Minister of Justice and Constitutional Development and Others v The Southern Africa Litigation Centre (27740/2015) [2015] ZAGPPHC 675 (16 September 2015)

Minister of Justice and Constitutional Development and Others v The Southern Africa Litigation Centre (27740/2015) [2015] ZAGPPHC 675 (16 September 2015)

The court held that the appeal would have no practical effect or result because President Bashir had left South Africa and the controversy between the parties was no longer live. The Implementation Act prevails over the Immunities Act, and South Africa's obligations under the Rome Statute are clear and binding. The applicants failed to demonstrate reasonable prospects of success on appeal, and the court found no merit in the argument that it retained discretion to grant leave to appeal in the absence of such prospects or in moot matters. Accordingly, the application for leave to appeal was dismissed.

Citation
[2015] ZAGPPHC 675
Parties
Applicant: Minister of Justice and Constitutional Development; Applicant: Director-General of Justice and Constitutional Development; Applicant: Minister of Police; Applicant: Commissioner of Police; Applicant: Minister of International Relations and Cooperation; Applicant: Director-General of International Relations and Cooperation; Applicant: Minister of Home Affairs; Applicant: Director-General of Home Affairs; Applicant: National Commissioner of the South African Police Service; Applicant: National Director of Public Prosecutions; Applicant: Head of the Directorate for Priority Crimes Investigation; Applicant: Director of the Priority Crimes Investigation Unit; Respondent: Southern Africa Litigation Centre
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
16 September 2015
Case Number
27740/2015
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment on Merits
Outcome
Application for leave to appeal dismissed with costs, including costs of two counsel.
Judges
D Mlambo, A.P. Ledwaba, H. J. Fabricius
Legal Topics
Head of State Immunity, Implementation of Rome Statute, Diplomatic Immunities, Leave to Appeal, Mootness, Superior Courts Act
Public International Law Constitutional Law Civil Procedure Head of State Immunity Implementation of Rome Statute Diplomatic Immunities Leave to Appeal Mootness +1 more

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Parties

Minister of Justice and Constitutional Development

Applicant

Director-General of Justice and Constitutional Development

Applicant

Minister of Police

Applicant

Commissioner of Police

Applicant

Minister of International Relations and Cooperation

Applicant

Director-General of International Relations and Cooperation

Applicant

Minister of Home Affairs

Applicant

Director-General of Home Affairs

Applicant

National Commissioner of the South African Police Service

Applicant

National Director of Public Prosecutions

Applicant

Head of the Directorate for Priority Crimes Investigation

Applicant

Director of the Priority Crimes Investigation Unit

Applicant

Southern Africa Litigation Centre

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Judgment on Merits

Legal Issues

  1. 1 Whether the appeal would have any practical effect or result given that President Bashir had left South Africa.
  2. 2 Whether the Implementation of the Rome Statute of the International Criminal Court Act prevails over the Diplomatic Immunities and Privileges Act regarding arrest and surrender obligations.
  3. 3 Whether a sitting head of state enjoys immunity from arrest and prosecution under South African law and international law.

Ratio Decidendi

The court held that the appeal would have no practical effect or result because President Bashir had left South Africa and the controversy between the parties was no longer live. The Implementation Act prevails over the Immunities Act, and South Africa's obligations under the Rome Statute are clear and binding. The applicants failed to demonstrate reasonable prospects of success on appeal, and the court found no merit in the argument that it retained discretion to grant leave to appeal in the absence of such prospects or in moot matters. Accordingly, the application for leave to appeal was dismissed.

Court Disposition

Application for leave to appeal dismissed with costs, including costs of two counsel.

Orders

  • The application for leave to appeal is dismissed.
  • The applicants are ordered to pay the costs of the application, including the costs of two counsel.