Judgment reserved in Bashir appeal bid

Pretoria - Judgment was reserved in an application by the South African government for leave to appeal a ruling that it should have detained Sudanese President Omar al-Bashir when he was in South Africa for an African Union (AU) summit.

A full bench of three judges of the High Court in Pretoria in June ruled that South Africa was compelled to arrest Al-Bashir and hand him over to the International Criminal Court (ICC) to stand trial on charges of war crimes, crimes against humanity and genocide in Darfur.

They also ruled that the government's failure to take steps to arrest Bashir was unconstitutional.

In strongly-worded reasons for their ruling, the judges said the democratic edifice would crumble stone by stone until it collapsed and chaos would ensue if the state did not abide by court orders.

They said a democratic state based on the rule of law could not exist or function if the government ignored its constitutional obligations.

Judge President Dunstan Mlambo, Deputy Judge President Aubrey Ledwaba and Judge Hans Fabricius also invited the National Director of Public Prosecutions to consider if criminal proceedings were appropriate.

Judge Fabricius on June 14 granted an interim order to the Southern African Litigation Centre (SALC) to keep Bashir in the country.

The full bench granted an order on June 15 for his arrest, pending a formal request by the ICC, but he was allowed to leave while the matter was before court. The South African government maintained that as a sitting head of state, Bashir enjoyed absolute immunity and it would have been unlawful to arrest him.

It also maintained that the UN and not the government had invited Bashir.

On Friday, Jeremy Gauntlett, SC, representing the government, argued that the court had granted an order which potentially reached "to the death or retirement of President Bashir, which could be a very long time".

He said it was not unlikely that Bashir would visit the country or pass through South Africa again.

"This involves the conduct of international relations and gives rise to serious constitutional debate... It would not in principle be right to say the last word has been spoken on the issue.

"These are issues of fundamental importance to the constitutional and the international obligations of the country," he said.

Gauntlett argued that the order could affect other heads of state who were in a similar situation and could affect every future event of international significance to be held in South Africa.

"Whether South Africa is in a position to host African events without arresting invitees is of pressing practical relevance to government," he said.

He submitted that the court order imposed domestic legal obligations under a court order which was inconsistent with domestic legislation and international law and ventured into a sensitive area of foreign policy, which was within the heartland of the executive arm of government.

"The court's inference that government was able to prevent President Bashir's departure, but deliberately repudiated the order, is contrary to the evidence before court.

"In such circumstances there are good prospects that another court may come to a different conclusion on government's compliance with the interim order.

"There is every reason to afford both parties an opportunity to ventilate the decision on appeal. If this is not permitted, the practical legal effect will be that the question will never realistically arise again before a South African court, because no head of State liable to arrest would ever again enter South Africa.

"The implications for South Africa's conduct of its international relations are both clear and profound," he submitted.

Wim Trengove, SC, for the SALC, argued that the issue became moot when Bashir left the country and that any order granted on appeal would have no practical effect.

He said if they had been told during the course of the hearing that Bashir had left the country, they would not have continued with the application.

"The issue was whether government had a duty to arrest him. That duty disappeared when Bashir left.

"The matter is moot and this court has no discretion to grant leave to appeal... Courts do not settle academic issues.

"The court ceased to have jurisdiction when the general left the country," he said.

He submitted that it was entirely speculative to say Bashir might come back or that he or some other fugitive of justice might be invited to visit South Africa.

Trengove argued that there was in any event no prospect of success on appeal because the ICC Act placed a duty on the South African government to give effect to an ICC warrant and it made no difference if he was a sitting head of State.

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