra.
[68]
Para 9 of the Decision.
[69]
Tladi, footnote 25 supra at 1042. The author
regards the earlier decisions as incorrect because they dealt with
the issue as if
Article 98 formed no part of the Rome Statute. So
does Erika De Wet ‘The Implications of President Al-Bashir’s
Visit
to South Africa for International and Domestic Law’
(2015) 13
Journal of International
Criminal Justice
1049 at 1057.
Professor de Wet regards the reasoning in the later decisions as
preferable. In other words she supports the approach
of the removal
of immunity by the Security Council. We were provided with other
material in which the reasoning in the decision
was subjected to
substantial criticism.
[70]
Malawi
paras
37-43 fn 30 supra.
[71]
Brownlie
supra
501.
[72]
Weatherall, fn 41 supra, at 1175.
[73]
Tachiona v Mugabe
169
F Supp 2d 259
, 316-7 (SDNY 2001).
[74]
John Dugard
International
Law: A South African Perspective
4ed
(2011) (Dugard) at 258.
[75]
Natal Joint Municipal Pension Fund v Endumeni
Municipality
[2012] ZASCA 13
;
2012 (4)
SA 593
(SCA) para 18; and
Bothma-Batho
Transport (Edms) Bpk v S Bothma & Seun Transport (Edms) Bpk
[2013] ZASCA 176
;
2014 (2) SA 494
(SCA) para 12.
[76]
Jurisdictional Immunities
para
93; Hazel Fox QC and Philippa Webb, fn 56 supra at 5, 21 and 38-39.
[77]
Dugard fn 68 ante, at 211. This appears in a
chapter written by Professor du Plessis. See also J Dugard and G
Abraham ‘Public
International Law’ 2002
Annual
Survey of South African Law
140 at
165-6; and M du Plessis ‘South Africa’s Implementation
of the ICC Statute: An African Example’ (2007)
5
Journal
of International Criminal Justice
460
at 474.
[78]
Du Plessis ibid.
[79]
In the Magistrates’ Courts arrest and
summons are used but it is inconceivable that international crimes
would be prosecuted
anywhere but in the High Court.
[80]
Middelburg Municipality v Gertzen
1914 AD 544
at 552.
[81]
Section 8(2) of the Implementation Act.
[82]
Tladi, fn 25 supra, 1037.
[83]
Section 10(1) of the Implementation Act.
[84]
Section 10(3) of the Implementation Act.
[85]
This is not an additional matter on which the magistrate must be
satisfied. If the three requirements are present then the person
may
be surrendered to the ICC and the magistrate must so order.
[86]
Section 10(5) of the Implementation Act.
[87]
New Modderfontein Gold Mining Co v Transvaal
Provincial Administration
1919 AD 367
at 400 (
New Modderfontein
);
Kent NO v South African Railways &
another
1946 AD 398
at 405;
Government
of the Republic of South Africa & another v Government of
KwaZulu & another
1983 (1) SA 164
(A) at 200 E-F.
[88]
Gorham v Luckett
6
B Monroe (Ky) 146 at 154 (1845) cited in
New
Modderfontein
at 397 and again in
Springs Town Council v Soonah
1963
(1) SA 659
(A) at 669A-D and quoted in
Mthembu
v Letsela & another
[2000] ZASCA
181
;
2000 (3) SA 867
(SCA) para 28.
[89]
Minister of Defence and Military Veterans v
Motau & others
[2014] ZACC 18
;
2014 (5) SA 69
(CC) para 78;
Sasol
Synthetic Fuels (Pty) Ltd & others v Lambert & others
[2001] ZASCA 133; 2002 (2) SA 21 (SCA).
[90]
My colleague Ponnan JA in his separate judgment says that this
conclusion, which he shares, may render the discussion on customary

international law unnecessary. With respect I do not agree. Until
one reaches the conclusion that under customary international
law
President Al Bashir would ordinarily enjoy immunity a discussion of
the relevant provisions of the Implementation Act is
irrelevant. One
cannot construe the provisions of the Implementation Act as removing
an immunity that does not exist. If there
was no such immunity,
because there is an international crimes exception as contended by
SALC, then the relevant sections of
the Implementation Act merely
reflect the provisions of customary international law and do not
depart from them. That is an entirely
different interpretation from
the one in the body of this judgment and would involve a different
analysis of the Implementation
Act on the footing that it reflected,
not overrode, customary international law.
[91]
Paragraph 84.
[92]
Paragraph 103.
[93]
Paragraph 84.
[94]
Qoboshiyane NO & others v Avusa Publishing
Eastern Cape (Pty) Ltd & others
fn
10 supra.