On 15 March 2016, just 10 months after the judgement of the Gauteng High Court was handed down in the Al Bashir arrest warrant case, the Supreme Court of Appeal (SCA) delivered its judgement in the case The Minister of Justice and Constitutional Development v The Southern African Litigation Centre (867/15)  ZASCA 17. Legal proceedings were instituted by the Southern African Litigation Center (SALC) following the attendance of President of Sudan, Omar Al Bashir, to the African Union Summit of Heads of State that took place in Johannesburg from 15-16 June 2015, on the basis of the duty of South Africa to arrest and surrender him to the ICC.
Despite the fact that Al Bashir managed to leave South Africa before the judgement of the High Court was handed down, the Court nonetheless held that the conduct of the government was inconsistent with the Constitution to the extent that they had failed to take steps to arrest and detain Al Bashir (see The Southern African Litigation Centre v Minister of Justice and Constitutional Development & Others 2015 (5) SA 1 (GP).
The government attempted to appeal the decision however the application was dismissed on the basis that as Al Bashir had left the country, the decision would have no practical effect or result. The SCA judgement follows the Minister’s request for leave to appeal the order of the High Court.
The SCA granted the appeal and varied the High Court’s order to read that the failure to take steps to arrest Al Bashir after his arrival in South Africa on 13 June 2015 was inconsistent with South Africa's obligations under the Rome Statue and the Implementation Act of the Rome Statue of the International Criminal Court Act 2002, and that such a failure was unlawful.
In order to successfully convince the Court to grant the leave to appeal it was necessary for the government to adopt a new track of argument, providing a new basis to oppose the claim of the respondent and providing compelling reasons as to why the appeal should be heard. Departing from its previous lines of argument based on the provisions of the host agreement with the AU, the government therefore contended that the general immunity that a head of state enjoys under customary international law and section 4 of the Diplomatic Immunities and Privileges Act 2001 qualified the obligation of SA that would otherwise exist as a state party to Rome statute to arrest and surrender a head of state. The SCA agreed that head of state immunity existed under both customary international law and domestic law, however noted that the Implementation Act, which domesticates the provisions of the Rome Statute, excluded this immunity in relation to international crimes and South Africa’s obligations to the ICC.
Judge Malcom Wallis commented that this was a departure from current state practice on the matter i.e. that there is no exception to the immunity of heads of states even when a charge for the commission of international crimes is concerned.
Related case law: Southern African Litigation Centre v Minister of Justice and Constitutional Development and Others, Gauteng Division of the High Court of South Africa, 24 June 2015