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[2015] ZAGPPHC 402
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Southern Africa Litigation Centre v Minister of Justice And Constitutional Development and Others (27740/2015) [2015] ZAGPPHC 402; 2016 (1) SACR 161 (GP); 2015 (5) SA 1 (GP); [2015] 3 All SA 505 (GP); 2015 (9) BCLR 1108 (GP) (24 June 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
Number: 27740/2015
DELETE
WHICHEVER IS NOT APPLICABLE
(1)
REPORTABLE: YES
(2)
OF INTEREST TO OTHER JUDGES: YES
REVISED:
YES
DATE
: 24 /6 /2015 SIGNATURE
In
the matter between:
THE
SOUTHERN AFRICA LITIGATION
CENTRE
APPLICANT
And
THE
MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
1
ST
RESPONDENT
THE
DIRECTOR-GENERAL OF JUSTICE
AND
CONSTITUTIONAL DEVELOPMENT
2
ND
RESPONDENT
THE
MINISTER OF
POLICE
3
RD
RESPONDENT
THE
COMMISSIONER OF
POLICE
4
TH
RESPONDENT
THE
MINISTER OF INTERNATIONAL
RELATIONS
AND
COOPERATION
5
TH
RESPONDENT
THE
DIRECTOR-GENERAL OF INTERNATIONAL
RELATIONS
AND
COOPERATION
6
TH
RESPONDENT
THE
MINISTER OF HOME
AFFAIRS
7
TH
RESPONDENT
THE
DIRECTOR-GENERAL OF HOME
AFFAIRS
8
TH
RESPONDENT
THE
NATIONAL COMMISIONER OF THE
SOUTH
AFRICAN POLICE
SERVICE
9
TH
RESPONDENT
THE
NATIONAL DIRECTOR OF
PUBLIC
PROSECUTIONS
10
TH
RESPONDENT
THE
HEAD OF THE DIRECTORATE FOR
PRIORITY
CRIMES
INVESTIGATION
11
TH
RESPONDENT
THE
DIRECTOR OF THE PRIORITY CRIMES
INVESTIGATION
UNIT
12
TH
RESPONDENT
JUDGMENT
The
Court
1.
Introduction
This
matter involves a consideration of the duties and obligations of
South Africa in the context of the
Implementation
of
the
Rome
Statute
of
the
International Criminal
Court
Act, 27 of 2002
("the
Implementation Act”).
Directly
posed, the question is 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.
2.
The Court Proceedings
On
Monday 15 June 2015 this court handed down an order in the following
terms:
"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 Climinal Procedure Act, 51 oi 1977 and
detain him, pending a formal request
for his surrender from the
International Criminal Court;
3. THAT
the Applicant is entitled to the costs of the application on a
pro-bone basis."
3.
Pursuant
to handing down the order referred to above the court undertook to
provide its reasons for that order. We hand down these
reasons in
keeping with that undertaking. We point out however that subsequent
to the handing down of the order, we were informed
that the President
of the Republic of Sudan, Omar Hassan Ahmad Al Bashir
("President
Bashir"),
the central figure in the proceedings, had left
South Africa. Nevertheless, it is our view that the order we handed
down, as well
as this judgment remain relevant in view of the
important constitutional and International law principles at stake.
4.
The
court's order referred to above was actually a sequel to and a
continuation of proceedings which had commenced the day before,
Sunday the 14th June 2015. On that day, the Applicant launched
proceedings in the urgent court seeking the following orders:
'2. Declaring conduct of
the Respondents, to the extent that they have failed to prepare to
take steps to arrest and/or detain the
President of The Republic of
Sudan Omar Hassan Ahmad Al Bashir ('President Bashir"), to be
inconsistent with the Constitution
of the Republic of South Africa,
1996, and invalid;
3.
Compelling the respondents forthwith 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
1
977
and detain him, pending a formal
request for his surrender from the International Criminal Court;
alternatively
4.
Compelling the Respondents forthwith to take all reasonable steps to
provisionally arrest President Bashir
in terms of the
I
mplementation
of the Rome statute
of the international
Criminal Court Act 27
of 2002;
5.
Compelling the Respondents to prevent President Bashir from leaving
the country without taking reasonable steps to facilitate
his arrest
in terms of domestic and international laws.
6.
Compelling the Respondents who oppose the application to pay costs
jointly and severally, such costs to include the
costs of
two Counsel..."
5.
On
that Sunday morning Adv I. Ellis who appeared for all the
Respondents, laid out the basis of Respondents' defence to Fabricius
J who was on duty at that stage. The defence propounded was to the
effect that the Cabinet had taken a decision to grant President
Bashir immunity from arrest, and that this decision "trumped"
the government's duty to arrest the President on South
African
soil in terms of two warrants of arrest issued by the ICC, and its
concomitant obligation in terms of the
Implementation
Act.
Adv Ellis requested a three
hour adjournment to prepare a complete argument. Fabricius J granted
a three hour adjournment, but issued
an interim order that in its
terms compelled the Respondents to prevent President Bashir from
leaving the country until a final
order was made in the proceedings.
A request to lead oral evidence by a law professor to explain the
defence proffered by Adv Ellis
was disallowed. The court's attitude
to this request then was that it is for the court to decide
what the law is, and that
the opinion of a witness is in most
(but not all) instances inadmissible evidence.
6.
At
about 15:00 on the same day Adv Mokhari SC appeared with Adv Ellis
and instead of arguing the legal point mentioned earlier,
requested
time to draft an answering affidavit. Such a request is not easily
refused in urgent proceedings depending on the particular
facts at
issue, Fabricius J, mindful of the fact that the African Union
Summit, which President Bashir was attending, would be
in session for
the whole of that day and for the entire day on Monday, granted a
further adjournment until 11:30 on Monday 15 June
2015, but deemed it
necessary to make 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;
3.
the matter is postponed until 11:30 on Monday 15 June 2015;
4.
the Respondents are directed to file any Answering Affidavits by
09:00 on 15 June 2015, the
Applicant to reply by 10:00.”
7
.
The
proceedings were adjourned accordingly. Due to the importance of the
matter, especially having regard to South Africa's
constitutional and international legal obligations in respect of
international crimes that are at issue, the Judge President of
this
Division took a decision that the application would continue before a
Full Court on Monday, i.e. before three Judges, being
Mlambo JP,
Ledwaba DJP and Fabricius J. The Answering Affidavit was only filed
at about 11:25 instead of 9:00 on Monday 15 June
2015, without any
explanation being tendered as to why it was late. The lack of an
explanation for the lateness is
particularly
significant as the Answering Affidavit only
consisted
of 24 typed pages, a supporting affidavit of four pages, and printed
annexures of 87 pages. In our experience, all of
this could easily
have been produced within a few hours.
8.
In
view of the late filing of the Answering Affidavit and the need for
the court and the applicant to peruse it, as well as the
necessity to
file a reply, if any, the proceedings were adjourned until just
before 13:00. When adjourning the proceedings at 11:30
and upon
resumption thereof the court specifically requested Adv Mokhari SC to
provide an indication whether President Bashir was
still in the
country. This was rendered necessary in the light of media reports,
which we took judicial notice of, that suggested
that President
Bashir was either in the process of flying out or had already left
this country. Adv Mokhari SC, specifically disavowing
reliance on
media reports, stated that his instructions were that President
Bashir was still in the country. During the entire
hearing Adv
Mokhari SC repeatedly re-assured us that President Bashir was still
in the country, which fact was necessary for the
court's
jurisdiction. As it transpired later that day and after we handed
down our order, all these assurances were not correct
as President
Bashir had, most probably left the country before argument commenced
just before 13:00. We return to this aspect later.
9.
The
court concluded hearing argument just after 14:30 and handed down the
order referred to in para 2 above at about 15:00. It is
only then
that the court was informed by Adv Mokhari SC that President Bashir
had left the country. This, in our view, is a clear
violation of the
order handed down by Fabricius J on Sunday afternoon. On being
apprised of this state of affairs the court issued
an order that the
Minister in the Office of the Presidency and the Minister of State
Security should file an affidavit within seven
days explaining the
circumstances under which President Bashir managed to fly out of this
country despite the explicit
court order
prohibiting this, handed down on Sunday 14 June referred
to in para 6 above.
10.
The
Adoption
of
the
Rome
Statute
of
the
International
Criminal
Court
An
understanding of the issues involved in this matter necessitates that
we first speak about the ICC and how President Bashir became
its
fugitive. The ICC came into being when the Statute of the ICC was
adopted in July 1998 by a majority of the states attending
the Rome
Conference hence the name - Rome Statute. The adoption of the Statute
and creation of the ICC is properly articulated
at para 40 of the
judgment of the Supreme Court of Appeal in
National
Commissioner of the
South
African Police Service v Southern African
Human
Rights
Litigation
Centre
2014
(2)
SA
42
(SCA)
as
follows:
"[40] The Statute of
the International Criminal Court was adopted on 17 July 1998 by an
overwhelming majority of the states
attending the Rome Conference.
The Conference was specifically organized to secure agreement on a
treaty for the establishment
of a permanent international criminal
tribunal. After five weeks of intense negotiations, 120 countries
voted to adopt the treaty.
Only seven countries voted against it...,
and 21 abstained. By the 31 December 2000 deadline, 139 states had
signed the treaty.
The treaty came into force upon 60 ratifications.
Sixty-six countries - six more than the threshold needed to establish
the court
- had ratified the treaty by 11 April 2002 ... To date, the
Rome Statute has been signed by 139 states and ratified by 117
states.
Of those 117 states, a significant proportion - 31 - are
African. South Africa is a party to the Statute and has been a vocal
endorser
of the International Criminal Court. One
significant absentee amongst the ratifications is that of
the United States.
[42] The Rome Statute's
structures of International criminal justice are grounded in the core
principle of complementarity. The
Statute devises a system of
international criminal justice wherein the primary responsibility for
the investigation and prosecution
of those most responsible for
serious violations of international law rests with domestic
jurisdictions. In principle, a matter
will only be admissible before
the ICC where the state party concerned is either unable or unwilling
to Investigate and prosecute,
which operates so as to ensure 'respect
for the primary jurisdiction of States' and
is
based on 'considerations of efficiency and effectiveness'.”
11.
A critical obligation of
a state party that signed on to and ratified the Rome Statute was the
domestication of the provisions of
the statute into national law to
ensure that such law became compatible with the statute. In the case
of South Africa, ratification
of the statute was in terms of section
231 of the
Constitution
of the
Republic of South
Africa,
1996
("the
Constitutio
n
”).
It is also in terms of that section of the Constitution that
South Africa enacted the
Implementation Act
through which the incorporation of the Rome Statute was
accomplished. In this regard Article 86 of the Rome Statute provides:
"States Parties
shall, in accordance with the provisions of this Statute, cooperate
fully with the court [ICC] in its investigation
and prosecution of
crimes within the jurisdiction of the Court."
In
similar vein article 89(1) provides:
"The Court may
transmit a request for the arrest and surrender of a person, together
with the material supporting the request
outlined in article 91, to
any
State
on the territory of which that person may be found and shall request
the cooperation of that State in the arrest and surrender
of such a
person. States Parties shall, in accordance with the provisions of
this Part and the procedure under their national law,
comply with
requests for arrest and surrender."
In
terms of the
Implementation Act,
South African authorities are
enjoined to
cooperate
with the ICC, for example, to effect the arrest and provisional
arrest of persons suspected of war crimes, genocide and
crimes
against humanity. These crimes have been specifically created in the
South African context in terms of section 4 of the
Implementation
Act.
12.
During
2009 the ICC issued a warrant for the arrest of President Bashir for
war crimes and crimes against humanity. Thereafter and
in 2010 the
ICC issued a second warrant for the arrest of President Bashir for
the crime of genocide. Both warrants were issued
pursuant to the
situation in Darfur. In the wake of these warrants and relying on
Article 59 of the Rome Statute, the ICC requested
States Parties to
the Statute including South Africa to arrest President Bashir in the
event that he came into their jurisdictions.
Indeed it is common
cause that during 2009, President Bashir was invited by South Africa
to attend the inauguration of President
Zuma in South Africa. As a
result of the 2009 warrant of arrest issued by the ICC and South
Africa's obligation to give effect
thereto, South African officials
confirmed that they would arrest President Bashir should he arrive in
the country. For this reason
President Bashir declined South Africa's
invitation to attend the inauguration.
13.
Background
facts relating to the current proceedings
The
facts giving rise to the current proceedings are in large measure
found in the answering affidavit deposed to by the Director-General:
Justice and Constitutional Development who is also the Central
Authority as defined in section 1 of the
Implementation
Act.
She was also authorised by all other
Respondents to depose to the Answering Affidavit. She states that on
or about January 2015,
the Republic of South Africa agreed to host an
African Union
("AU")
Summit during June 2015; that
in order to facilitate the hosting of the AU Summit, the Republic of
South Africa was required to
enter into an agreement with the
Commission of the AU, specifically relating to the material and
technical organization of the
meetings ("the host agreement")
which was concluded on or about 4 June 2015.
14.
The
Director General makes reference to the preamble to the host
agreement,
inter
alia,
which records:
"These Meetings
which are provided for in the Constitutive Act of the African Union,
the Rules and Procedures of the Assembly,
the Executive Council and
the Permanent Representatives' Committee as well as in decisions of
the African Union policy organs,
will be held in Pretoria, Republic
of South Africa, from
7
- 9 June, and from 10 - 13 June and on
14 - 15 June 2015 in Johannesburg, respectively, at the invitation of
the Government; that
accordingly, the Commission is charged with the
exclusive responsibility of organising, conducting and managing the
Meetings, while
the Government will, on its part, provide all the
necessary facilities and assistance to ensure the success and smooth
running
of the Meetings."
The
Director General points out that although
the preamble to the host
agreement
contains the phrase "at the invitation of the Government",
the Republic of South Africa was in no manner whatsoever
involved or
responsible for extending invitations to any or all of the delegates
or attendees of the AU Summit; that the preamble
to the host
agreement clearly provides that the Commission of the AU is charged
with the exclusive responsibility of organising,
conducting and
managing the meetings. The Director General states in this regard
that the Republic of South Africa merely agreed
to host the AU
Summit, whilst the Commission of the AU was solely responsible for
inviting all the delegates and attendees of the
AU Summit.
15.
The
Director General proceeds to make out the case that Article VIII of
the host agreement specifically provides for privileges
and
immunities; that Clause 1 of Article VIII records that the Republic
of South Africa shall accord the Members of the Commission
and Staff
Members, the delegates and other representatives of
Inter-Governmental Organisations attending the Meetings, the
privileges
and immunities set forth in Section C and D, Articles V
and VI of the General Convention on the Privileges and Immunities of
the
Organisation of African Unity
("the OAU Convention").
16.
The
Director General then refers to Section C, Article V (1) (a) and (g)
of the OAU Convention, which reads:
"1. Representatives
of Member States to the principal and subsidiary institutions, as
well as to the Specialized Commission
of the Organization of African
Unity, and to conferences convened by the Organization,
shall, while exercising
their functions and during their travel to and from the place of
meetings, be accorded the following privileges
and immunities:
(a)
Immunity from personal arrest or detention and from any official
interrogation as well as
from inspection or seizure of
the
personal baggage;
.....
(g) Such
other privileges, immunities and facilities not inconsistent with the
foregoing as diplomatic envoys enjoy,
except that they shall have no
right to claim exemption from customs duties on goods imported
(otherwise than as part of the personal
baggage) or from excise
duties or sales taxes."
17.
The
Director General further points out that the aforesaid provisions are
contained in the
Vienna
Convention
on
Diplomatic Relations, 1961
("the
Vienna Convention
'
),
which she asserts, has the force of law in terms of section 2
of the
Diplomatic
Immunities and
Privileges Act 37 of 2001 ("Immunities Act'
);
that article 29 of the
Vienna Convention
specifically
provides that the person of a diplomatic agent shall be inviolable,
that he shall not be liable to any form of arrest
or detention, that
the receiving State shall treat him with due respect and shall take
all appropriate steps to prevent any attack
on his person, freedom or
dignity; that accordingly and in order to give effect to the
provisions of the host agreement, the Minister
of International
Relations, the Fifth Respondent, on 5 June 2015 and in terms of the
provisions of section 5(3) of the
Immunities Act
read
with section 231 (4) of the
Constitution,
published Article VIII of the host agreement under Government
Gazette NO 38860 and thereby incorporated the privileges and
immunities
accorded delegates and attendees of the AU Summit as
provided for in the host agreement, as domestic law in South Africa.
18.
She
continues to state that she was advised that the provisions of
Article VIII of the host agreement are specific privileges and
immunities extended by the AU to all its delegates and attendees of
the AU Summit, which the hosting country of an AU Summit, the
Republic of South Africa in this instance, is required to uphold. She
then contends that the court is enjoined to take cognizance
of the
fact that the provisions of the host agreement read with the contents
of Government Gazette No 38860 are only effective
for the duration of
the AU Summit in South Africa, provided that the host agreement
specifically provides for its termination two
days after conclusion
of the AU Summit. She makes the point that by necessary implication,
the provisions of Article VIII would
cease to be effective after the
expiration of the aforesaid period.
19.
The
Director General states further that after having agreed to host the
AU Summit during June 2015, the Government of South Africa,
through
the appropriate diplomatic channels received confirmation from the
Republic of Sudan that President Bashir would attend
the AU Summit,
with a concomitant request by that country that President Bashir
should be granted the necessary privileges and
immunities as provided
for in Article VIII of the host agreement; that the Executive
Authority of the Republic of South Africa
received and discussed the
aforesaid request by the Republic of Sudan.
20.
The
Director General further states that she was advised that the
immunities and privileges referred to in Article VIII of the host
agreement (which she says is law in South Africa) prevent the
Respondents from arresting President Bashir during the duration of
the AU Summit and an additional two days after the conclusion of the
AU Summit. The Director-General of the Presidency and Secretary
of
Cabinet, Dr. Cassius Reginald Lubisi deposed to a supporting
affidavit stating that Cabinet was aware of the invitation from
the
AU to President Bashir to attend the AU Summit and that the President
indeed confirmed his attendance. Dr Lubisi also confirms
that Cabinet
was alive to the fact that the Republic of South Africa is a State
Party to the Rome Statute and therefore obliged
to give effect to any
request by the ICC pertaining to a warrant of arrest; that
accordingly and as a result of the two warrants
of arrest issued by
the ICC and the concomitant hosting of the AU Summit, Cabinet deemed
it prudent and necessary to deliberate
and discuss the issue on
whether the Republic of South Africa was required to arrest President
Bashir whilst attending the AU Summit;
that during early June 2015
Cabinet requested advice from the Chief State Law Advisor and
deliberated on this issue at length;
that during the said
discussions, Cabinet was apprised of the host agreement with the AU
together with the intention of promulgating
Article VIII of the host
agreement as well as the implications thereof regarding the
immunities and privileges enjoyed by President
Bashir as head of a
member state of the AU; that Cabinet collectively accepted and
decided that the South African Government as
the hosting country was
first and foremost obliged to uphold and protect the inviolability of
Prerident Bashir in accordance with
the AU terms and conditions and
to consequently not arrest him in terms of the ICC arrest warrants
whilst attending the AU Summit;
and that in addition to the above,
Cabinet collectively appreciated and acknowledged that the aforesaid
decision could only apply
for the duration of the AU Summit.
22.
The
assertions made by the Director General and Dr Lubisi formed the
essence of the submissions made on behalf of the Respondents
by Adv
Mokhari SC. The primary basis of the argument being essentially that
the promulgation of the notice by the 5th Respondent,
which embodied
the terms of the host agreement and which, in its terms, made
provision for the immunity of heads of AU member states
whilst
engaged in AU business, provided the requisite reprieve to South
Africa not to comply with its ICC obligations of arresting
President
Bashir during his attendance of the Summit.
23.
Appl
i
cant's
Argument
Against
this background, and Articles 86, 87 (1) and 89 of the Rome Statute,
Ms Goodman argued that where the ICC has made a request
for the
arrest and surrender of a person within a State party's jurisdiction,
the State party must comply with the request. South
Africa, by virtue
of its enactment of the
Implementation Act,
is bound by each
of those obligations both under international law and at the domestic
level. She submitted that in the present
context South Africa became
liable to arrest and surrender President Bashir as soon as he entered
the country. She further submitted
that the only basis on which the
State Respondents could avoid their obligation to arrest and
surrender President Bashir would
be if he enjoyed some kind of
diplomatic immunity from arrest, or from this court's jurisdiction.
24.
International
Law and the Constitution:
In
Glenister v The President of the
Republic of South
Africa and Others
2011 (3) SA 347
at par. 97,
Ngcobo CJ
enunciated the significance of International Law to the Constitution:
"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'.
In
South African
Human
Rights
Centre
v
National
Director
of
Public
Prosecutions and others
[2012] 3
All SA
198
(GNP),
(Zimbabwe
decision),
this
court (per Fabricius J) found that in line with South Africa's duties
and obligations as a signatory to the Rome Statute but
more
importantly arising from the
Implementation Act,
the South African Police Service was obliged to investigate
certain human rights violations committed in Zimbabwe.
25.
This
matter was taken on appeal but the Supreme Court of Appeal, in
National
Commissioner of
the
South
African Police
Service
v
Southern African Human
Rights Litigation
Centre
(para 10
supra)
confirmed the finding made by
Fabricius J. In a further appeal to the Constitutional Court, in
National
Commissioner of
the
South
African
Police
Service
v
Southern African
Human
Rights Litigation
Centre
and Another
2014 (12)
BCLR 1428 (CC)
that court strongly asserted
South Africa's duties and obligations arising in international law
and especially the Rome Statute
and the
Implementation
Act.
The Constitutional Court
said at par. 23 that the legislation must be interpreted purposely in
accordance with international law
and referred to s. 231 (4) of the
Constitution
which provided for the
domestication of international law through national legislation.
26.
It
must be stated at this juncture that the
Implementation
Act
as mentioned earlier is such
national legislation, and the State is bound to implement it. By way
of its enactment, the legislature
complied with its obligations as a
state party to the Rome Statute to take measures at national level
and to ensure national criminal
jurisdiction over the crimes set out
in the Rome Statute. This is clear from the long title of the
Implementation
Act
and the preamble also gives good insight into its motivation.
Note should also be taken of ss. 3 (a) and (b) which define the
objects
of the Act, which mainly are, in the present context, to
ensure that anything that is done in terms of this Act conforms with
the
obligation of the Republic in terms of the Statute. The decisions
of the SCA
(supra)
at par. 43 - 46 and the Constitutional
Court (supra) at para 23 are binding legal authority that must be
followed when considering
disputes regarding the duties of this
country arising from international law.
27.
The
Constitutional Court decision actually dispels any doubt about the
duties of South Africa in line with the
Implementation Act.
Crimes against humanity are referred to in
Part
2
of
Schedule
1
of the
Implementation Act
and include those
referred to in the first warrant of arrest issued against President
Bashir. Another case in point on South Africa's
duties in terms of
and arising from international law is
S
v
Okah
2013
JDR
0219
(GSJ).
In that matter a
Nigerian national resident in South Africa was convicted on 13 counts
of terrorist acts committed in Warri and
Abuja, Nigeria by the
Gauteng Local Division of the High Court. The prosecution was based
on the
Protection of
Constitutional
Democracy against Terrorist
and
Related Activities Act 33
of
2004.
This Act had domesticated a
number of international instruments and a Security Council resolution
aimed at combating, prosecuting
and punishing acts of international
terrorism. In the Okah matter the South African security agencies and
prosecution authorities
had clearly acted in keeping with South
Africa's duties in terms of international instruments in which the
country was a party.
28.
Claims to
i
mmunity:
Diplomatic
immunity is governed, as mentioned by the Director General of Justice
and Constitutional Development earlier, under South
African law, by
the
Immunities
Act.
28.1
Section 2 of the Immunities Act ratifies and domesticates the 1946
and 1947 United Nations
Conventions on Privileges and Immunities, and
the 1961 and 1963 Vienna Conventions on Consular and Diplomatic
Immunity. The former
confer immunity broadly on United Nations staff
and officials, and experts or organizations acting on their behalf.
The latter
confer immunity on consulates and their staff, and
diplomatic missions and their staff.
28.2
Section 4 of the
Immunities Act
recognises that heads
of state are immune from civil and criminal jurisdiction to the
extent afforded to them under customary international
law, or as
agreed to between South Africa and the relevant State party, or as
are conferred on them by the Minister of International
Relations.
28.3
The remaining sections of the Act afford the Minister of
International Relations
discretion to confer immunity and privileges
on various categories of people.
28.4
The Immunities Act does not domesticate the
OAU Convention
.
It is therefore not binding in South Africa, and the structures,
staff and personnel of the AU consequently do not automatically
enjoy
privileges and immunity in South Africa.
28.5
However, acting in terms of s 5 (3) of the
Immunities Act
,
the Minister has agreed with the African Union Commission on
Material and Technical Organisation (the AU Commission) to grant
privileges
and immunity to "Members of the Commission and the
Staff Members, [and] the delegates and other representatives of
Inter-Governmental
Organisations" attending the present AU
Summit. That agreement was published in the Government Gazette on 5
June 2015 - just
two days before the first AU meetings were due to
commence ("the host agreement").
28.6
The only grounds on which President Bashir could conceivably be
alleged
to enjoy immunity would be as a head of state or in terms of
the host agreement. But in fact, neither basis confers immunity on
him. Significantly however the notice promulgated by the 5th
Respondent makes no reference to section 4 of the
Immunities
Act.
28.7
The host agreement does not confer immunity on heads of state.
President
Bashir could thus only claim head of state immunity based
on customary international law.
28.8
However, the Rome Statute expressly provides that heads of state do
not
enjoy immunity under its terms. Similar provisions are expressly
included in the
Implementation
Act.
It
means that the immunity that might otherwise have attached to
President Bashir based on customary international law as head of
state, is excluded or waived in respect of crimes and obligations
under the Rome Statute.
28.9
Indeed, the Pre-Trial Chamber of the ICC has expressly confirmed that
"the
immunities granted to President Bashir under international
law and attached to his position as Head of State have been
implicitly
waived by the Security Council', and that South Africa is
consequently under an obligation to arrest and surrender him.
28.10
Clear1y and as submitted by Adv Goodman, the provisions of the host
agreement do not confer any immunities
or privileges on President
Bashir:
28.10.1
On its terms, that agreement confers immunity on members and staff of
the AU Commission, and on delegates and representatives
of
Inter-Governmental Organisations. It does not confer immunity on
Member States or their representatives or delegates.
28.10.2
Congruent with that, the host agreement was concluded under s 5 (3)
of the
Immunities Act,
which provides:
"(3)
Any organisation recognised by the Minister for 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)."
28.10.3
The provision
only
deals with the conferral of immunity and
privileges on an organisation, which is defined in s. 1 of the
Immunities
Act
as
"an intergovernmental organisation of which two or more states
or governments are members and which the Minister has recognised
for
the purposes of this Act". It does not deal with, or confer a
power to grant immunity on, a head of state, envoy or other
representative.
28.11
It follows that the host agreement also does not confer immunity on
President
Bashir, and cannot serve to exclude this Court's jurisdiction.
28.12
The
Immunit
i
es Act
,
at its highest, confers discretion on the Minister of
International Relations to grant immunities and privileges on persons
of her
choosing. But she must exercise that discretion lawfully, in
accordance with South Africa's domestic and international law
obligations.
She cannot lawfully exercise the discretion where the
effect will be to prevent the arrest and surrender of a person
subject to
an ICC warrant and request for surrender.
28.13
Nor can the State Respondents rely on the AU's Convention or
decisions to defend the validity
of the host agreement. Neither of
them can trump South Africa's obligations under the
Implementation
Act
and the Rome Statute, for the following reasons:
28.13.1
The Rome Statute gives effect to international
human rights law and
enables the prosecution of customary
international law crimes. As such, its provisions enjoy pre-eminence
in our constitutional
regime. Moreover, it has been domestically
enacted. Its binding status is clear.
28.13.2 By contrast, the
OAU Convention has not been domestically enacted. Despite the
Immunities
Act
having been
passed after the adoption of the OAU Convention, it was not ratified.
That represents a clear choice by the Legislature
not to confer
blanket immunity on AU bodies, meetings and officials that attend
them.
28.13.3 Decisions of the
AU also cannot trump South Africa's obligations under the Rome
Statute. That is because their status in
domestic law is persuasive,
at best.
29.
The
Government Notice of 5 June 2015 issued by the Fifth Respondent in
Gazette No. 38860 reads as follows:
In accordance with the
powers vested in me by section 5 (3) of the diplomatic Immunities and
Privileges Act, 2001 (Act No. 37 of
2001), I hereby recognize
the "Agreement between the Republic of South Africa and the
Commission of the African Union
on the Material and Technical
Organization of the Meetings of the 30th Ordinary Session of the
Permanent Representatives Committee
from 7 to 9 June 2015; the 27th
Ordinary Session of the Executive Council from 10 to 12 June 2015 and
the 25th Ordinary Session
of the Assembly on 14 to 15 June 2015 in
Pretoria (7 and 8 June 2015) and Johannesburg (10 to 15 June 2015),
Republic of South
Africa" for the purposes of granting the
immunities and privileges as provided for In the Agreement between
the Government
of the Republic of South Africa and the
Commission of the African Union as set out in the Notice."
It
was issued in terms of the provisions of s 5 (3) of the Immunities
Act. It
"recognizes"
the mentioned Agreement between the Republic and the "Commission
of the African Union on the Material
and Technical Organization of
the Meetings ..."
Section
5 of the
Immunities Act
reads as follows:
"Immunities
and
privileges
of United Nations,
specialised agencies
and
other
international
organisations
(1)
The Convention on the Privileges and Immunities of the United
Nations, 1946,
applies to the United Nations and its officials in the
Republic.
(2)
The Convention on the Privileges and Immunities of the
Specialised
Agencies,
1947, applies to any specialised agency and Its officials in the
Republic.
(3
) Any organization recognised by the Minister for the purposes of
this section and any official of such organization enjoy such
privileges and immunities as may be provided for in any agreement
entered into with such organization or as may be conferred on
them by
virtue of section
7
(2)."
30.
It
is clear that neither the Minute, nor s 5 (3) refers to a Head of
State. Nor does Article VIII of said Agreement which per clause
1
reads as follows:
"The Government
shall accord the Members of the Commission and Staff Members, the
delegates and the representatives of inter-Governmental
Organizations
attending the Meetings the privileges and immunities set forth in
Sections C and D, Articles V and VI of the General
Convention on the
Privileges and Immunities of the OAU."
The
Agreement is between the Republic and the AU Commission and this is
recognised by the said
Minute of 5 June 2015. Article VIII does not refer to a Head of State
but to Members of the Commission and
other Inter Governmental
Organizations. It is also clear from the Preamble to the Agreement
that the Commission is charged
with the exclusive responsibility of
organizing, conducting and managing the meetings. No head of state
has this responsibility
and no such submission was advanced before
us. Furthermore, whilst the Fifth Respondent relied on s 5 (3) of the
Immunities
Act
and issued
the Minute in terms thereof, it is clear that s 4 of that Act
specifically deals with
'Immunities
and
Privileges of heads
of
state,
special
envoys
and
certain
representative
s
'
.
It reads as follows:
"Immunities and
privileges of heads of state, special envoys and certain
representatives
(1)
A head of state is immune from 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;
(b)
Are provided for in any agreement entered into with a state or
government whereby
immunities and privileges are conferred upon such
a head of state; or
(c)
May be conferred on such head of state by virtue of section
7
(2)
A special envoy or representative from another state,
government or
organisation is immune from the criminal and civil jurisdiction of
the courts of the Republic, and enjoys such privileges
as -
(a)
A special envoy or representative enjoys in accordance with the rules
of customary
international law;
(b)
Are provided for In any agreement entered into with a state,
government or organisation
whereby immunities and privileges are
conferred upon such special envoy or representative; or
(c)
May be conferred on him or her by virtue of section 7 (2).
(3 ) The Minister
must by notice in the Gazette recognize a special envoy or
representative for the purposes of subsection
( 2).
It
cannot be argued that section 5 applies to a Head of State according
to the basic principles of interpretation nor can s 4 (1)
(a) be used
to confer immunity on the President, as he does not enjoy immunity in
accordance with the rules of customary international
law. We have
already pointed out above that the 5th Respondent did not rely on
this section in any way in her notice.
31.
The
Respondents' reliance on these documents is therefore ill-advised and
ill founded. They could not possibly "trump"
the
international agreement, the Rome Statute, and the subsequent
Implementation Act.
In any event the
Implementation
Act
enjoys legislative authority, having passed
through Parliament, and it cannot be displaced by a notice
promulgated by a Minister
nor by a Cabinet decision. Finally, the
decision of the ICC Pre Trial Chamber
On the Cooperation
of the Democratic
Republic
of the Congo regarding Omar Al Bash/r's arrest and
Surrender
to
the Court
No
ICC 02
1
05-0
1
1
09
dated 9 April 2014 bears mention. The facts in that matter
bear a striking resemblance to the facts in the matter we are dealing
with. In that matter President Bashir had attended a Common Market
for Eastern and Southern Africa (COMESA) meeting hosted by the
Democratic Republic of the Congo ("
DRC
") in
Kinshasa. The ICC had issued a request to the DRC as a signatory to
the Rome Statute to arrest President Bashir. This
did not happen as
the DRC stated that as a signatory to the Rome Statute on the one
hand and a member of the AU on the other, it
had been placed in a
difficult situation and that time constraints rendered it materially
impossible to take a decision to arrest
the President especially
considering that the President had left the country early in the
morning. The DRC had also contended that
President Bashir enjoyed
certain immunities as a result of his position as Head of a Member
State of the AU and further that the
AU had decided on 12 October
2013 that no serving Head of State or Government shall be required to
appear
before
any international court or tribunal during their term of office.
32.
The
DRC had further argued that the request to arrest and surrender
President Bashir became inconsistent with its obligation to
respect
the immunities attached to his position as Head of State. The ICC
jettisoned this argument on the basis of article 27(2)
as providing
an exception to the personal immunities of Heads of State and that
such immunities did not bar the court from exercising
jurisdiction
over such Head of State. Article 27(2)
provides:
"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." As to the
alleged
difficulty arising because of the
court's assertion of jurisdiction
on the one hand
and the AU's stance on the other, the court referred to Security
Council Resolution 1593 (2005) as well articles
25 and 103 of the UN
Charter. The essence of these provisions boils down to the fact that
Members of the UN, agree to accept and
carry out the decisions of the
Security Council. Further that in the event of a conflict in the
obligations of members of the UN
under the UN Charter and their
obligations under any other international agreement, their
obligations under the Charter would prevail.
For these reasons the
ICC Pre Trial Chamber dismissed the DRCs reasons for failing to
arrest President Bashir. The ineluctable
conclusion borne out by this
ruling is that the Respondents' argument based on immunities provided
for in the host agreement and
on AU membership is misguided.
33.
One
last important aspect deserves mention: The Respondents' argument was
solely founded on the relevant Statutes and legislative
documents.
Neither in the Answering Affidavits nor during argument, was any
question of necessity raised, namely that the government
of South
Africa was justified in disobeying the order of 14 June 2015, or
ignoring its domestic and international obligations in
terms of the
Implementation
Act
,
in order to preserve international relations, or relations
between AU members. Having regard to the principle of separation of
powers
between the executive, legislative and judicial arms of the
State, it is in any event clear that this court would not have
concerned
itself with policy decisions which in their nature fall
outside our ambit As a court we are concerned with the integrity of
the
rule of law and the administration of justice.
See:
National
Treasury
v
Opposition
to
Urban
Tolling Alliance
2012
(6) SA 223
CC
at
par. 63
-
67
.
34.
We
are further impelled to state that as a court of law we are obviously
the wrong forum for the ventilation of regional and international
policy considerations, which as we say above, were not ventilated
before us. We however find it prudent to invite the ICC to take
cognisance of the issues that arise in this matter. As we demonstrate
in this judgement, South Africa is not the only Rome Statute
signatory that has failed to carry out its duties in terms of that
Statute when it could have done so, based on a conflict between
its
regional affiliation on the one hand and its broader international
obligations on the other.
35.
For
all the foregoing reasons the order was granted on 15 June 2015, with
all members of the Full Court agreeing.
36.
The
departure
of
President
Bash
i
r
despite an order
prohibiting this.
We
dealt with the departure of President Bashir earlier in the face of
an order of this court handed down on Sunday 14 June 2015
which
prohibited such departure. Perhaps the questions that can be asked
about the apparent non compliance with this court's
explicit
order of Sunday 14 June are:
36.1
how was it possible that President Bashir would, with his whole
entourage,
travel from Sandton to Waterkloof Airbase, without any of
the Respondents' knowledge?
36.2
how was it possible that the Sudanese plane would take off from the
airbase
without the Respondents knowing whether the President was on
board or not?
36.3
how would that plane be able to land in Sudan by late afternoon if it
had not
departed at about noon that same day?
37.
The
answers suggest themselves, and without intending to pre-empt the
proceedings that may follow once the affidavit this court
has ordered
is received, it is necessary, in the interests of justice and the
rule of Jaw to say the following:
37.1.
The
Respondents are quite avvare of the provisions of ss. 1 and 2 of the
Co
n
stitution
which declare
that the State is founded on the supremacy of the
Constitution
and the rule of law. They are also aware of the constitutional
enjoinder that international agreements bind the Republic, especially
those that have been ratified (s. 231). They are obviously bound to
comply with domestic legislation and obviously the
Implementation
Act
.
They must also be aware of
s. 165 of the Constitution, which reads as follows: "165
Judicial Authority
(1)
The judicial authority of the Republic is vested in the courts.
(2) The courts are
Independent and subject only to the Constitution and the law, which
they must 11pply impartially and without
fear, favour or prejudice.
(3) No person or organ of
state may interfere with the functioning of the courts.
(4)
Organs of state, through legislative and other measures, must assist
and protect the
courts to ensure the independence, impartiality,
dignity, accessibility and effectiveness of the courts.
(5)
An order or decision issued by a court binds all persons to whom and
organs of state
to which it applies."
37.2
At
this stage, on a common sense approach, there are clear indications
that the order of Sunday 14 June 2015 was not complied with.
It is
for this reason that we are moved to state that:
A
democratic State based on the rule of law cannot exist or function,
if the government ignores its constitutional obligations and
fails to
abide by court orders. A court is the guardian of justice, the
corner-stone of a democratic system based on the rule of
law. If the
State, an organ of State or State official does not abide by court
orders, the democratic edifice will crumble stone-by
stone until
it collapses and chaos ensues.
38.
In
the context of s. 165 of the
Constitution of
South
Africa,
the
Constitutional Court has also confirmed that principles of the rule
of law are indispensible cornerstones of our constitutional
democracy.
See:
Justice Alliance
of South Africa
v
The President
of the Republic
of South
Africa
2011
(5)
SA
388
at par. 40.
The emphasis must be on "indispensible". Where the rule of
law is undermined by Government it is often done
gradually and
surreptitiously. Where this occurs in court proceedings, the court
must fearlessly address this through its judgments,
and not hesitate
to keep the executive within the law, failing which it would not have
complied with its constitutional obligations
to administer justice to
all persons alike without fear, favour or prejudice.
39.
We
stated earlier that the departure of President Bashir form this
country before the finalisation of this application and in the
full
awareness of the explicit order of Sunday 14 June 2015, objectively
viewed, demonstrates non compliance with that order.
For this
reason we also find it prudent to invite the National Director of
Public Prosecutions to consider whether criminal proceedings
are
appropriate.
JUDGE
D MLAMBO
JUDGE
PRESIDENT OF THE GAUTENG DIVISIONION OF THE HIGH COURT,
PRETORIA
JUD · E A P.
LEDWABA
DEPUTY
JUDGE PRESIDENT OF THE GAUTENG DIVISION OF THE HIGH
COURT,
PRETORIA
JUDGE H. J. FABRICUS
JUDGE
OF THE GAUTENG DIVISION OF THE HIGH COURT, PRETORIA
Case
number: 27740/15
Counsel
for the Applicant: Adv I. Goodman Instructed by:Webber Wentzel Inc
Johannesburg
Counsel
for the Respondents: Adv I. Ellis on 14 June 2015
Adv
Mokhari SC on 15 June 2015 with Adv I. Ellis
Instructed
by: The State Attorney
Date
of Hearing: 14 - 15 June 2015
Date
of Judgment: 24.June 2015 at 11:30