Pretoria - A full bench of the High Court in Pretoria has dismissed government's application for leave to appeal against its ruling that South Africa was under an obligation to arrest Sudanese President Omar al-Bashir.
The ruling, delivered by Judge Hans Fabricius, was supported by Judge President Dustan Mlambo and Deputy Judge President Aubrey Ledwaba.
The judges said President Bashir did not enjoy immunity from arrest or from prosecution under customary international law as a serving head of state and South Africa had a duty to arrest him.
The Southern Africa Litigation Centre in June obtained a court order that government must detain President Bashir for transfer to The Hauge to face charges of war crimes, crimes against humanity and genocide before the International Criminal Court (ICC).
Bashir was in South Africa to attend the African Union (AU) summit at the time, but was allowed to leave the country despite the court ruling.
Unlawful and unconstitutional
The judges thereafter found that government's conduct was unlawful and unconstitutional.
The ruling comes amid speculation that Bashir might visit South Africa again next month for the summit of the Forum for China-Africa Co-operation.
Government was of the view that it was under no obligation to arrest Bashir as he enjoyed absolute immunity as a sitting head of state while attending the AU summit.
It had issued a notice in terms of the Diplomatic Immunities and Privileges Act to immunise any delegate attending the AU summit, but the court found that the notice did not trump the provisions of the Implementation of the Rome Statute of the International Criminal Court Act.
South Africa is a member state of the ICC, a signatory to the Rome Statute and enacted it in domestic law under the Implementation Act.
The judges found that government's appeal would have no practical effect as the issue became moot once President Bashir had left the country.
"The facts before us are clear that there is no longer any live controversy between the parties... The appeal will therefore have no practical effect between the parties.
"We do not hold the opinion that the appeal has reasonable prospects of success at all."
Justice spokesperson Mtunzi Mhaga said they were disappointed with the ruling and would consider a petition to the Supreme Court of appeal for leave to appeal.
Government was of the view that the court ruling would affect future international events in South Africa and raised important questions of public international law arising from the interpretation of the Implementation and Immunities Act.