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[2017] ZAGPPHC 53
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Democratic Alliance v Minister of International Relations and Cooperation and Others (Council for the Advancement of the South African Constitution Intervening) (83145/2016) [2017] ZAGPPHC 53; 2017 (3) SA 212 (GP); [2017] 2 All SA 123 (GP); 2017 (1) SACR 623 (GP) (22 February 2017)

HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Reportable/Not
of interest to other Judges
CASE
NO: 83145/2016
In
the matter between:
DEMOCRATIC
ALLIANCE
Applicant
and
MINISTER
OF INTERNATIONAL RELATIONS
AND
COOPERATION
First
Respondent
MINISTER
OF JUSTICE AND
CORRECTIONAL
SERVICES
Second
Respondent
PRESIDENT
OF THE REPUBLIC
OF
SOUTH
AFRICA
Third
Respondent
SPEAKER
OF THE NATIONAL
ASSEMBLY
Fourth
Respondent
CHAIRPERSON
OF THE NATIONAL COUNCIL
OF
PROVINCES
Fifth
Respondent
SOUTH
AFRICAN LITIGATION
CENTRE
Sixth
Respondent
PROFESSOR
JOHN DUGARD AND
PROFESSOR
GUENAEL
METTRAUX
Seventh
Respondent
AMNESTY
INTERNATIONAL
LIMITED
Eighth
Respondent
PEACE
AND JUSTICE INITIATIVE AND
CENTRE
FOR HUMAN
RIGHTS
Ninth
Respondent
HELEN
SUZMAN
FOUNDATION
Tenth
Respondent
COUNCIL
FOR THE ADVANCEMENT OF THE
SOUTH
AFRICAN
CONSTITUTION
Intervening
Party
Heard:
5 and 6 December 2016
Delivered:
22 February 2017
Coram:
Mojapelo DJP, Makgoka and Mothle JJ
Summary:
International treaty – Rome Statute of the International
Criminal Court – notice of withdrawal in terms of article
127(1)
– Section 231 of the Constitution of the Republic of
South Africa – whether the power of the national executive to
negotiate and sign an international treaty includes the power to
withdraw from such treaty without prior parliamentary approval
–
whether parliamentary approval may be sought after notice of
withdrawal had been delivered to the United Nations.
ORDER
Mojapelo
DJP, Makgoka and Mothle JJ (sitting as a Full Bench and court of
first instance):
1. The notice of withdrawal from the
Rome Statute of the International Criminal Court, signed by the first
respondent, the Minister
of International Relations and Cooperation
on 19 October 2016, without prior parliamentary approval, is
unconstitutional and invalid;
2. The cabinet decision to deliver the
notice of withdrawal to the United Nations Secretary-General without
prior parliamentary
approval, is unconstitutional and invalid;
3. The first, second and third
respondents – the Minister of International Relations and
Cooperation, the Minister of Justice
and Correctional Services and
the President of the Republic of South Africa, are ordered to
forthwith revoke the notice of withdrawal
referred in paragraph 1
above;
4. The first, second and third
respondents are ordered to pay the applicant‘s costs, including
costs consequent upon employment
of two counsel;
5. There is no costs order as between
the intervening applicant, the first, second, third, sixth, ninth and
tenth respondents.
JUDGMENT
THE
COURT
[1]
This case turns on the separation of powers between the national
executive and parliament in international relations and
treaty-making
.
It
calls for a proper interpretation of s 231 of the Constitution of the
Republic of South Africa, 1996 (the Constitution). The
primary
question is whether the national executive‘s power to conclude
international treaties, also includes the power to
give notice of
withdrawal from international treaties without parliamentary
approval. Related to that is an ancillary question
whether it is
constitutionally permissible for the national executive to deliver a
notice of withdrawal from an international treaty
without first
repealing the domestic law giving effect to such treaty. At the heart
of the dispute is the withdrawal of South Africa
from the Rome
Statute of the International Criminal Court (the ICC).
[2]
The litigation history over the ICC has its genesis in the refusal by
the South African government to arrest and surrender to
the ICC, Omar
Hassan Ahmad al- Bashir (President al-Bashir) the President of Sudan,
when he visited the country in June 2015 for
an African Union (AU)
summit. President al-Bashir stands accused of serious international
crimes, and two warrants have been issued
by the pre-trials chamber
of the ICC for his arrest. They all are for war crimes, crimes
against humanity and genocide, all related
to events in the Darfur
region of Sudan. The warrants have been forwarded to member states,
including South Africa, requesting
them to cooperate under the Rome
Statute and cause President al-Bashir to be arrested and surrendered
to the ICC.
[3]
Government‘s failure in this regard led to an urgent
application in this court by South African Litigation Centre (SALC),

in which it sought orders declaring the government‘s failure 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.
Government‘s stance was that President al-Bashir
enjoyed
immunity in terms of international customary law. A Full Bench of
this court eventually granted an order declaring the
government‘s
failure to have President al-Bashir arrested and surrendered to the
ICC to be inconsistent with the Constitution
and unlawful.
[1]
The appeal by the government to the Supreme Court of Appeal was
unsuccessful,
[2]
after which an application for leave to appeal was made to the
Constitutional Court.
[3]
That application, which was scheduled to be heard by the
Constitutional Court on 22 November 2016, has been withdrawn by
government.
Background
facts
[4]
On 19 October 2016, the national executive took a decision to
withdraw from the Rome Statute. Pursuant thereto and on the same
day,
the Minister of International Relations signed a notice of withdrawal
to give effect to that decision and deposited it with
the
Secretary-General of the United Nations. This triggered the process
for South Africa‘s withdrawal. In terms of article
127(1) of
the Rome Statute, the withdrawal of a party state from the Rome
Statute takes effect 12 months after the depositing of
a notice to
that effect. Thus, South Africa would cease to be state party to the
statute in October 2017. Attached to the explanatory
statement is a
lengthy explanation in which the reasons for the withdrawal are set
out. In part, the statement reads:
‘
In 2015, South Africa found
itself in the unenviable position where it was faced with conflicting
international law obligations
which had to be interpreted within the
realm of hard diplomatic realities and overlapping mandates when
South Africa hosted the
30th Ordinary Session of the Permanent
Representatives Committee, the 27
th
Ordinary Session of
the Executive Council and the 25th Ordinary Session of the Assembly
of the African Union ("the AU Summit"),
from 7 to 15 June
2015. South Africa was faced with the conflicting obligation to
arrest President Al Bashir under the Rome Statute,
the obligation to
the AU to grant immunity in terms of the Host Agreement, and the
General Convention on the Privileges and Immunities
of the
Organization of African Unity of 1965 as well as the obligation under
customary international law which recognises the immunity
of sitting
heads of state.
This Act and the Rome Statute of the
International Criminal Court compel South Africa to arrest persons
who may enjoy diplomatic
immunity under customary international law
but who are wanted by the International Criminal Court for genocide,
crimes against
humanity and war crimes and to surrender such persons
to the International Criminal Court. South Africa has to do so, even
under
circumstances where we are actively involved in promoting
peace, stability and dialogue in those countries.‘
[5]
On 20 and 21 October 2016 respectively, the Minister of Justice wrote
identical letters to both the Speaker of the National
Assembly (the
fourth respondent) and the Chairperson of the National Council of
Provinces (the fifth respondent) advising them
of cabinet‘s
decision to withdraw from the Rome Statute, and the reasons therefor.
In those letters, the Minister also stated
his intention to table in
parliament, a bill repealing the Implementation of the Rome of
Statute of the International Criminal
Court Act 27 of 2002 (the
Implementation Act) which is the domestic law giving effect to the
Rome Statute in South Africa.
[6]
On 24 October 2016 the applicant launched an application for direct
access to the Constitutional Court seeking to challenge
the
executive‘s decisions referred to above. It also launched a
substantively identical application in this court, in the

alternative, in the event of the Constitutional Court not granting
direct access to it. On 11 November 2016 the Constitutional
Court
refused the application for direct access on the basis that it was
not in the interest of justice to hear the matter at this
stage. As a
result the applicant fell back on its application in this court. It
seeks orders declaring unconstitutional and invalid:
the notice of
withdrawal and the underlying cabinet decision to withdraw from the
Rome Statute and to deliver the notice to the
Secretary-General of
the United Nations, initiating the withdrawal. Consequentially, the
applicant seeks an order that the first,
second and third respondents
be directed to revoke the notice of withdrawal and to take reasonable
steps to terminate the process
of withdrawal under article 127(1) of
the Rome Statute.
The
parties
[7]
The applicant, the Democratic Alliance (the DA) is a political party
registered in terms of
s 15
of the
Electoral Commission Act 51 of
1996
, and the largest minority party in parliament. It is supported
in the relief it seeks by four non-governmental civil rights
organisations,
namely: the applicant to intervene, Council for the
Advancement of the South African Constitution (CASAC); the sixth
respondent,
South African Litigation Centre (SALC); the joint ninth
respondent, Centre for Human Rights (CHR)
[4]
and the tenth respondent, the Helen Suzman Foundation (HSF) (the
supporting respondents). The seventh and eighth respondents,
Professor John Dugard and Professor Guenael Mettraux, and Amnesty
International Limited, have each filed a notice to abide, and

consequently take no part in these proceedings.
[8]
The first respondent, the Minister of International Relations and
Cooperation (the Minister of International Relations) is the
member
of the national executive responsible for signing and delivering the
impugned notice. The second respondent, the Minister
of Justice and
Correctional Services (the Minister of Justice) is the member of the
national executive responsible for the administration
of the national
legislation that domesticated the Rome Statute. The third respondent,
the President of the Republic of South Africa
(the President) is the
head of the national executive, which, in terms of s 231(1) of the
Constitution, is responsible for negotiating
and signing all
international agreements. For the sake of convenience, we shall refer
to these respondents collectively as ‗government
respondents‘.
Where the context dictates, we shall refer to the individual
government respondents as designated above. The
government
respondents oppose the relief sought by the DA. The fourth and fifth
respondents, respectively the Speaker of the National
Assembly and
the Chairperson of the National Council of Provinces, have filed
notices to abide and are not part of these proceedings.
The
Rome Statute: adoption, signature, ratification and domestication
[9]
The Rome Statute was adopted and signed on 17 July 1998 by a majority
of states attending the Rome Conference, including South
Africa. This
paved the way for the establishment of the ICC. South Africa ratified
the Rome Statute on 27 November 2000. It was
the obligation of states
parties, which signed and ratified the Rome Statute, to domesticate
the provisions of the statute into
their national law to ensure that
domestic law was compatible with the statute. South Africa
accordingly passed the Implementation
Act on 16 August 2002. The
preamble of the Act reads:
‘
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 obligation to do
so when the Republic
became party to the Rome Statute of the
International Criminal Court, or in the event of the national
prosecuting authority of
the Republic declining or being unable to do
so, in line with the principle of complementarity as contemplated in
the Statute,
in the International Criminal Court, created by and
functioning in terms of the said Statute.‘
[10]
Schedule 1 of the Implementation Act creates a structure for the
national prosecution of the international crimes of genocide,
war
crimes, and crimes against humanity, which includes the crime of
apartheid. The overall purpose of the Implementation Act is
to bring
the perpetrators of serious international crimes to justice, in
domestic courts or in the ICC. The Implementation Act
also creates
the domestic legal framework for South Africa‘s cooperation
with the ICC. Section 3(a) of the Implementation
Act provides for the
creation of a framework to ensure that the Rome Statute is
effectively implemented in the country.
Preliminary
issues
[11]
There are four preliminary issues to be disposed of. They are:
urgency and ripeness; CASAC‘s application to intervene;
SALC
and CHR respective applications for condonation; and the DA‘s
joinder of the supporting respondents. They are considered
in turn.
Urgency
and ripeness
[12]
The application was issued on 24 October 2016 on an urgent basis, set
down for 22 November 2016. On 17 November 2016 the Deputy
Judge
President issued directions with regard to time-frames for filing of
further affidavits, CASAC‘s intervention application
and
written submissions. The application was thereafter allocated as a
special motion to be heard by a Full Bench of this division
on 5 and
6 December 2016. That is how we came to be seized of the matter.
Counsel for government respondents did not seriously
press for a
finding that the matter is not urgent. Instead, he argued that the
application is not ripe for judicial intervention.
For these
considerations, the debate as to the urgency of the matter became
somewhat diminished, and of secondary importance. It
should therefore
not detain us further. Suffice it to state that we are satisfied that
the matter is urgent in the sense that the
notice period for
withdrawal from the Rome State has commenced and is running. The
alleged unconstitutional and unlawful act has
been committed and will
remain legally effective. Unless the matter is determined now, the
applicant would not obtain an effective
remedy at any time later, if
the application has merits. What remains of the issue of urgency is
linked to ripeness and will be
dealt with next.
[13]
The related issue - the ripeness of the application - was advanced on
behalf of government respondents. The contention was
that the
application was brought prematurely and should be dismissed on the
basis that it is not ripe for judicial intervention,
because: there
is imminent consideration of the matter by parliament; there are
on-going diplomatic and curial engagement of the
ICC; and the
effective date of the notice of withdrawal is only in October 2017,
and is capable of deferral; and the notice itself
is susceptible to
revocation before it takes effect. Accordingly, so was the argument,
unlawfulness has not yet manifested in a
form which cannot be
corrected. It was also argued that the national executive, had,
through the Minister of Justice, given assurance
that the notice of
withdrawal will be withdrawn or its date of effectiveness deferred,
should parliament not approve the notice
of withdrawal before the
termination in terms of the notice takes effect in October 2017. It
was also argued that any judicial
intervention where a parliamentary
process is underway, would infringe the doctrine of separation of
powers.
[14]
In our view, the issues of ripeness and separation of powers cannot
be considered in isolation. They are directly linked to,
and
intertwined with, the constitutionality of delivering the notice of
withdrawal without prior parliamentary approval. As a result,
whether
the matter is ripe depends on the constitutionality of the notice of
withdrawal. If the notice of withdrawal is unconstitutional,
that is
the end
of
the matter, as this court must declare it unlawful, as enjoined by s
172 of the Constitution. Ngcobo J explained in
Doctors
For Life
.
[5]
'[69] The basic position appears to be
that, as a general matter, where the flaw in the law-making process
will result in the resulting
law being invalid, courts take the view
that the appropriate time to intervene is after the completion of the
legislative process.
The appropriate remedy is to have the resulting
law declared invalid. However, there are exceptions to this
judicially developed
rule or “settled practice”. Where
immediate intervention is called for in order to prevent the
violation of the Constitution
and the rule of law, courts will
intervene and grant immediate relief. But intervention will occur in
exceptional cases, such as
where an aggrieved person cannot be
afforded substantial relief once the process is completed because the
underlying conduct would
have achieved its object.‘ (footnote
omitted.)
[15]
In the present case, we are not concerned with what parliament might
or might not do in future about the bill repealing the
Implementation
Act. The contention is that another arm of government, the executive,
has already breached the separation of powers,
and thus acted
unconstitutionally, by deciding and giving notice of withdrawal in
the manner it has. On that basis alone, this
court is entitled, and
indeed constitutionally enjoined, to enquire into the conduct of the
executive to determine whether it is
constitutionally compliant. We
are therefore entitled to consider the application.
[16]
What is more, it is not permissible for government respondents to
seek to oust the jurisdiction of the court based on the contention

that the notice of withdrawal is capable of being withdrawn or
deferred. As long as it has not been withdrawn or deferred, the

matter is properly before this court. The same applies to possible
diplomatic resolution, which the government argues it may achieve,

before expiry of the 12 months period. The court cannot shirk its
responsibility just because the executive may find another
resolution.
CASAC’s
intervention application
[17]
CASAC applied for leave to intervene as the second applicant. Rule 12
of the Uniform Rules of Court provides:
‘
Any person entitled to join as
a plaintiff or liable to be joined as a defendant in any action may,
on notice to all parties, at
any stage of the proceedings apply for
leave to intervene as a plaintiff or defendant. The court may upon
such application make
such order, including any order as to costs,
and give such directions as to further procedure in the action as to
it may seem meet.’
[18]
In terms of its constitution, CASAC is a voluntary association and a
juristic entity operating as a non-governmental organisation,

established specifically to advance the Constitution by participating
in litigation and advocacy in and on behalf of the public
interest,
among others. It has previously engaged in public interest and
constitutional litigation.
[6]
[19]
CASAC‘s application to intervene is opposed by government
respondents, primarily on the basis of: the lateness of the

application; CASAC‘s supposed election not to intervene when it
proceeded only before the Constitutional Court for direct
access;
inconvenience in terms of further overburdening the already
voluminous papers in an urgent application.
[20]
The test for the intervention of parties in constitutional matters,
such as the present, was stated as follows by the Constitutional

Court in
Independent
Newspapers:
[7]
‘
[18] In
Gory v Kolver NO and
Others (Starke and Others Intervening)
this court held that in a
case involving the validity of a statute an application to intervene
would succeed only if the applicant
had a direct and substantial
interest in the subject matter of the litigation, which in that case
was the validity or otherwise
of the statute and if, in addition, it
was in the interests of justice for the application to be granted. On
that occasion we explained
that, whilst a direct and substantial
interest is a necessary condition for intervention as a party, it is
not always sufficient
ground for granting leave to intervene. The
ultimate test is whether, in a particular case, it is in the
interests of justice to
join or be joined as a party to pending
litigation.’ (footnotes omitted.)
[21]
There is no doubt that CASAC has a direct and substantial interest in
the subject matter of this litigation. The issues raised
in the
application fall comfortably within CASAC's areas of interest: the
interpretation of the Constitution; separation of powers;

international human rights; and the rule of law. CASAC also has
standing in respect of the subject matter in terms of s 38(a) and
(e)
of the Constitution.
[8]
[22]
Regard should also be given to the fact that CASAC is not entirely an
outsider in the current litigation – it having
filed an
application for direct access on the same day as the DA in the
Constitutional Court. Apart from the intervention application
it has
not placed any new facts before this court. The legal challenges it
raises are broadly, similar to those raised by the DA.
And, given the
intervention by the Deputy Judge President referred to earlier, all
the parties have had adequate opportunity to
file their papers.
CASAC‘s contention that there is no risk of ambushing any party
by raising a new issue or seeking new
relief that the parties might
not have had a fair opportunity to consider and comment upon, is a
sound one. On a consideration
of factors mentioned above, CASAC not
only has a direct and substantial interest in the subject of the
present application, but
overall, it is in the interests of justice
to grant leave to it to intervene as the second applicant.
Accordingly, such leave is
granted.
SALC
and CHR’s respective applications for condonation
[23]
Both SALC and CHR applied for condonation for the late filing of
their respective responding affidavits. In terms of the notice
of
motion, the respondents (including SALC and CHR) were to file their
answering affidavits, if any, by 8 November 2016. Their
applications
were opposed by government respondents on the basis of prejudice
.
Government respondents’ prejudice is supposedly as a
consequence of the further truncating of time limits for them to
deliver
their supplementary answering affidavit, among others, in
response to the responding affidavits filed by SALC and CHR.
[24]
SALC served its affidavit on 10 November 2016, two days after the
time-frame stipulated in the notice of motion. Its explanation
for
the two-day delay is that it had mistakenly believed that its
affidavit was only required to be filed on 15 November 2016.
Indeed,
in its notice to abide served on 28 October 2016, it is mentioned
that its affidavit setting out its position would be
filed on 15
November 2016. CHR filed its responding affidavit on 15 November
2016, five court days after the time period stipulated
in the notice
of motion. CHR‘s explanation for the delay is that it had
awaited the outcome of the DA‘s application
for direct access
to the Constitutional Court. It says that the order of the
Constitutional Court dismissing the DA‘s application,
made on
11 November 2016, only came to the attention of its attorneys on 14
November 2016.
[25]
The explanations furnished respectively by SALC and CHR are not
entirely satisfactory. Government respondents have correctly
pointed
out to the paucity of information for the delays. Ordinarily, this
should lead to the refusal of their applications for
condonation.
However, what weighs heavily in favour of granting condonation is the
nature of the constitutional issues implicated
in this application,
on which both parties have advanced helpful submissions. The novelty
and importance of the issues in the case,
as well as the public
interest evoked by the case, are all factors which gravitate towards
granting condonation.
[26]
Besides, the prejudice complained of by government respondents was
rendered largely moot by the intervention of the Deputy
Judge
President on 17 November 2016, when he issued directions for the
further conduct of the matter. As a result, the matter was
set down
two weeks later than the date reflected in the notice of motion, and
government respondents were given the opportunity
to file further
affidavits in response to the supporting respondents’
responding affidavits. Indeed, they responded in detail
to the
substance of the responding affidavits by SALC and CHR. As a result,
they have clearly not suffered any prejudice as they
have been
afforded an opportunity to exercise their right of reply. It also
seems common cause that the responding affidavits by
SALC and CHR are
almost identical to those which they filed in the application for
direct access to the Constitutional Court. As
such, government
respondents had been aware of their submissions well in advance of
the delivery of their responding affidavits
in the present
application. Given these considerations, the inclination is to the
conclusion that it is in the interest
s
of justice to
grant SALC and CHR condonation for the late filing of their
responding affidavits.
Have
the supporting respondents been improperly joined in the application?
[27]
Government respondents objected to the DA‘s joining of the
supporting respondents. Initially, the DA stated that this
had been
done on the basis that they were the respondent (SALC) and
amici
curiae
(the rest of the supporting respondents) in the
application for leave in the Constitutional Court against the
judgment of the Supreme
Court of Appeal in the matter involving
President al-Bashir. Government respondents argued that it was wrong
of the DA to ‘convert’
amici
in another matter
into parties before this court. Only this court, they contended, can
determine whether
amici
should be permitted in separate
proceedings.
[28]
The short answer to that complaint is this: It admits of no debate
that all the supporting respondents have an indubitable
direct and
material interest in the subject matter of this application, given
that SALC, HSF and CHR were involved in the President
al-Bashir case.
SALC initiated the application in this court and was the respondent
on appeal in the Supreme Court of Appeal. HSF
was admitted as an
amicus
in that appeal. CHR and four others applied for
admission as
amici
in that appeal. Although they were refused
admission as
amici
in that court, they were nevertheless
admitted as such by the Constitutional Court in the application for
leave to appeal against
the judgment of the Supreme Court of Appeal.
As stated earlier, that application was withdrawn. CHR and PJI are
thus, in addition,
cited as interested parties as a result of their
admission as
amici
in the withdrawn application.
[29]
Thus, it can safely be assumed that had the DA not cited the
supporting respondents, there would have been applications by
them to
be admitted as
amici curiae
. Alternatively, they could have
brought similar and parallel applications. Thus, either way, this
court would have grappled with
the participation of the supporting
respondents. We therefore take a view the DA was prudent in citing
the supporting respondents.
Therefore, government respondents’
argument of misjoinder has no merit.
The
substantive application and the grounds therefor
[30]
We now turn to the merits of the application. The DA‘s
constitutional challenge, is predicated on the following four

grounds:
(a)  prior parliamentary approval
was required before the notice of withdrawal was delivered to the
United Nations;
(b)  prior repeal of the
Implementation Act was required before the notice of withdrawal was
delivered to the United Nations;
(c)  the delivery of the notice
of withdrawal without prior consultation with parliament was
procedurally irrational; and
(d)  the withdrawal from the Rome
Statute breaches the state‘s obligations in terms of s 7(2) of
the Constitution.
The
issues
[31]
CASAC and each of the supporting respondents supported the DA‘s
arguments on s 231 and on irrationality, although each
approached the
argument from different perspectives. From the DA‘s grounds of
challenge, taken together with those of CASAC
and the supporting
respondents, the following issues can be distilled and summarised for
determination:
(a)  whether prior parliamentary
approval and the repeal of the Implementation Act were required
before a notice of withdrawal
was given (the s 231 argument);
(b)  whether a process of public
participation in parliament should have preceded the lodging of the
notice of withdrawal;
(c)  whether the withdrawal was
procedurally rational;
(d)  if parliamentary approval is
required for the delivery of the notice of withdrawal, whether such
approval may be sought
after the notice of withdrawal had been
delivered;
(e)  whether, if the
process-based grounds succeed, the substantive grounds should
nevertheless be considered; If one issue
is dispositive of the
matter, should other issues be considered?
(f)   whether the withdrawal
was substantively rational;
(g)  whether the state‘s
obligations in terms of s 7(2) of the Constitution precludes the
withdrawal from the Rome Statute
altogether;
(h)  if the application succeeds
on any of the grounds, the just and equitable remedy to be granted;
(i)    Costs.
Prior
parliamentary approval and repeal of the Implementation Act: s 231 of
the Constitution
[32]
The question here is whether the national executive is entitled to
decide on the withdrawal and execute its decision without
the
involvement of the legislature and thereafter seek legislative
approval, as it seeks to do. Secondly, whether it may execute
its
decision without the repeal of the Implementation Act. In answering
the above questions the point of departure must inevitably
be s 231
of the Constitution and the proper construction to be placed on it.
The section governs the manner in which international
agreements are
concluded, made binding on South Africa, and domesticated into our
national law. It reads:
‘
(1) The negotiating and signing
of all international agreements is the responsibility of the national
executive.
(2) An international agreement binds
the Republic only after it has been approved by resolution in both
the National Assembly and
the National Council of Provinces, unless
it is an agreement referred to in subsection (3).
(3) An international agreement of a
technical, administrative or executive nature, or an agreement which
does not require either
ratification or accession, entered into by
the national executive, binds the Republic without approval by the
National Assembly
and the National Council of Provinces, but must be
tabled in the Assembly and the Council within a reasonable time.
(4) Any international agreement
becomes law in the Republic when it is enacted into law by national
legislation; but a self-executing
provision of an agreement that has
been approved by Parliament is law in the Republic unless it is
inconsistent with the Constitution
or an Act of Parliament.
(5) The Republic is bound by
international agreements which were binding on the Republic when this
Constitution took effect.’
[33]
The structure and effect of s 231 was lucidly explained by the
majority of the Constitutional Court in
Glenister
II
:
[9]
‘
[181] In our view the main
force of s 231(2) is directed at the Republic's legal obligations
under international law, rather than
transforming the rights and
obligations contained in international agreements into home-grown
constitutional rights and obligations.
Even though the section
provides that the agreement 'binds the Republic', and Parliament
exercises the Republic's legislative power,
which it must do in
accordance with and within the limits of the Constitution, the
provision must be read in conjunction with the
other provisions
within s 231. Here, s 231(4) is of particular significance. It
provides that an international agreement 'becomes
law in the Republic
when it is enacted into law by national legislation'. The fact that s
231(4) expressly creates a path for the
domestication of
international agreements may be an indication that s 231(2) cannot,
without more, have the effect of giving binding
internal
constitutional force to agreements merely because Parliament has
approved them. It follows that the incorporation of an
international
agreement creates ordinary domestic statutory obligations.’
[34]
Ngcobo CJ, writing for the minority in the same case, neatly
summarised the scheme of s 231 as follows:
‘
[89] The constitutional scheme
of section 231 is deeply rooted in the separation of powers, in
particular the checks and balances
between the executive and the
legislature. It contemplates three legal steps that may be taken in
relation to an international
agreement, with each step producing
different legal consequences. First, it assigns to the national
executive the authority to
negotiate and sign international
agreements. But an international agreement signed by the executive
does not automatically bind
the Republic unless it is an agreement of
a technical, administrative or executive nature. To produce that
result, it requires,
second, the approval by resolution of
Parliament.
[90] The approval of an agreement by
Parliament does not, however, make it law in the Republic unless it
is a self-executing agreement
that has been approved by Parliament,
which becomes law in the Republic upon such approval unless it is
inconsistent with the Constitution
or an Act of Parliament.
Otherwise, and third, an “international agreement becomes law
in the Republic when it is enacted
into law by national legislation.”
(footnotes omitted.)
[35]
From the exposition of s 231, there is no question that the power to
conduct international relations and to conclude treaties
has been
constitutionally conferred upon the national executive in terms of s
231(1). But that power is fettered by s 231(2) and
(4), which enjoins
the national executive to engage parliament. The section therefore
clearly delineates the powers between the
national executive and
parliament. The only power the national executive has to bind the
country to international agreements without
parliamentary involvement
is in s 231(3), with which we are not concerned here. Any other
international agreement must be approved
by parliament in terms of s
231(2) to be binding on the country. Thus, once parliament approves
the agreement, internationally
the country becomes bound by that
agreement. Domestically, the process is completed by parliament
enacting such international agreement
as national law in terms of s
231(4).
The
contentions of the parties on the effect of s 231
[36]
There is no debate about the scheme of s 231 as far as treaty-making
is concerned. The dispute is about the reverse process,
when the
country has to withdraw from an international agreement. The DA,
CASAC and the supporting respondents argued that since
in terms of s
231(2) it is parliament which must approve an international agreement
before it may bind South Africa, it follows
that it must be
parliament which decides whether an international agreement ceases to
bind the country before the executive may
deliver a notice of
withdrawal.
[37]
Unsurprisingly, government respondents took the opposite view. Their
stance was that prior parliamentary approval is not required
for the
notice of withdrawal to be given because s 231 contains no such
provision. But, they contended, in any event, in this case,

parliamentary approval is being obtained. The over-arching argument
advanced on behalf of government respondents on prior parliamentary

approval was that because there is no express provision in s 231 for
such, the reading-in is unwarranted. This argument is premised
on
four distinct grounds.
[38]
First, that because it is the national executive‘s primary role
in international relations to conclude treaties, and
not that of
parliament, the legal requirement (prior approval by parliament) not
being explicit in the Constitution, should not
be lightly implied or
read-in into the Constitution. To construe parliament as the primary
decision-maker when it comes to treaty-making
is contrary to s 231 as
interpreted by the Constitutional Court. Counsel for government
respondents was at pains to emphasise the
fact that treaty-making is
the exclusive competency in the heartland of the national executive.
Therefore, counsel argued, the
read-in function for parliament which
the DA seeks to read in is not what the Constitution contemplates.
[39]
Second, and related to the first ground, was that since the original
function of concluding treaties is not that of parliament,
but of the
national executive, parliamentary approval is only required in order
for a concluded treaty to become binding. The conclusion
of that
treaty remains the function of the national executive. The expression
of this approval is done through ratification, which
in this context,
means formal confirmation of consensus expressed by the national
executive. Undoing it is therefore also for the
national executive to
do, which does not need parliamentary approval. Parliamentary
approval relates to the binding effect of a
concluded treaty. Much as
concluding a treaty is a core function of foreign relations within
the competence of the national executive,
‘un-concluding’
a treaty is also within the constitutional competence of the
executive. It was argued further that
since treaties are not
concluded by parliament but the executive, parliament cannot exit
from a treaty, and a decision whether
to withdraw from a treaty is
not that of parliament. Consequently, the argument went,
parliamentary approval is not required.
[40]
Third, that in international law, a notice of withdrawal from an
international agreement does not require approval. In this
regard,
counsel pointed out that article 56 of the Vienna Convention on the
Law of Treaties, 1969, on which article 127 of the
Rome Statute is
based, contemplates only a notice of withdrawal signed by the head of
state, head of government or minister of
foreign affairs or other
representative of the state concerned, with no parliamentary
approval, ratification or confirmation required.
According to
government respondents, the DA contends for a construction of the
Constitution which departs from international law,
and this result is
sought to be achieved by reading-in a requirement which the
Constitution does not contain. Accordingly, so was
the argument, the
reading-in would be inconsistent with international law and
necessarily at odds with the constitutional requirement
to interpret
the Constitution and the South African law to comply with
international law.
[41]
Fourth, that parliamentary approval is only required for an
international agreement. A withdrawal being a unilateral act, it
does
not qualify as an ‘international agreement’. Because s
231 specifically mentions ‘an international agreement’
by
necessary implication this excludes withdrawal, with the application
of the maxim
expressio unius
est exclusio alterius
.
[10]
The reading-in is therefore inconsistent with the legal nature of
withdrawal and the express wording of the constitutional text
itself.
[42]
Finally, government respondents submitted that the question whether
parliamentary approval is required before notice of withdrawal
is
given, ‗does not arise‘ on the facts of this case because
parliamentary approval is being obtained for the withdrawal.

Accordingly, we were urged not determine this question as it does not
arise squarely for determination, as per the injunction of
the
Constitutional Court
in
its jurisprudence on this issue.
[11]
Analysis
and discussion
[43]
We have no difficulty in accepting, as a general proposition, that
under our constitutional scheme, it is the responsibility
of the
national executive to develop and implement policy. It is also the
responsibility of the executive to initiate legislation
in order to
implement policy. As Ngcobo J explained in
Kaunda
:
[12]
‘
[172] The conduct of foreign
relations is a matter which is within the domain of the executive.
The exercise of diplomatic protection
has an impact on foreign
relations. Comity compels states to respect the sovereignty of one
another; no state wants to interfere
in the domestic affairs of
another. The exercise of diplomatic protection is therefore a
sensitive area where both the timing and
the manner in which the
intervention is made are crucial. The state must be left to assess
foreign policy considerations and it
is a better judge of whether,
when and how to intervene. It is therefore generally accepted that
this is a province of the executive,
the state should generally be
afforded a wide discretion in deciding whether and in what manner to
grant protection in each case
and the judiciary must generally keep
away from this area. That is not to say the judiciary has no role in
the matter.’
[44]
It is now axiomatic that the exercise of all public power, including
the conducting of international relations, must accord
with the
Constitution.
[13]
As stated already, South Africa has, in terms of s 231 of the
Constitution, both ratified the Rome Statute and domesticated it

through the Implementation Act. While the notice of withdrawal was
signed and delivered in the conduct of international relations
and
treaty-making as an executive act, it still remained an exercise in
public power, which must comply with the principle of legality
and is
subject to constitutional control.
[14]
[45]
Equally, it is the responsibility of parliament to make laws. When
making laws parliament will exercise its judgment as to
the
appropriate policy to address the situation.
[15]
The formulation of policy to withdraw from the Rome Statute therefore
no doubt falls exclusively within the national executive‘s

province. In the present case, the declaratory statement which
accompanied the notice of withdrawal, reflects the national
executive‘s
policy position.
[46]
We consider these submissions through the prism of these
constitutional guidelines. Broadly, we do not agree with the general

tenor of interpretation placed on s 231 by government respondents.
The argument is effectively this: in terms of s 231(1) and (2)
of the
Constitution the national executive first negotiates and signs an
international agreement. Parliament thereafter approves
the agreement
to bind the country. The process of withdrawal should follow the same
route with the national executive first taking
the decision, followed
by parliamentary approval. On this argument, the notice of withdrawal
is an act in terms of s 231(1), and
is the equivalent of, and akin
to, the conclusion and signature during the making of an
international treaty, which does not require
prior parliament
approval, but can be subsequently ratified.
[47]
We disagree. A notice of withdrawal, on a proper construction of s
231, is the equivalent of ratification, which requires prior

parliamentary approval in terms of s 231(2). As correctly argued on
behalf of the DA, the act of signing a treaty and the act of

delivering a notice of withdrawal are different in their effect. The
former has no direct legal consequences, while by contrast,
the
delivery of a notice of withdrawal has concrete legal effects in
international law, as it terminates treaty obligations, albeit
on a
deferred basis in the present case. Also, this argument overlooks the
explicit provisions of article 127(1) of the Rome Statute,
which
provide that a state may withdraw ‘by written notification
addressed to the Secretary-General of the United Nations’.
The
notice of withdrawal deposited by the Minister of International
Relations is the written notification envisaged in the article.

Although the withdrawal does not take effect until a year, that
notice constitutes, at international level, a binding, unconditional

and final decision of withdrawal from the Rome Statute.
[48]
We further disagree with the government respondent‘s contention
that the participation of parliament in the decision-making

concerning the purported withdrawal from the ICC, will be
inconsistent with international law since the withdrawal letter has
to be signed by a senior state official. Article 127 of the Rome
Statute, which the government respondents contend is based on Article

56 of the Vienna Convention of the Law of Treaties, 1969, simply
requires that the letter of withdrawal be signed by the head of

state, head of government, or minister of foreign affairs or other
representative of the state concerned. On a proper construction,
this
implies that the letter must be signed by a senior state official who
is duly authorized, so as to assure the Secretary General
and the ICC
that the letter communicated is authentic. The article does not seek
to dictate to the member states as to how and
by whom the decision to
withdraw must be taken.
[49]
In summary, that provision has nothing to do with who has the
authority to make a decision to withdraw. It is concerned with
the
designated government official who signs and delivers the notice to
the United Nations, after a competent authority (either
the national
executive or the legislature) had taken a decision to withdraw. The
article therefore has no bearing on the decision-making
itself. Thus
the need for the participation of parliament in the consideration of
the conclusion of treaties and by analogy, the
question whether to
withdraw from the Rome Statute is part of our law and cannot be
construed to be inconsistent with international
law.
[50]
It is indeed correct that in international law, a notice of
withdrawal from an international agreement does not require
parliamentary
approval.
[16]
However the question of which between the national executive and
parliament has to decide on withdrawal must be settled according
to
domestic law. It is a domestic issue in which international law does
not and cannot prescribe.
[51]
It should also be borne in mind that prior parliamentary approval is
required before instruments of ratification may be deposited
with the
United Nations. From that perspective, there is a glaring difficulty
in accepting that the reverse process of withdrawal
should not be
subject to the same parliamentary process. The necessary inference,
on a proper construction of s 231, is that parliament
retains the
power to determine whether to remain bound to an international
treaty. This is necessary to give expression to the
clear separation
of powers between the national executive and the legislature embodied
in the section. If it is parliament which
determines whether an
international agreement binds the country, it is constitutionally
untenable that the national executive can
unilaterally terminate such
an agreement.
[52]
As the Constitutional Court explained in
Glenister II
para 96,
a resolution by parliament in terms of s 231(2) to approve an
international agreement is ‘a positive statement …
to
the signatories of that agreement that parliament, subject to the
provisions of the Constitution, will act in accordance with
the
ratified agreement.’ Therefore, the approval of an
international agreement in terms of s 231(2) creates a social
contract
between the people of South Africa, through their elected
representatives in the legislature, and the national executive. That
social contract gives rise to the rights and obligations expressed in
such international agreement. The anomaly that the national
executive
can, without first seeking the approval of the people of South
Africa, terminate those rights and obligations, is self-evident
and
manifest.
[53]
What is more, it is trite that where a constitutional or statutory
provision confers a power to do something, that provision
necessarily
confers the power to undo it as well.
[17]
In the context of this case, the power to bind the country to the
Rome Statute is expressly conferred on parliament. It must therefore,

perforce, be parliament which has the power to decide whether an
international agreement ceases to bind the country. The conclusion
is
therefore that, on a textual construction of s 231(2), South Africa
can withdraw from the Rome Statute only on approval of parliament
and
after the repeal of the Implementation Act. This interpretation of
the section is the most constitutionally compliant, giving
effect to
the doctrine of separation of powers so clearly delineated in s 231.
The fact that s 231 does not expressly say that
only parliament has
the power to decide the withdrawal from the Rome Statute, is no bar
to this interpretation.
A
different perspective
[54]
Before we conclude on this topic, we look at the matter from another
perspective. The matter was argued largely on the basis
that there is
no provision in the Constitution or in any other legislation for
withdrawal from international treaties. This may
be considered to be
an omission or
lacuna
.
However, it appears to us that there is probably a good reason why
the Constitution provides for the power of the executive to
negotiate
and conclude international agreements but is silent on the power to
terminate them. The reason is this: As the executing
arm of the
state, the national executive needs authority to act. That authority
will flow from the Constitution or from an act
of parliament. The
national executive can exercise only those powers and perform those
functions conferred upon it by the Constitution,
or by law which is
consistent with the Constitution.
[18]
This is a basic requirement of the principle of legality and the rule
of law. The absence of a provision in the Constitution or
any other
legislation of a power for the executive to terminate international
agreements is therefore confirmation of the fact
that such power does
not exist unless and until parliament legislates for it. It is not a
lacuna
or
omission.
[55]
With regard to the conclusion of international agreements, it is not
for parliament to engage in negotiating such agreements.
It is for
this reason that the Constitution gave that power to the national
executive. It is thus provided for in the scheme of
section 231 (1),
for the executive to do what is in effect exploratory work: negotiate
and conclude an agreement but not bind the
country. As stated
already, the executive does not have the power to bind South Africa
to such agreement. The binding power comes
only once parliament has
approved the agreement on behalf of the people of South Africa as
their elected representative. It appears
that it is a deliberate
constitutional scheme that the executive must ordinarily go to
parliament (the representative of the people)
to get authority to do
that which the executive does not already have authority to do.
[56]
It would have been unwise if the Constitution had given power to the
executive to terminate international agreements, and thus
terminate
existing rights and obligations, without first obtaining the
authority of parliament. That would have conferred legislative
powers
on the executive: a clear breach of the separation of powers and the
rule of law. On this basis, too, the national executive
thus does not
have and was never intended to have the power to terminate existing
international agreements without prior approval
of parliament.
Summary
of conclusions on s 231
[57]
In sum, since on the structure of s 231, the national executive
requires prior parliamentary approval to bind South Africa
to an
international agreement, there is no cogent reason why the withdrawal
from such agreement should be different. The national
executive did
not have the power to deliver the notice of withdrawal without
obtaining prior parliamentary approval. The inescapable
conclusion
must therefore be that the notice of withdrawal requires the
imprimatur of parliament before it is delivered to the
United
Nations. Thus, the national executive‘s decision to deliver the
notice of withdrawal without obtaining prior parliamentary
approval
violated s 231(2) of the Constitution, and breached the separation of
powers doctrine enshrined in that section.
Ex
post facto approval?
[58]
Government respondents‘ seemingly alternative argument was that
if parliamentary approval is indeed required, the national
executive
has complied with that requirement since parliament is still vested
with such a decision, by virtue of the fact that
the request to
approve the notice of withdrawal and the repeal of the Implementation
Act, are pending before parliament. Government
respondents therefore
contended for subsequent ratification. This raises the question
whether retrospective approval by parliament
would cure any defects
in the process followed for the notice of withdrawal.
[59]
Put differently, given that the national executive has sought
parliamentary approval for the notice of withdrawal and the repeal
of
the Implementation Act, has this question not become academic? It is
not, for two reasons - one constitutional and another,
practical.
Constitutionally, an important constitutional principle of doctrine
of separation of powers is implicated. Because the
national executive
had purported to exercise power it constitutionally does not have,
its conduct is invalid and has no effect
in law.
[19]
Whatever parliament does about the subsequent request to it by the
national executive to approve the notice of withdrawal, would
not
cure its invalidity. As Hoexter
[20]
states ‘[a]n invalid act, being a nullity, cannot be ratified,
‘validated’ or amended.’
[60]
Practically, although the notice of withdrawal does not take effect
immediately, this does not mean its delivery has no consequences

until the effective date. The ICC and member states to the Rome
Statute must begin preparing for existence without South Africa.

Elaborate transitional arrangements must be put in place. This, in
part, should explain why article 127(1) of the Rome Statute
contains
a deferred effective date. As the notice of withdrawal has been
delivered prematurely, the effective date is earlier than
would be,
than had parliamentary approval been sought prior to the delivery of
that notice. In other words, had parliamentary approval
been sought
first, and obtained, the process would have taken much longer for the
notice of withdrawal to be validly delivered.
This obviously would
have pushed the date of withdrawal much further than October 2017. As
explained more fully below, the process
of law-making is inherently
elaborate and of necessity, takes long. To sum up on this point, and
for the reasons stated above,
parliamentary approval after the notice
of withdrawal had been delivered, has no effect. Parliament is not
empowered to cure the
invalidity of the notice of withdrawal.
However, it must be emphasised that this conclusion does not affect
the validity of the
Minister of Justice‘s tabling of the repeal
bill before parliament. That process is legitimately and properly
before parliament.
Public
participation
[61]
The argument by the DA and the supporting respondents was that public
participation had been circumvented by the national executive‘s

delivery of the notice of withdrawal without prior parliamentary
approval. In
Doctors for Life
, the Constitutional Court
explained the importance of public participation in law-making thus:
‘
[115] The participation by the
public on a continuous basis provides vitality to the functioning of
representative democracy. It
encourages citizens of the country to be
actively involved in public affairs, identify themselves with the
institutions of government
and become familiar with the laws as they
are made. It enhances the civic dignity of those who participate by
enabling their voices
to be heard and taken account of. It promotes a
spirit of democratic and pluralistic accommodation calculated to
produce laws that
are likely to be widely accepted and effective in
practice. It strengthens the legitimacy of legislation in the eyes of
the people.
Finally, because of its open and public character it acts
as a counterweight to secret lobbying and influence peddling.
Participatory
democracy is of special importance to those who are
relatively disempowered in a country like ours where great
disparities of wealth
and influence exist.’
[62]
Public participation is a parliamentary process in
legislation-making. Parliament has a broad discretion in this regard,
so
long as it acts reasonably in terms of the prescripts of the
Constitution. In respect of the repeal bill, which is already before

it, parliament will determine how best to handle it, including
whether it is necessary to hold public hearings or call for written

submissions from the public. The finding that parliamentary approval
of the notice of withdrawal and the repeal of the Implementation
Act
are required before a notice of withdrawal is delivered to the United
Nations, renders it unnecessary to consider in any detail,
whether
public participation has been frustrated. This is so because,
properly construed, the complaint that public participation
has been
hamstrung or circumvented by not seeking prior parliamentary
approval, is premised on this court finding that the national

executive‘s had validly delivered the notice of withdrawal.
[63]
It has been found to have been invalidly delivered, as result of
which it has to be revoked. As stated earlier, the parliamentary

process to repeal the Implementation Act should take its course. None
of the parties has suggested that that process (to consider
the
repeal bill) is tainted. What has been tainted is the request by the
national executive to approve the notice of withdrawal.
In other
words, one should separate the notice of withdrawal (which is
invalid) from the repeal bill (against which there is no
complaint).
For these reasons, and in deference to parliament, no more should be
said on this aspect.
Procedural
irrationality
[64]
The above conclusion leads to the question of procedural rationality
of the notice of withdrawal. The requirement for rationality
is that
government action must be rationally connected to a legitimate
government purpose.
[21]
The principle of legality requires that both the process by which the
decision is made and the decision itself must be rational.
In
Democratic Alliance v
President of the Republic of South Africa
[22]
the Constitutional Court explained that to determine procedural
irrationality is to look at the process as a whole and determine

whether steps in the process were rationally related to the end
sought to be achieved. If not, whether the absence of a connection

between a particular step is so unrelated to the end as to taint the
whole process with irrationality. In the present case, the
procedural
irrationality lies in the finding that the national executive did not
consult parliament, as it was obliged to, before
delivering the
notice of withdrawal.
[65]
The primary reason advanced by the national executive for delivering
the notice of withdrawal is that the Rome Statute impedes
its role in
diplomatic and peace-keeping efforts on the continent, as it is
required to arrest, on its soil, sitting heads of state
against whom
the ICC has issued warrants of arrest. By withdrawing from the Rome
Statute, so was the argument, government would
be free to pursue its
peacemaker role on the continent without the obligation to arrest the
indicted heads of state. It would be
free to give immunity to such
leaders. But this ignores the effect of the Implementation Act. It is
domestic legislation which
creates peremptory obligations which bind
the State on their own terms, independent of its international
obligations. In other
words, South Africa's international law
obligations are thus not dependent on the Rome Statute and
vice
versa
.
[66]
As a result, while internationally the ICC would give effect to the
notice of withdrawal, domestically, government would be
obliged,
among others, to arrest and surrender the indicted leaders, as long
as the Implementation Act is in force. It would not
be permissible to
grant the immunity it envisages. This would result in a state of
affairs where the state incurs obligations domestically
but not be
party to the Rome Statute internationally. Government respondents
argued that nothing turns on this aspect, because
of the fact that
the notice of withdrawal does not take effect until October 2017, and
by that time, the Implementation Act would
have been repealed.
[67]
This was stated almost as a matter of fact. Indeed, the Minister of
Justice stated that he had requested parliament to urgently
consider
the repeal bill (ostensibly so that by October 2017, the
Implementation Act would have been repealed.) In other words,
the
national executive is ordering the legislature to finalise its
process of considering the repeal bill before the effective
date of
18 October 2017. This in itself is impermissible, as it has the
potential to undermine the process of parliament. Section
57(1)(a) of
the Constitution provides that the National Assembly may determine
and control its internal arrangements, proceedings
and procedures.
Section 70(1)(a) gives similar powers to the National Council of
Provinces. Parliament is therefore the master
of its own processes,
and the national executive is not entitled to dictate time frames to
it within which to consider any bill
before it. As explained in
Doctors for Life
at para 38, parliament has a very special
role to play in our constitutional democracy – it is the
principal legislative organ
of the state. With due regard to that
role, it must be free to carry out its functions without
interference. Parliament should
therefore not be dictated to by the
national executive to rush through the repeal bill in order to meet
the national executive-created
deadlines.
[68]
The fate of the repeal bill is far from being clear, bearing in mind
the constitutionally entrenched, and elaborate legislative
process
set out in ss 73 to 82 of the Constitution. That legislative process,
broadly speaking, commences with the introduction
of a bill in the
National Assembly (which has already been done in this case);
consideration and passing of the bill by the National
Assembly;
consideration and passing of the bill by the National Council of
Provinces; and consideration and signing of the bill
by the
President. One must also bear in mind the President‘s role in
law-making. In terms of s 79(1) of the Constitution,
he or she may
refer the bill back to parliament for reconsideration if he or she
has reservations about its constitutionality.
If still not satisfied
after reconsideration by parliament, the President must, in terms of
s 79(4)(b) of the Constitution, refer
the bill to the Constitutional
Court for a decision on its constitutionality.
[69]
After all, parliament may, after its due processes, decide against
the notice of withdrawal and the repeal bill. But even if
parliament
approves of the withdrawal, and enacts the repeal bill into law, that
might not be the end of the matter, because a
constitutional
challenge against that legislation can still be mounted on the basis
that the repeal act itself is unconstitutional.
That is not an
unreasonable forecast, due to the importance of the matter to the
country, both nationally and internationally,
given the issues it
raises. Indeed, such a challenge is already foreshadowed in this
application. In each of the above scenarios,
either the withdrawal
would be deferred (because the repeal bill had not been passed by the
effective date of the withdrawal) or
be withdrawn (because parliament
had voted against the repeal bill or it had judicially been declared
unconstitutional.)
[70]
Either way, there would be clumsy piece-meal processes, with
undesirable and embarrassing outcomes for South Africa. It would
have
given different and confusing signals concerning its withdrawal from
the Rome Statute. The United Nations, the ICC and member
states to
the Rome Statute, as well as the broader international community,
deserve a united, final and determinative voice from
South Africa on
this aspect. That can only be achieved through our country‘s
normal legislative processes. The question should
be: what is so
pressing for the national executive about the withdrawal from the
Rome Statute which cannot wait for our legislative
processes (and
possibly judicial pronouncements) to take their course? Government
respondents have not provided any explanation
for this seemingly
urgent need to withdraw from the Rome Statute. All these, in our
view, point to one conclusion: the prematurity
and procedural
irrationality of the lodging of the notice of withdrawal by the
national executive without first consulting parliament.
This
unexplained haste, in our view, itself constitutes procedural
irrationality.
Summary
of the findings on the process-based challenges
[71]
We find, on a construction of s 231 of the Constitution, that prior
parliamentary approval and the repeal of the Implementation
Act are
required before the notice of withdrawal from the Rome Statute is
delivered by the national executive to the United Nations.
Also, that
the delivery of the notice of withdrawal was procedurally irrational.
These are process-based grounds, as they relate
to the procedure by
which the notice of withdrawal was prepared and handled. The rest of
the grounds (substantive irrationality
and s 7(2) obligations)
concern the substantive merits of the withdrawal. In other words,
whether it is at all constitutionally
permissible for South Africa to
withdraw from the Rome Statute.
Should
we consider the substantive grounds of challenge?
[72]
In light of the above findings, is it necessary to consider the
substantive grounds of review, namely, substantive irrationality
and
the violation of the state‘s obligations under s 7(2) of the
Constitution? The DA‘s argument was that the notice
of
withdrawal constitutes a retrogressive measure in international
relations which deprives South Africans of the protection afforded
by
the ICC, and that it undermines the protection afforded to victims of
international crimes in other countries. This, the DA
argued, is in
breach of the state‘s obligations under s 7(2) of the
Constitution which imposes obligations to respect, protect,
promote
and fulfill constitutional rights. CASAC based its attack on
substantive irregularity, advancing three reasons therefor.
First
that the decision does not accord with section 7(2) of the
Constitution. Second, that the obligations under the Rome Statute

that South Africa seeks to escape by withdrawing from it are provided
for in the Constitution, read with international customary
and treaty
law. Lastly, that the decision serves no legitimate government
purpose.
[73]
SALC assailed the decision on several grounds, among others, that it
was irrational and/or taken in bad faith; and the effect
of
withdrawing was not properly considered, especially in respect of
ongoing investigations and the impact on victims. CHR aligned
itself
with these grounds. It also argued that the withdrawal was irrational
as there is no substitute for the ICC. In addition,
it submitted that
the African Union Constitutive Act and the African Charter do not
contemplate a choice between membership of
the Rome Statute and
promoting peace and security. It was submitted that those two goals
are intertwined because, ultimately, peace
and security on the
continent depended on there being real consequences for international
crimes. That, so was the argument, is
the basis for the existence of
the ICC which the African Commission endorses. In brief, it was
argued that the national executive‘s
position is at odds with
that adopted by the AU in relation to the ICC.
[74]
During argument, counsel for the DA accepted the proposition that
should we find in its favour on the process-based arguments,
it would
not be necessary to consider the substantive grounds. Counsel for
SALC, CHR and HSF, on the other hand, pressed on with
the argument
that we should also decide the substantive grounds referred to above,
irrespective of any findings on the procedural
grounds. Counsel for
CHR argued thus: given the position adopted by the national executive
it is likely that, should its decision
be set aside for procedural
reasons, it would simply achieve the same goal (of withdrawal from
the Rome Statute) after following
the proper procedure. If this court
does not decide the substantive grounds of review now, it is probable
it will have to do so
again in fresh legislation brought after the
proper processes are followed. As the matter has been fully argued
now, it was appropriate
to decide all the challenges at this stage.
Counsel based this argument on the dictum in
S
v Jordan and others
[23]
where the Constitutional Court said:
‘
[21] [W]here the
constitutionality of a provision is challenged on a number of grounds
and the court upholds one such ground it
is desirable that it should
also express its opinion on the other challenges. This is necessary
in the event of this Court declining
to confirm on the ground upheld
by the High Court. In the absence of the judgment of the High Court
on the other grounds, the proper
course to follow may be to refer the
matter back to the trial court so that it could deal with the other
challenges to the impugned
provision. Thus failure by the High Court
to consider other challenges could result in unnecessary delay in the
disposal of a case.’
[75]
In our view, the above dictum is not apposite to the present case.
What distinguishes this case from other cases of constitutional

challenge, is mainly that here, there is a parliamentary process
pending to consider the repeal bill. If the national executive

follows proper processes, and parliament passes the repeal bill, no
fault would be attributable to the national executive. If the

complaint be that the legislation repealing the Implementation Act is
unconstitutional on any ground, including all the substantive
grounds
advanced in this application, then such complaint would not be
against the executive, but parliament.
[76]
The same goes for the DA‘s argument that parliamentary
processes ‘after- the-fact’ present withdrawal as
fait
accompli.
This proposition
is based on the presumption that parliament will fail to perform its
constitutional functions rigorously. This
is a wrong premise. Since
there is a parliamentary process pending, it must be assumed that
parliament will comply with its constitutional
obligation in this
regard, for example, to facilitate public participation, which is its
own process, and not of the executive.
Any legislation which has
potential impact on the bill of rights passed without such
participation could be susceptible to a constitutional
challenge
against parliament. That challenge will not lie to this court, as the
Constitutional Court has the exclusive jurisdiction
to determine a
constitutional challenge based on alleged failure by the legislature
to facilitate public involvement in its legislative
and other
processes as envisaged in s 59(1)(a) of the Constitution.
[24]
Therefore, as observed by Langa CJ in
Glenister
,
it would be institutionally inappropriate for a court to intervene in
the process of law-making on the assumption that parliament
would not
observe its constitutional obligations.
[25]
For these reasons this court refrains from expressing any view on the
substantive grounds.
Summary
[77]
In summary, the following conclusions are reached on the issues in
dispute. Procedurally, the decision by the national executive
to
deliver the notice of withdrawal of South Africa from the Rome
Statute of the ICC without prior parliamentary approval is
unconstitutional
and invalid. So is that decision, without it being
preceded by the repeal of the Implementation Act. This court declines
the invitation
to pronounce on the substantive merits of South
Africa‘s withdrawal from the Rome Statute of the ICC. That
decision is policy-laden,
and one residing in the heartland of the
national executive in the exercise of foreign policy, international
relations and treaty-making,
subject, of course, to the Constitution.
Remedy
[78]
Section 172(1) of the Constitution provides that when deciding a
constitutional matter within its power, a court must declare
that any
law or conduct that is inconsistent with the Constitution is invalid
to the extent of its inconsistency. Section 172(1)(b)
of the
Constitution provides that when deciding a constitutional matter
within its power, a court may make any order that is just
and
equitable, including an order limiting the retrospective effect of
the declaration of invalidity and an order suspending the
declaration
of invalidity for any period to allow the competent authority to
correct the defect. In the present case, that an order
of suspension
is not appropriate, nor is an order limiting the retrospectivity of
the effect of the declaration of invalidity,
given the inherent
urgency of the matter. In any event, government respondents did not
make out a case for such an order, although
counsel on their behalf
faintly suggested that we should consider suspension. As a result,
the order of invalidity is with retrospective
effect and no order of
suspension would be made.
[79]
As a natural and logical outcome of the case and to ensure that the
applicant is granted effective relief following a finding
of
constitutional invalidity, as directed by the Constitutional Court in
Fose v Minister of Safety
and Security
[26]
consideration should be given to the proper order to make under the
circumstances. Having found that the notice of withdrawal is
invalid
for the reasons discussed in this judgment, a declaratory order to
that effect must be made. But, to constitute an effective
remedy,
that declaration should be accompanied by an order directing
government respondents to revoke the notice of withdrawal.
[80]
The DA has also sought that government respondents be ordered ‘to
take all reasonable steps to terminate the process
of withdrawal.’
Such an order would be too widely stated, and is likely to result in
unnecessary interpretational issues.
For example, the pending
parliamentary process to consider the repeal bill is ‘a process
of withdrawal’. The order
sought by the DA would have the
effect of terminating such process. At the risk of repetition, there
has not been a challenge to
the Minister of Justice‘s referral
of the repeal bill to parliament, and that process is not affected by
the invalid delivery
of the notice of withdrawal to the United
Nations.
[81]
Given that this court has refrained from expressing a view on the
substantive policy decision by the national executive to
withdraw
from the Rome Statute, it follows that it would be inappropriate to
declare that decision unconstitutional as a stand-alone
decision.
There is nothing patently unconstitutional, at least at this stage,
about the national executive‘s policy decision
to withdraw from
the Rome Statute, because it is within its powers and competence to
make such a decision. What is unconstitutional
and invalid, is the
implementation of that decision (the delivery of the notice of
withdrawal) without prior parliamentary approval.
As a result, a
declaration of invalidity of the notice of withdrawal, coupled with
an order for the withdrawal of such notice,
should suffice as an
effective, just and equitable remedy.
Costs
[82]
The general principles with regard to costs in constitutional
litigation were laid down by the Constitutional Court in
Affordable
Medicines
[27]
and
Biowatch.
[28]
Relevant to the present case is that in constitutional litigation
between a private party and the state, if the private party is

successful, it should have its costs paid by the state, while if
unsuccessful each party should pay its own costs. The DA has been
successful.
It is entitled to its costs from government respondents. However,
costs of three counsel are not warranted. Costs of
two should
suffice.
[83]
With regard to CASAC, we are of the view that it is not entitled to
costs. It waited until late to file its application for
intervention.
Unlike the DA, it elected to file an application for direct access in
the Constitutional Court only, and not in this
court. When that
application was dismissed, it found itself not being party to this
application, resulting in an application for
intervention on an
urgent basis. With regard to the supporting respondents - SALC, CHR
and HSF - they are ordinarily, as respondents,
not entitled to costs
from other respondents (in this regard government respondents.)
Therefore, no order of costs as between the
supporting respondents
and government respondents should be made.
[84]
In the result the following order is made:
1. The notice of withdrawal from the
Rome Statute of the International Criminal Court, signed by the first
respondent, the Minister
of International Relations and Cooperation
on 19 October 2016, without prior parliamentary approval, is
unconstitutional and invalid;
2. The cabinet decision to deliver the
notice of withdrawal to the United Nations Secretary-General without
prior parliamentary
approval, is unconstitutional and invalid;
3. The first, second and third
respondents – the Minister of International Relations and
Cooperation, the Minister of Justice
and Correctional Services and
the President of the Republic of South Africa, are ordered to
forthwith revoke the notice of withdrawal
referred in paragraph 1
above.
4. The first, second and third
respondents are ordered to pay the applicant‘s costs, including
costs consequent upon employment
of two counsel;
5. There is no costs order as between
the intervening applicant, the first, second, third, sixth, ninth and
tenth respondents.
_____________________
PM
Mojapelo
Deputy
Judge President of the High Court, Gauteng Division
____________________
TM
Makgoka
Judge
of the High Court, Gauteng Division
____________________
SP
Mothle
Judge
of the High Court, Gauteng Division
APPEARANCES:
For
the Applicant: S Budlender (with him C McConnachie and L Zikalala)
Instructed
by: Minde Shapiro Smith Inc., Belville; Klagsbrun Edelstein Bosman De
Vries Inc., Pretoria
For
the First to Third Respondents: JJ Gauntlett SC (with him F Pelser, L
Dzai and A Msimang)
Instructed
by: State Attorney, Pretoria
For
the Fourth Respondent: No appearance
For
the Fifth Respondent: No appearance
For
the Sixth Respondent: M Du Plessis (with him A Coutsoudis)
Instructed
by: Webber Wentzel, Johannesburg; Bernard Van Der Hoven Attorneys,
Pretoria
For
the Seventh Respondent: No appearance
For
the Eighth Respondent: No appearance
For
the Ninth Respondent: T Ngcukaitobi (with him M Bishop and MN
Mothapo)
Instructed
by: Legal Resources Centre, Johannesburg
For
the Tenth Respondent: D Unterhalter SC (with him C Steinberg and K
Premhid)
Instructed
by: Webber Wentzel, Johannesburg; Hills Incorporated Attorneys,
Pretoria
For
the Intervening Party: A Katz SC (with him D Simons, N Muvangua and
NM Krige)
Instructed
by: Norton Rose Fullbright, Cape Town; Jacques Van Der Merwe
Attorneys, Pretoria
[1]
Southern Africa Litigation Centre v Minister of Justice and
Constitutional Development & others
[2015] 3 All SA 505
(GP);
2015 (9) BCLR 110
8 (GP); 2015 (2) SA 1 (GP).
[2]
Minister of Justice and Constitutional Development & others v
The Southern Africa Litigation Centre [2016] 2 All SA 365 (SCA);

2016 (4) BCLR 487 (SCA); 2016 (3) SA 317 (SCA).
[3]
Minister of Justice and Constitutional Development and Others v
Southern Africa Litigation Centre and Others (CCT 75/16).
[4]
CHR, together with the Peace and Justice Initiative (PJI), are
jointly cited at the ninth respondent. PJI has elected not to

participate in this application.
[5]
Doctors for Life International v Speaker of the National Assembly
2006 (6) SA 416 (CC).
[6]
See for example Justice Alliance of South Africa v President of the
Republic of South Africa
2011 (5) SA 388
(CC); CASAC v President of
the Republic of South Africa (CCT 83/13).
[7]
Independent Newspapers (Pty) Ltd v Minister for Intelligence
Services: In re Masetlha v President of the Republic of South Africa

2008 (5) SA 31 (CC).
[8]
Section 38 provides:
Anyone
listed in this section has the right to approach a competent court,
alleging that a right in the Bill of Rights has been
infringed or
threatened, and the court may grant appropriate relief, including a
declaration of rights. The persons who may approach
a court are—
(a) anyone acting in their own
interest;
(b) anyone acting on behalf of
another person who cannot act in their own name;
(c) anyone acting as a member of, or
in the interest of, a group or class of persons;
(d) anyone acting in the public
interest; and
(e) an association acting in the
interest of its members.
[9]
Glenister v President of the Republic of South Africa and others
2011 (3) SA 347
;
2011 (7) BCLR 651
(CC) (Glenister II).
[10]
A maxim of interpretation meaning that the express mention of one
thing is the exclusion of the other.
[11]
See S v Mhlungu
[1995] ZACC 4
;
1995 (3) SA 867
(CC) para 59; Zantsi v Council of
State, Ciskei
[1995] ZACC 9
;
1995 (4) SA 615
(CC) paras 2-5; Ferreira v Levin NO;
Vryenhoek v Powell NO
1996 (1) SA 984
(CC) para 199; S v Bequinot
[1996] ZACC 21
;
1997 (2) SA 887
(CC) paras 12 -13; Doctors for Life International v
Speaker of the National Assembly and others
[2006] ZACC 11
;
2006 (6) SA 416
;
2006
(12) BCLR 1399
paras 41 and 71.
[12]
Kaunda v President of the Republic of South Africa 2005 (4) SA 235
(CC).
[13]
Pharmaceutical Manufacturers Association of SA and Another: In re Ex
parte President of the Republic of South Africa and Others
[2000] ZACC 1
;
2000 (2)
SA 674
(CC) para 20.
[14]
Kaunda and others v President of the Republic of South Africa
2005
(4) SA 235
(CC) paras 78- 80,178,191 and 228; Minister of Defence
and Military Veterans v Motau and others
2014 (5) SA 69
(CC) para
69; National Treasury v Opposition to Urban Tolling Alliance
2012
(6) SA 223
(CC) para 64.
[15]
Glenister II para 66.
[16]
See section 127 of Rome Statute, and its predecessor, article 56 of
the Vienna Convention on the Law of Treatise.
[17]
Masetlha v President of the Republic of South Africa and Another
[2007] ZACC 20
;
2008 (1) SA 566
(CC) para 68.
[18]
Fedsure Life Assurance Ltd v Greater Johannesburg Transitional
Metropolitan Council
[1998] ZACC 17
;
1999 (1) SA 374
(CC) at paras 56-56; President
of RSA v SARFU 2000(1) SA 1 (CC) at para 148; Mansigh v General
Council of the Bar and Others
2014 (2) SA 2
6 (CC) at para 25.
[19]
Kruger v President of the Republic of South Africa and others
[2008] ZACC 17
;
2009
(1) SA 417
(CC) para 52.
[20]
Administrative Law in South Africa 2nd ed (2012) at 547. See also S
v Cebekulu
1963 (1) SA 482
(T) at 483; Montshioa and Another v
Motshegare
2001 (8) BCLR 833
(B) para 24.
[21]
Pharmaceutical Manufacturers Association of SA and another: In re Ex
Parte President of the Republic of South Africa and others
[2000] ZACC 1
;
2000 (2)
SA 674
(CC) para 85.
[22]
Democratic Alliance v President of the Republic of South Africa and
others
2012 (12) BCLR 1297
;
2013 (1) SA 248
(CC) para 37.
[23]
S v Jordan and others (Sexual Workers Education and Task Force as
Amicus Curiae)
[2002] ZACC 22
;
2002 (6) SA 642
;
2002 (11) BCLR 1117
(CC). In City of
Cape Town v Premier of the Western Cape and others
2008 (6) SA 345
(C) paras 167-8 it was held that similar considerations apply to
attacks on conduct.
[24]
Doctors for Life para 21; Glenister II para 23.
[25]
Glenister v President of the Republic of South Africa and others
[2008] ZACC 19
;
2009 (1) SA 287
;
2009 (2) BCLR 136
(CC) para 56.
[26]
Fose v Minister of Safety and Security 1997 (3) 786 (CC) para 69 and
Gory v Kolver N.O. and Others (Starke and Others Intervening)
2007
(4) SA 97
(CC) para 40.
[27]
Affordable Medicines Trust and Others v Minister of Health and
Others 2006 (3) SA 247 (CC).
[28]
Biowatch Trust v Registrar, Genetic Resources and Others
2009 (6) SA
232
(CC).